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however, that under Florida law the award of prejudgment interest
on petitioner’s fraud claim supports the conclusion that
petitioner did not receive the compensatory damages on account of
personal injuries. Under Florida law, prejudgment interest is
ordinarily not recoverable for personal injury actions, because
“the amount and the measure of damages is largely discretionary
with the jury and is in consequence unliquidated until the
trial”. Farrelly v. Heuacker, 159 So. 24, 25 (Fla. 1935); see
also Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214
n.1 (Fla. 1985); Zorn v. Britton, 162 So. 879 (Fla. 1935).5 For
similar reasons, prejudgment interest is ordinarily not available
as a remedy for an action in tort under Florida law, although
prejudgment interest may be awarded where there is an
ascertainable out-of-pocket loss as the result of the loss of
4(...continued)
in explaining what constitutes damage sufficient to
warrant actionable fraud * * *. Early cases reflect a
requirement that the injury sustained must ordinarily
be pecuniary in nature. Other Florida decisions seem
to align themselves with the general rule * * * [that]
Damage need not be subject to accurate measurement in
money, but may result from the fact that the defrauded
party has been induced to incur legal liabilities or
obligations different from those represented or
contracted for. * * * [Citations omitted.]
5 Under Florida law, a personal injury plaintiff may be
entitled to prejudgment interest on medical expenses, but only
when the plaintiff shows that he has made actual out-of-pocket
payments for those expenses prior to judgment. Alvarado v. Rice,
614 So. 2d 498, 500 (Fla. 1993). However, this exception to the
general rule applies because such a plaintiff suffers the loss of
a vested property right; namely the loss of use of his money.
Id. In any event, petitioner has not alleged physical harm, and
the record is devoid of any evidence of any medical expenses that
he incurred.
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