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In Ferrer v. La Serna, 40 Fla. L. Weekly D2636a (Fla. 4th DCA Nov. 25, 2015), the 4th DCA held that the trial court had erred in granting plaintiff's motion for additur when the trial court did not provide any support for awarding an additur. In making this ruling, the 4th DCA found that the trial court's award of an additur without explanation or support for granting an additur was a clear abuse of discretion.

Plaintiff's vehicle was struck by defendant's vehicle at a low speed. Plaintiff did not seek medical attention until several days after the accident. Plaintiff's doctor found the accident had caused plaintiff acute distress, a neck injury, sprains and an aggravation of a preexisting back condition. The same doctor recommended that plaintiff not get chiropractic back adjustments as they could aggravate her condition. Plaintiff regularly received chiropractic adjustments despite her doctor's recommendation and approximately a year after the accident occurred, plaintiff developed radiating pain in her forearm.

Plaintiff's doctor as well as the defense's medical expert could not objectively correlate the accident to the radiating pain. Only plaintiff's chiropractor was certain that the accident resulted in plaintiff's symptoms. Plaintiff filed suit seeking $11,695.31 for past and future medical expenses. The jury awarded plaintiff $8,000 in damages. Plaintiff moved for additur, arguing the evidence was undisputed and that she should be awarded an additur for the difference between what she requested and what the jury awarded. The trial court granted plaintiff's motion without an explanation in its order.

On appeal to the 4th DCA, defendant argued that the trial court had erred when it failed to include in its order the justification for additur. Defendant requested that the appellate court conduct an independent review of the record as to whether an additur should have been awarded. The 4th DCA noted that the trial court did not even reference the factors that are set out by § 768.043, Fla. Stat. that allow a trial court to grant an additur if it concludes the amount awarded was clearly inadequate.

In its judgment, the 4th DCA reiterated its decision in Airstar, Inc. v. Gubbins, 668 So. 2d 311, 312 (Fla. 4th DCA 1996), which stated that when awarding an additur, a trial court must provide its findings in support of the award. The 4th DCA also referred to its decision in Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4th DCA 1998) that an additur is an appropriate remedy only where a damage award is so inadequate as to "shock the conscience" of the trial court and that a trial court's award is only reversed where there is a clear abuse of discretion. Last, the 4th DCA referred to its decision in Ortlieb v. Butts, 849 So. 2d 1165 (Fla. 4th DCA 2003), which recognized that where evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, a trial court may not award additur.

In the present case, the evidence was conflicting regarding whether the accident caused the radiating pain in plaintiff's arm. Because the evidence was in conflict, the jury could have concluded, consistent with the evidence, that the costs associated with plaintiff's radiating pain were unrelated to the accident. The 4th DCA found the record did not support the additur and reversed the trial court's decision. The 4th DCA further found that the trial court had abused its discretion when it awarded an additur without stating its findings in support of granting an additur.



 

This summary is presented by Bucky Hurt of our firm.


Bucky Hurt

 

 

40 Fla. L. Weekly D2636a

 

Torts -- Automobile accident -- Damages -- Past and future medical expenses -- Additur -- Error to grant plaintiff's motion for additur without including in order an explanation why additur was warranted or providing option for new trial in lieu of additur -- Moreover, additur was not appropriate where evidence was conflicting regarding cause of radiating pain in plaintiff's arm, so that jury could have concluded that costs associated with radiating pain were unrelated to automobile accident

ANTONIO FERRER, Appellant, v. ANA LA SERNA, Appellee. 4th District. Case No. 4D14-2475. November 25, 2015. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marina Garcia-Wood, Judge; L.T. Case No. 11-031247 (18). Counsel: Michael J. Neimand, General Counsel of United Automobile Insurance Company, Miami, for appellant. Nancy Little Hoffman of Nancy Little Hoffman, P.A., Fort Lauderdale, for appellee.

(LEVINE, J.) The issue in this case is whether the trial court erred in awarding additur. We find that the trial court erred in not providing its findings in support of additur. Furthermore, because the evidence was conflicting and the jury could have reached its verdict consistent with the evidence, we reverse with instruction to reinstate the jury verdict.

Antonio Ferrer struck Ana La Serna's car at a low speed. Although she did not go see a doctor immediately, a few days later La Serna went to see her doctor, Dr. Epstein. Dr. Epstein found the accident had caused La Serna acute distress, a neck injury, sprains, and an aggravation to a preexisting back condition. Epstein also discovered La Serna suffered from a degenerative spinal condition. Although the accident had not caused the condition, it had resulted in the condition becoming symptomatic.

Dr. Epstein recommended La Serna not get chiropractic back adjustments as they could aggravate her condition. Despite Dr. Epstein's recommendation, La Serna received chiropractic back adjustments from Dr. Rodriguez on a regular basis, multiple times a week, for several months.

Nearly a year after the accident, La Serna started to feel a radiating pain in her forearm. Dr. Epstein thought the inflammation in her neck caused the radiating pain in her arm, but was unable to objectively correlate the accident to the radiating pain. Dr. Troiano, who was retained by the defense, also indicated there were no objective findings to support a connection between La Serna's radiating pain and the car accident. Dr. Rodriguez, however, expressed "one hundred percent" certainty that the accident resulted La Serna's symptoms.

La Serna sued Ferrer for motor vehicle negligence, seeking $11,695.31 for past and future medical expenses. The jury returned a verdict for La Serna and found she had suffered a permanent injury. The jury awarded her $8,000 in damages for past and future medical expenses.

La Serna moved for additur, arguing the evidence was undisputed and that she should be awarded an additur for $3,695.31, the difference between what she requested and what the jury awarded. The trial court granted La Serna's motion. However, its order contained neither an explanation for why additur was warranted nor an option for a new trial in lieu of additur.

On appeal, Ferrer argues the trial court erred when it failed to include in its order the justification for additur or the option for a new trial. Ferrer requests that this court conduct an independent review of the record to determine whether the facts of this case permit an additur award.

A trial court's additur award is reversed only where there has been a clear abuse of discretion. Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4th DCA 1998).

Pursuant to section 768.043, Florida Statutes, a trial court may grant additur if the court determines the amount awarded was clearly inadequate. The statute sets forth the factors the court must consider before awarding additur:

(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2)(a)-(e), Fla. Stat.

Furthermore, when awarding additur, the trial court must provide its findings in support of the award. See Airstar, Inc. v. Gubbins, 668 So. 2d 311, 312 (Fla. 4th DCA 1996). If the trial court fails to set forth its findings, ordinarily the appellate court will relinquish jurisdiction so the trial court can specify its grounds for awarding additur. Id. However, where it is apparent from the record that awarding additur was an abuse of discretion, we will reinstate the jury verdict. See id. at 312-13.

In the present case, the trial judge's order did not set forth any findings in support of additur nor did it reference the statutory criteria. Although normally we would relinquish jurisdiction so the trial court could make the requisite findings, a review of the record leads us to conclude the trial court abused its discretion.

"Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court." Aurbach, 721 So. 2d at 758. Thus, where the "undisputed evidence" supports an award of damages and the jury fails to make such an award, the trial court must award additur. See Ortlieb v. Butts, 849 So. 2d 1165, 1167 (Fla. 4th DCA 2003). But where the "evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence," the trial court may not award additur. Id.

In Airstar, the evidence was in "sharp conflict" as to whether the plaintiff suffered a permanent injury as a result of a car accident. Airstar, 668 So. 2d at 312-13. Although the jury returned a verdict finding the plaintiff had not suffered permanent injury, the trial court granted additur. Upon examining the record, this court found the jury could have reached its verdict in a manner consistent with the evidence. Thus, to award additur, the trial court would have had to come to a conclusion contrary to the jury's. "Mindful that a trial judge should not sit as a seventh juror with veto power," we reinstated the verdict. Id. at 313.

In this case, the evidence was conflicting regarding whether the accident caused the radiating pain in La Serna's arm. Of the doctors who testified, only the chiropractor, Dr. Rodriguez, was able to say with certainty that the accident caused La Serna's symptoms. The other testimony was, at best, equivocal, because the doctors were unable to objectively establish the accident caused La Serna's radiating pain. Furthermore, Dr. Epstein told La Serna that she should not get chiropractic neck adjustments because it could aggravate her symptoms. La Serna nevertheless got her neck adjusted multiple times a week for several months.

Because the evidence was in conflict, the jury could have concluded, consistent with the evidence, that the costs associated with La Serna's radiating pain were unrelated to the accident. See id. For the trial court to have granted additur, it would have had to come to the opposite conclusion and determined the accident caused La Serna's radiating pain. Id. Therefore, because the "undisputed evidence" did not support an award of additur, we remand to the trial court with instruction to reinstate the jury's verdict. See Ortlieb, 849 So. 2d at 1167.

In summary, we hold the trial court erred when it did not state its findings in support of additur in the record. We further hold the trial court abused its discretion in awarding additur because the record does not support the award.1

Reversed and remanded. (DAMOORGIAN and KLINGENSMITH, JJ., concur.)

__________________

1. Although we reverse on the ground that the trial court abused its discretion in awarding additur, we further note the trial court erred when it failed to provide Ferrer the option of a new trial. See Concept, L.C. v. Gesten, 662 So. 2d 970, 974 (Fla. 4th DCA 1995).








 



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