Antonio Ferrer v. Ana La Serna , 2015 Fla. App. LEXIS 17905 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTONIO FERRER,
Appellant,
v.
ANA LA SERNA,
Appellee.
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).
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
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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
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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.
* * *
Not final until disposition of timely filed motion for rehearing.
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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