Donovan v. Royal Caribbean Cruises, Ltd.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 19-21220-CIV-COOKE/GOODMAN

PATRICIA MORRISON,

Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD,

Defendant.

__________________________________/

ORDER GRANTING MOTION TO STRIKE EIGHTH AFFIRMATIVE DEFENSE

Plaintiff Patricia Morrison filed [ECF No. 8] a motion to strike the Eighth

Affirmative Defense raised by Defendant Royal Caribbean Cruises, Ltd. (“RCCL”) in its

Answer [ECF No. 5] to this personal injury lawsuit. RCCL’s defense is: “Defendant is

entitled to a setoff for any and all collateral source benefits paid or payable to Plaintiff.”

[ECF No. 5, p. 5]. RCCL filed an opposition response [ECF No. 10] and Morrison filed a

reply [ECF No. 11]. United States District Court Judge Marcia G. Cooke referred the

motion to the Undersigned. [ECF No. 15].

The Undersigned grants the motion because RCCL’s answer, as currently phrased,

violates the well-established collateral source rule.

This lawsuit concerns a passenger who was allegedly injured when she tripped

over an ashtray which was obscured by a vacant wheelchair left in the walkway of a

casino on RCCL’s Enchantment of the Seas.

In its opposition response, RCCL says that it advised Plaintiff’s counsel that it

“would amend affirmative defense number 8” to provide the following clarification:

Plaintiff may only introduce into evidence the amount of medical bills and

costs paid by collateral sources (rather than the billed amount).

Alternatively, Defendant is entitled to a post-verdict setoff for any and all

collateral source benefits paid or payable to Plaintiff.

[ECF No. 10, p. 2 (emphasis added)].

Despite this offer, however, RCCL never actually amended its answer or filed a

motion to amend its answer. So the Undersigned is left with the original affirmative

defense, as originally phrased (i.e., not making a distinction between money paid by

collateral sources for medical treatment and money billed by healthcare providers but

not paid by collateral sources). Had RCCL followed through and amended the answer to

reflect this distinction, then this ruling would have been different. The discussion

outlined below explains why.

The so-called collateral source doctrine is an affirmative defense. Hassan v. United

States Postal Serv., 842 F.2d 260 (11th Cir. 1988). The general maritime law applicable to

this case bars a tortfeasor from mitigating damages by setting off compensation received

by the plaintiff from an independent source. Borque v. Diamond M. Drilling Co., 623 F.2d

351, 354 (5th Cir. 1980);1 see also Hillenburg v. Carnival Corp., No. 16-22091-CIV, 2016 WL

5922756, at *1 (S.D. Fla. Sept. 21, 2016) (“In attempting to reduce the amount of damages

by the amount of benefits paid or payable to the plaintiff by a collateral source, Carnival

. . . runs squarely against the collateral-source rule.”); Baptista v. Carnival Corp., No. 1:17-

CV-22115-KMM, 2018 WL 1226041, at *1 (S.D. Fla. Mar. 5, 2018) (“The collateral source

rule prohibits evidence that a plaintiff was compensated by a third-party source, like a

health insurance provider.”); Brown v. NCL (Bahamas) Ltd., No. 15-21732-CIV, 2016 WL

8730145, at *5 (S.D. Fla. Oct. 13, 2016) (“Defendant is prohibited from introducing

evidence or argument of past or future collateral source payments of Plaintiff’s medical

bills.”).

However, although there is no binding Eleventh Circuit case on point, many of the

judges in this district, including the Undersigned, have also held that “(1) only the

amounts of medical bills that represent the amounts actually paid by a third party for a

plaintiff’s medical care are a collateral source; and (2) no collateral source benefit is

conferred for an amount billed but not paid and, therefore, a plaintiff would obtain an

improper windfall if he or she were permitted to recover damages for the billed-but-not-

paid amount or to recover for bills that were written off.” Gharfeh v. Carnival Corp., No.

17-20499, 2019 WL 186864, at *6 (S.D. Fla. Jan. 14, 2019).

1 Borque is binding in this circuit pursuant to Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir. 1981) (finding decision of the former Fifth Circuit entered on September

30, 1981 would be binding on all federal courts within the Eleventh Circuit).

In addition to the Undersigned’s ruling in Gharfeh, other district courts have

followed this rule which distinguishes between amounts billed but written off or

discounted and bills actually paid. See also Diczok v. Celebrity Cruises, Inc., No. 16-21011-

CIV, 2017 WL 3206327, at *3 (S.D. Fla. July 26, 2017) (emphasis added) (“An abundance

of case law in this District holds that, under general maritime law, recoverable medical

expenses are limited to those actually paid by the plaintiff.”); Szczurko v. Celebrity Cruises,

Inc., U.S. District Court for the Southern District of Florida, Case No. 15-20592-UU, ECF

No. 41 (Dec. 30, 2015) (emphasis added) (granting cruise ship operator’s motion in limine

to preclude plaintiff from introducing evidence of medical charges “written off” by her

providers and “agree[ing] with the abundant case law within this District finding that

Plaintiff is precluded from admitting evidence of the amount billed by healthcare

providers, rather than amount actually paid”); Underwood v. NCL (Bahamas) Ltd., No. 17-

24492, 2019 WL 1559026, at *3 (S.D. Fla. April 10, 2019) (citing Gharfeh, 2019 WL 186864,

at *1).

As explained in Underwood, “the collateral source rule does not and should not

allow Plaintiff to introduce all her medical bills, including those she or a third party was

never required to pay” because, “if it did, Plaintiff would be allowed to obtain an

improper windfall” for the billed amount, instead of the value of her actual medical

expenses. Id. at *6.

As phrased (as opposed to the never-formally-implemented offer), RCCL’s eighth

affirmative defense runs afoul of the still-valid collateral source rule for amounts actually

paid, and Morrison’s motion to strike is therefore granted. However, subject to

evidentiary rulings made by Judge Cooke, who will preside at trial, Morrison will not be

permitted to introduce medical bills which were discounted or written off or not paid --

and RCCL will likewise not be permitted to introduce evidence to show that Morrison

has already been compensated for the medical costs she incurred, and which were, in fact,

paid.?

DONE AND ORDERED in Chambers, in Miami, Florida, on October 1, 2019.

/ A fig i ee a

Li Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Marcia G. Cooke

All counsel of record

2 The substantive collateral source rule carries an evidentiary component, which

“prohibits the introduction of evidence offered to show that the [plaintiff] already has

been compensated for his injuries.” Borque, 623 F.2d at 354.