RAUL CORZO, ET AL.

v.

ANGEL MONTERO

Third District Court of Appeal State of Florida

Opinion filed January⁸, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0123 Lower Tribunal No. 17-104 ________________

Raul Corzo, et al., Appellants,

vs.

Angel Montero, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.

Cole, Scott & Kissane, P.A., Scott Cole, and Carly M. Weiss (Orlando), for appellants.

Fischer Redavid, PLLC, and Terry P. Roberts (Hollywood), for appellee.

Before FERNANDEZ, BOKOR, and GOODEN, JJ.

GOODEN, J.

2

Appellants Raul Corzo and Marianeca Corzo appeal an order granting a new trial. Because the trial court’s order is not supported by the record, we find that the trial court abused its discretion. We reverse the order granting a new trial and remand for the trial court to rule on the other grounds set forth in the motion for new trial.

I.

On a rainy November day in 2015, Raul Corzo operated a vehicle owned by his mother, Marianeco Corzo. Appellee Angel Montero and his wife were stopped at a red light. Corzo approached. While Corzo tried to avoid rear-ending Montero, he failed to do so and struck the back of the vehicle. Fire rescue was dispatched to the scene. However, Montero made no complaints of injuries and received no medical care. Montero did not go to the hospital. Two days after the accident, Montero first sought medical treatment. He presented to a clinic with complaints of pain in both knees, both shoulders, neck, and back. Ultimately, Montero had twenty-one physical therapy sessions focused primarily on his neck and back. Montero’s pain in his neck, back, and left shoulder resolved after this treatment. Radiologists noted several degenerative findings on Montero’s x-rays and MRIs. For decades, Montero performed hard physical labor in the

Six months after the accident, Montero saw Dr. John Wilkerson, an orthopedic surgeon. Dr. Wilkerson diagnosed Montero with medial meniscus tears in both knees and a rotator cuff tear in his right shoulder. He later performed an arthroscopic right knee surgery on Montero. During the procedure, Dr. Wilkerson noted grade⁴ chrondromalacia, which he conceded was not related to the automobile accident. Dr. Wilkerson also recommended Montero undergo a rotator cuff repair and a left knee arthroscopy. However, Montero did not undergo these procedures. After the 2016 surgery, Montero returned to physical therapy. He also periodically visited Dr. Wilkerson between 2017 and 2019, and reported pain in both knees and the right shoulder. Then, Montero had a substantial gap in treatment of three and a half years. He next saw Dr. Wilkerson in August 2022. In 2017, Montero filed suit against the Corzos for personal injuries. The Corzos admitted fault for the accident, but contested causation, permanency,

1 Montero continued to work after the accident.

During the new trial on causation, permanency, and damages, the jury found that Corzo was the legal cause of Montero’s injuries, and that Montero did not suffer a permanent injury as a result of the accident. It did not award non-economic damages.

Montero moved for a new trial asserting: 1) the verdict was “inadequate” because it was “undisputed” he sustained a permanent injury; 2) the trial court erred by rejecting his proposed verdict question on permanency, which included “whole or in part” language; and³) the jury’s finding of no permanent injury was contrary to the greater weight of the

2 This is sometimes called untethering damages. In theory, it allows plaintiff’s counsel to suggest an amount for pain and suffering untethered or unconnected to the cost of the medical care provided. This often occurs when the amount of past medical expenses is low.

The parties argued the other grounds; however, the trial court did not rule on them. This appeal followed.

II.

We review an order granting a motion for new trial for an abuse of discretion. Brown v. Estate of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). Nevertheless, a trial court’s discretion in this regard is not unbridled or limitless. Wackenhut Corp. v. Canty, 359 So. 2d 430, 434 (Fla. 1978). “In other words, the trial judge does not sit as a seventh juror with veto power.”

3 While we focus on the testimony of two expert witnesses, there was other conflicting evidence: Montero did not report any injuries at the scene; he did not receive initial physical therapy to his knees; he continued to work a physically-demanding job after the accident; he continued to travel abroad and vacation after the accident; he had preexisting complaints which led to surgery to his knee; and his x-rays and scans showed degenerative findings. See generally Wald, 64 So. 3d at 1206. In addition, Montero’s credibility was called into question.

A: I believe that a rotator cuff tear is a permanent injury, yes, ma’am.

Q: And you would agree that a torn meniscus is a permanent injury, right?

A: Yes, I do.

Viewing this testimony in a vacuum led the trial court astray. The PIP statute sets forth the permanency threshold: (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

9 (a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

§ 627.737(2)(a)-(d), Fla. Stat. (2015). By using the words “because of” and “arising out of,” this statute requires that the permanent injury be caused by the accident in question. See Wald, 64 So. 3d at 1207 (“Thus, as long as part of the bodily injury arising out of the motor vehicle accident involves a permanent injury ‘within a reasonable degree of medical probability,’ the plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident.”).⁴

4 The jury was aware of this requirement as it was correctly instructed. Before closing arguments, the trial court read the standard jury instructions:

First, you must decide whether Angel Montero’s injury resulting from the incident in this case is permanent.

An injury is permanent if it, in whole or in part, consists of: (1) one a significant and permanent loss of an important bodily function or, (2) a significant and permanent scarring or disfigurement or, (3) three an injury that the evidence shows is permanent to a reasonable degree of medical probability.

See Fla. Std. Jury Instr. 501.3.

10 To recover noneconomic damages in automobile accident cases, plaintiffs must show that they sustained a permanent injury from the accident. It is insufficient for a plaintiff to show a permanent injury absent a showing of a causal nexus between that permanent injury and the subject accident. Stated differently, it is not enough for a plaintiff to simply have a permanent injury. That permanent injury must be caused by the accident in question. The entire record demonstrates conflict in the evidence concerning whether Montero sustained a permanent injury as a result of the accident. Dr. Wilkerson and Dr. Fernandez provided contrary opinions. Indeed, Dr. Fernandez never conceded on cross-examination that Montero sustained a permanent injury. The questions were general in nature and not tied to Montero or the accident. Therefore, the trial court’s finding that it was “undisputed, unimpeached, and not otherwise subject to question based on the expert medical testimony and the other evidence presented at trial” is wholly unsupported by the record. It was the jury’s province to resolve the conflict in the evidence. It did so and found Montero did not sustain a permanent injury as a result of the accident. Because the findings in the trial court’s order were not supported by the record, the trial court abused its discretion. Accordingly, we reverse the