Pinney v. Carrera

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 43
IN THE
SUPREME COURT OF THE STATE OF UTAH
KATHLEEN PINNEY,
Respondent,
v.
RICARDO CARRERA,
Petitioner.
No. 20190117
Heard February 10, 2020
Filed July 6, 2020
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Paige Petersen
No. 150900750
Attorneys:
Blake W. Johnson, Orem, for respondent
Barbara K. Berrett, Matthew H. Wood, Salt Lake City, for
petitioner
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUDGE PULLAN joined.
Having recused herself, JUSTICE PETERSEN does not participate
herein; DISTRICT COURT JUDGE DEREK P. PULLAN sat.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 In this automobile accident case, defendant Ricardo
Carrera raises two challenges to a general-damages award granted
to plaintiff Kathleen Pinney. First, Mr. Carrera argues that
Ms. Pinney should not have received any general damages,
PINNEY v. CARRERA
Opinion of the Court
because she failed to satisfy the requirements set out in Utah Code
section 31A-22-309, a prerequisite to receiving general damages in
most automobile accident cases. Specifically, Mr. Carrera argues
that Ms. Pinney failed to satisfy the statutory requirement because
she did not show that she sustained a “permanent disability or
permanent impairment based upon objective findings.”1
¶2 Although Mr. Carrera concedes that Ms. Pinney presented
evidence of a permanent impairment, he argues that this evidence
does not satisfy the statute, because it was tainted by the personal
bias of Ms. Pinney’s treating physician. So Mr. Carrera interprets
the statutory phrase “based upon objective findings” to require
findings that are untainted by bias. We disagree. Instead, we
interpret the phrase “based upon objective findings” to require
only that findings regarding a permanent disability or impairment
be based on externally verifiable phenomena, rather than on an
individual’s subjective perceptions or feelings regarding the injury.
Accordingly, Mr. Carrera’s statutory argument fails.
¶3 Alternatively, Mr. Carrera argues, under Rule 59 of the
Utah Rules of Civil Procedure, that a new trial on the amount of
damages should be granted. The crux of Mr. Carrera’s argument on
this point is that the amount of general, or noneconomic, damages
Ms. Pinney was awarded—$300,000—is excessively
disproportionate to the economic damages awarded in this case—
$0. In making this argument, Mr. Carrera does not attempt to rebut
any of the evidence Ms. Pinney presented regarding her pain and
suffering—evidence relevant to an award of general damages.
Instead, he focuses on Ms. Pinney’s failure to present evidence that
would support an award of specific damages. But because specific
and general damages are aimed at measuring different types of
harm, the fact finder is free to consider different factors in
calculating an appropriate amount for each type of award. So there
is no reason why the amount of one type of damage award would
need to be proportional to the other. Accordingly, Mr. Carrera’s
proportionality argument also fails.
Background
¶4 After running a stop sign, Ricardo Carrera crashed into a
vehicle driven by Kathleen Pinney. Ms. Pinney brought a civil
action against Mr. Carrera for damages. At trial, Ms. Pinney
focused on non-economic (or general) damages that resulted from
__________________________________________________________
1 UTAH CODE § 31A-22-309(1)(a) (emphasis added).
2
Cite as: 2020 UT 43
Opinion of the Court
the accident. Specifically, she argued that she should be
compensated for pain and suffering stemming from an injury to her
neck and a herniated disc in her back.
¶5 To support her claim for pain-and-suffering damages,
Ms. Pinney called several witnesses to testify on her behalf. Her
daughter and friend testified that her injuries limited her ability to
perform many tasks she had regularly performed before the
accident. For example, Ms. Pinney’s daughter testified that
Ms. Pinney could not ride certain amusement park rides and
struggled to pick up small children. And Ms. Pinney’s friend, with
whom Ms. Pinney had lived for sixteen months following the
accident, testified generally about the negative effect the injuries
had on Ms. Pinney’s life.
¶6 Additionally, Ms. Pinney called Dr. Dan George, her
chiropractor, to testify regarding the nature of her injuries.
Dr. George testified that the accident caused Ms. Pinney to sustain
a herniated disc in her back. And he specifically testified that the
herniated disc constituted “a permanent injury.” He also testified
that scar tissue in her neck, which stemmed from injuries sustained
in the accident, inhibited Ms. Pinney’s range of motion, and that
treatment failed to restore her range of motion back to “100
percent.” And he testified that “the scar tissue is permanent.”
Importantly, all of his conclusions were based on multiple x-rays
and an MRI of Ms. Pinney’s injuries, as well as on his medical
examinations of her during the course of her treatment. Based on
this evidence, Ms. Pinney requested the jury award her general
damages equal to $50 or $75 per day until she turned eighty. This
amounted to a request ranging from approximately $419,000 to
$630,000.
¶7 After considering the evidence presented by both parties,
the jury awarded Ms. Pinney $300,000 in general damages. In
response, Mr. Carrera filed a post-trial motion for judgment
notwithstanding the verdict. In his motion, he argued that
Ms. Pinney was barred from receiving general damages because
she failed to satisfy the requirement set forth in Utah Code section
31A-22-309(1)(a). This statute bars an award of general damages
where a plaintiff has not sustained one of five types of injury
identified in the statute.2 In this case, the only injury type at issue
__________________________________________________________
2 The Utah Legislature recently amended this statute to include
a sixth type of injury—“a bone fracture.” This change does not take
effect until January 1, 2021.
3
PINNEY v. CARRERA
Opinion of the Court
is a “permanent disability or permanent impairment based upon
objective findings.”3 Citing this statute, Mr. Carrera argued that
Ms. Pinney failed to demonstrate “objective findings” of a
permanent injury.
¶8 Mr. Carrera based his argument on statements Dr. George
had made during cross-examination. During cross-examination,
Dr. George stated that he had not issued Ms. Pinney a “permanent
impairment rating.” He explained that he no longer issued
impairment ratings to his patients because impairment ratings
“tend to hold more clout if another physician”—“one [who] hasn’t
worked with [the patient]”—“does them.”4 Because Dr. George
testified that he did not issue Ms. Pinney a permanent impairment
rating, Mr. Carrera argued that Ms. Pinney had failed to provide
“objective findings” of a permanent injury.
¶9 The district court denied this motion. It concluded that the
statute does not contain a “specific requirement that there be a
permanent disability rating or a permanent impairment rating.”
And it concluded that Dr. George’s testimony regarding the nature
of Ms. Pinney’s injuries was “sufficient to be an objective finding of
a permanent injury.” The court of appeals affirmed this ruling,
holding that the term “objective findings” requires only that a
plaintiff demonstrate a permanent disability or impairment
“through evidence other than the plaintiff’s own subjective
testimony.”5
¶10 Before the district court, Mr. Carrera also brought a motion
for a new trial under Rule 59 of the Utah Rules of Civil Procedure.
Specifically, he argued that the court should order a new trial on
the amount of damages because (1) the damage award was not
supported by the evidence on record and (2) the damage award
amount was so excessive that it appeared to have been given under
the influence of passion or prejudice.
¶11 The district court also denied this motion, explaining that
the “amount of the award was supported by the evidence
presented at trial in the form of Dr. George’s testimony, the MRI
__________________________________________________________
3 UTAH CODE § 31A-22-309(1)(a)(iii).
4 We note that on re-direct examination, Dr. George explained
that a “permanent impairment rating” is needed only where a
patient intends to apply for governmental benefits.
5 Pinney v. Carrera, 2019 UT App 12, ¶ 27, 438 P.3d 902.
4
Cite as: 2020 UT 43
Opinion of the Court
showing permanent injuries, and testimony related to
[Ms. Pinney’s] limitations, pain, and effect on her life.” And the
court explained that the award was not so excessive that it
appeared to have been given under the influence of passion or
prejudice, because of the ample evidence regarding Ms. Pinney’s
pain and suffering and because the jury “did not provide the full
amount” that Ms. Pinney had requested.
¶12 The court of appeals affirmed. It held that evidence on the
record “gave the jury a reasonable basis upon which to rely when
it awarded damages.”6 And in so doing, it noted the district court’s
finding that Ms. Pinney’s counsel requested a damage award much
greater than what the jury awarded.7
¶13 Mr. Carrera filed a petition for a writ of certiorari
regarding the court of appeals’ interpretation of the term “objective
findings” as it is used in Utah Code section 31A-22-309 and its
holding related to Mr. Carrera’s motion for a new trial. We granted
the petition on both issues. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(a).
Standards of Review
¶14 “On a writ of certiorari, we review the decision of the court
of appeals . . . and apply the same standard[s] of review used by
the court of appeals.”8 In conducting this review, we grant no
deference to the court of appeals’ decision.9 Mr. Carrera asks us to
review two aspects of the court of appeals’ decision. First he asks
us to review the court of appeals’ interpretation of a statute. “We
review questions of statutory interpretation for correctness.”10
Second, he asks us to review the court of appeals’ affirmance of the
district court’s denial of his motion for a new trial. We review a
district court’s denial of a motion for a new trial for an abuse of
discretion.11
__________________________________________________________
6 Id. ¶ 36.
7 Id. ¶ 35.
8 State v. Wilder, 2018 UT 17, ¶ 15, 420 P.3d 1064 (second
alteration in original).
9 Id.
10Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 12, 267
P.3d 863.
11 Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991).
5
PINNEY v. CARRERA
Opinion of the Court
Analysis
¶15 Mr. Carrera raises two issues regarding the court of
appeals’ decision. First, he argues that it erred in interpreting the
term “objective findings” as it appears in Utah Code section
31A-22-309(1)(a)(iii). The court of appeals interpreted “objective
findings” to mean findings that are “based on externally verifiable
phenomena, as opposed to an individual’s perceptions, feelings, or
intentions.”12 Mr. Carrera, on the other hand, argues that “objective
findings” means findings that are not tainted by an individual’s
bias. Although the term “objective” is commonly used in either
sense, we conclude that, in the context of section 31A-22-309(1)(a),
Mr. Carrera’s proposed interpretation is unworkable. So we affirm
the court of appeals on this point.
¶16 Second, Mr. Carrera argues that the court of appeals erred
in affirming the district court’s denial of his new trial motion. We
affirm the court of appeals on this point because, after considering
the evidence on record, we conclude the district court did not abuse
its discretion in denying Mr. Carrera’s motion.
I. The Court of Appeals Did Not Err in
Interpreting the Phrase “Objective Findings”
¶17 Under Utah law most motor vehicle owners “may not
maintain a cause of action for general damages” arising out of
injuries sustained in an automobile accident unless that person
“has sustained one or more of the following: (i) death;
(ii) dismemberment; (iii) permanent disability or permanent
impairment based upon objective findings; (iv) permanent
disfigurement; or (v) medical expenses to a person in excess of
$3,000.”13 Mr. Carrera argues that, under this statute, Ms. Pinney is
__________________________________________________________
12Pinney v. Carrera, 2019 UT App 12, ¶ 26, 438 P.3d 902 (quoting
Objective, BLACK’S LAW DICTIONARY (10th ed. 2014)).
13 UTAH CODE § 31A-22-309(1)(a) (emphasis added). The court
of appeals interpreted the phrase “may not maintain a cause of
action” as imposing on plaintiffs the burden of proving whether
one of the five threshold injuries identified in the statute exists.
Pinney v. Carrera, 2019 UT App 12, ¶ 16, 438 P.3d 902. We agree. As
it is used in the statute, the plain meaning of the phrase “may not
maintain” suggests that a plaintiff’s cause of action fails where the
plaintiff cannot prove that he or she sustained one of the five
identified injuries. See Maintain, MERRIAM-WEBSTER’S COLLEGIATE
(Continued)
6
Cite as: 2020 UT 43
Opinion of the Court
not entitled to general damages, because she has failed to prove
that she sustained any of the five injuries identified in the statute.
We disagree and, in so doing, affirm the decisions of the district
court and the court of appeals.
¶18 The district court and the court of appeals correctly
concluded that Ms. Pinney satisfied the statute’s requirements by
demonstrating, through “objective findings,” that she suffered a
permanent impairment. The district court determined that
Ms. Pinney satisfied the requirements of the statute because she
had provided “objective findings” of a permanent injury through
the testimony of her treating physician, Dr. George. The court of
appeals affirmed.
¶19 In reviewing the decision of the district court, the court of
appeals interpreted several terms contained in the statute. First, it
relied on one of our earlier cases to conclude that a disability or
impairment is “permanent” “whenever it is founded upon
conditions which render it reasonably certain that it will continue
throughout the life of the person suffering from it.”14 Then it
interpreted the term “disability” to mean “the inability to work”
__________________________________________________________
DICTIONARY (10th ed. 1998) (“[T]o sustain against opposition or
danger: uphold and defend [a position].”); Maintain, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“To continue (something). . . . To assert
(a position or opinion); to uphold (a position or opinion) in
argument.”). Accordingly, defendants in automobile accident cases
may challenge requests for general damages on this ground at any
appropriate stage of litigation. For example, where plaintiffs fail to
plead facts that, if proven, would satisfy this statute, defendants
may challenge the request for general damages by bringing a
motion to dismiss. And where the facts of the case are such that
there is “no genuine dispute” as to whether the statute is or is not
satisfied, either party may bring a motion for summary judgment
on the issue. See UTAH R. CIV. P. 56(a). But where a genuine factual
dispute remains regarding whether the plaintiff has satisfied the
requirements of this statute, the dispute must be decided by the fact
finder at trial.
14 Pinney, 2019 UT App 12, ¶ 24 (quoting Ralston v. Metropolitan.
Life Ins. Co., 62 P.2d 1119, 1123 (Utah 1936)).
7
PINNEY v. CARRERA
Opinion of the Court
and the term “impairment” to mean “the loss of bodily function.”15
Finally, the court interpreted the phrase “objective finding.”16
¶20 The court of appeals interpreted the phrase “objective
findings” in two steps. First, it cited Black’s Law Dictionary, which
defines “objective” as “[o]f, relating to, or based on externally
verifiable phenomena, as opposed to an individual’s perceptions,
feelings, or intentions.”17 And second, it cited one of its previous
cases, in which it held that a plaintiff had failed to provide
“objective findings” of a permanent injury where the plaintiff did
not support his claim “with something more than his say so.”18
After considering these sources, the court concluded that, to be
considered “objective,” “a finding need only be demonstrated
through evidence other than the plaintiff’s own subjective
testimony.”19
¶21 On certiorari, Mr. Carrera challenges only the court of
appeals’ definition of the phrase “objective findings.” He asserts
that, instead of the definition of “objective” relied on by the court
of appeals—“[o]f, relating to, or based on externally verifiable
phenomena, as opposed to an individual’s perceptions, feelings, or
intentions”—“objective” should be defined as “expressing or
dealing with facts or conditions as perceived without distortion by
personal feelings, prejudices, or interpretations.”20 In other words,
he argues that the term “objective” should be interpreted to require
unbiased findings of permanent disability or impairment.
¶22 When interpreting a statute, “our primary goal is to evince
the true intent and purpose of the [l]egislature.”21 “The best
evidence of the legislature’s intent is the plain language of the
__________________________________________________________
15 Id. ¶ 25.
16 Id. ¶¶ 26–27.
17 Id. ¶ 26 (internal quotation marks omitted).
18 Id. ¶ 26 (emphasis omitted) (quoting McNair v. Farris, 944 P.2d
392, 395 (Utah Ct. App. 1997)).
19 Id. ¶ 27.
20 Objective, THE MERRIAM-WEBSTER DICTIONARY ONLINE,
https://www.merriam-webster.com/dictionary/objective (last
visited June 22, 2020).
21Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267
P.3d 863 (internal quotation marks omitted).
8
Cite as: 2020 UT 43
Opinion of the Court
statute itself.”22 In considering the language of a statute, “we
assume, absent a contrary indication, that the legislature used each
term advisedly according to its ordinary and usually accepted
meaning.”23 And we “avoid interpretations that will render
portions of a statute superfluous or inoperative.”24 Because
Mr. Carrera’s interpretation of the statute would render the
“permanent disability or permanent impairment” subsection
inoperative, we reject it.
¶23 As we have explained, Mr. Carrera argues that the term
“objective” should be interpreted to require unbiased findings of a
permanent disability or impairment. And he argues that, because a
treating physician’s relationship with a plaintiff creates an
“inherent potential for bias,” the statute requires a plaintiff to show
the existence of a permanent disability or impairment “through an
independent” medical provider. But interpreting the term
“objective” in this way would render the statutory provision at
issue inoperative.
¶24 The statute imposes a burden on the plaintiff to prove that
one of the circumstances enumerated in the statute exists. 25 But,
under Mr. Carrera’s interpretation of “objective,” a plaintiff could
never prove the existence of a permanent disability or impairment.
¶25 For example, although Mr. Carrera suggests that his
reading of the statutory requirement could be satisfied by the
testimony of a non-treating physician, he fails to explain how a
non-treating physician retained and paid by the plaintiff would
satisfy his proposed “lack of bias” requirement. As Ms. Pinney
points out in her brief, “even a non-treating physician is subject to
bias, prejudice, and personal feelings, especially so when one of the
parties is paying financial compensation to the physician.” In other
words, if it is true that the “inherent potential for bias” stemming
from a treating physician’s relationship with a plaintiff would
disqualify the treating physician, then the financial relationship
between a plaintiff and the non-treating physician the plaintiff
retained for the purposes of litigation would also preclude the
__________________________________________________________
22 Id. (citation omitted) (internal quotation marks omitted).
23 Id.
24 Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 9, 173 P.3d
166 (internal quotation marks omitted).
25 See supra ¶ 17 n.13.
9
PINNEY v. CARRERA
Opinion of the Court
non-treating physician. So, in order to satisfy the requirements of
the statute, as Mr. Carrera interprets it, a plaintiff would need to
present a physician who would be willing to testify on the
plaintiff’s behalf without being compensated and without
otherwise being biased in the plaintiff’s favor. The practical result
of Mr. Carrera’s proposed interpretation would be to render the
statute’s requirements impossible to satisfy in the absence of a
court-appointed expert or a stipulation. Thus plaintiffs, on their
own, could never satisfy their burden of proof. Because this would
render the “permanent disability or permanent impairment”
subsection inoperative, we decline to read the term “objective
findings” to require findings made by a wholly independent and
unbiased witness.
¶26 Alternatively, Mr. Carrera argues that even were we to
decline to interpret the term “objective” as requiring testimony
from an unbiased, medical expert, we should nevertheless require
all medical experts to be “self-reportedly objective.” In other
words, he argues that even if the term “objective” does not require
findings wholly free from bias, we should nevertheless interpret
the statute as precluding a plaintiff from relying on any expert who
openly acknowledges the potential for bias. But we reject this
alternative interpretation because, having rejected Mr. Carrera’s
argument that the term “objective” should be defined as
“unbiased,” we see nothing in the plain language of the statute that
would invalidate the testimony of a physician who acknowledges
the potential for bias in his or her findings.
¶27 Accordingly, we affirm the definition of “objective
findings” adopted by the court of appeals. Under this definition, a
finding of a permanent disability or impairment must be based on
externally verifiable phenomena rather than on an individual’s
perceptions, feelings, or intentions.26 This means plaintiffs cannot
__________________________________________________________
26 We note that our interpretation of the term “objective
findings” is consistent with the meaning provided in other Utah
statutes. See, e.g, UTAH CODE § 58-40a-102(1) (referring to “objective
findings” in a context that strongly suggests the term “objective”
refers to “verifiable” findings rather than “unbiased” ones). It is
also consistent with the definition adopted for the term by other
states. See OKLA. STAT. tit. 85A, § 2(31)(a)(3)(a) (explaining that
“Objective findings” “may be established by medically recognized
and accepted clinical diagnostic methodologies”); OR. REV. STAT.
(Continued)
10
Cite as: 2020 UT 43
Opinion of the Court
satisfy the statutory requirement merely be testifying that they
believe they are permanently disabled or impaired. Instead,
plaintiffs must provide externally verifiable evidence of a
permanent disability or impairment. We conclude that the
evidence provided by Ms. Pinney satisfies this requirement.
¶28 Dr. George, Ms. Pinney’s chiropractor, testified that
Mr. Carrera’s crash into Ms. Pinney’s vehicle caused her to sustain
a permanent herniated disc in her back. And he specifically testified
that the herniated disc constituted “a permanent injury.” He also
testified that scar tissue, stemming from injuries sustained in the
crash, inhibited Ms. Pinney’s range of motion, and that treatment
failed to restore her range of motion back to “100 percent.” He
further testified that “the scar tissue is permanent.” And,
importantly, he explained that all of his conclusions were based on
multiple x-rays and an MRI of Ms. Pinney’s injuries, as well as on
his medical examinations of her during the course of her treatment.
This testimony constitutes externally verifiable evidence that
Ms. Pinney sustained a permanent disability or impairment. So the
statute does not preclude Ms. Pinney’s general damage award.
¶29 In sum, we interpret the phrase “objective findings” to
require findings regarding a permanent disability or impairment to
be based on externally verifiable phenomena rather than on an
individual’s subjective perceptions or feelings regarding the injury.
Because Dr. George’s testimony satisfies the “objective findings”
requirement in the statute, the statute does not preclude an award
of general damages in this case. Accordingly, we affirm the court
of appeals on this point.
__________________________________________________________
§ 656.005(19) (defining “Objective findings” as “verifiable
indications of injury or disease”); State v. Reynolds, 983 A.2d 874,
882–83 (Conn. App. Ct. 2009) (discussing a distinction “in medical
terminology, between objective findings, which are based on the
observations of a medical provider, and subjective findings, which
are based on the information provided to a medical provider by a
patient”); Felipe v. Dep’t of Labor & Indus., 381 P.3d 205, 208–09
(Wash. Ct. App. 2016) (“Objective findings of disability are those
that can be seen, felt, or measured by a physician. Subjective
findings are those based on the patient’s report to the physician
about symptoms perceived only by the senses and feelings of the
patient.” (footnotes omitted)).
11
PINNEY v. CARRERA
Opinion of the Court
II. The Court of Appeals Did Not Err in
Affirming Ms. Pinney’s Damage Award
¶30 We also affirm the court of appeals’ decision regarding
Mr. Carrera’s motion for a new trial. Mr. Carrera argues that the
court of appeals erred in affirming the district court’s denial of his
new trial motion because (1) the damage award was not supported
by the evidence on record and (2) the damage award amount was
so excessive that it appeared to have been given under the influence
of passion or prejudice. We disagree. The court of appeals correctly
concluded that the district court did not abuse its discretion on
either point.27
A. The damage award was supported by sufficient evidence
¶31 First, the court of appeals correctly concluded that the
damage award was supported by sufficient evidence. Under Rule
59(a)(6) of the Utah Rules of Civil Procedure, “a new trial may be
granted” where there is an “insufficiency of the evidence to justify
the verdict.” Mr. Carrera argues that there is insufficient evidence
to support the jury’s damage award. But juries are “generally
allowed wide discretion in the assessment of damages.”28 So, under
our abuse of discretion standard of review, we will reverse a jury’s
damage award “only if there is no reasonable basis for the
decision.”29
¶32 We conclude that there is a reasonable basis for the jury’s
damage award. The court of appeals determined that (1) testimony
regarding Ms. Pinney’s inability to do some of the things she used
to be able to do and (2) testimony regarding the permanent nature
of Ms. Pinney’s injury “gave the jury a reasonable basis upon which
to rely when it awarded damages.”30 On certiorari, Mr. Carrera
does not attempt to rebut this testimony or explain why it is
insufficient. Instead, he states only that the award was insufficient
“in light of the fact that [Ms. Pinney] did not present evidence of
special [(or specific)] damages at trial.” But the lack of evidence
regarding specific damages does not negate the evidence for
__________________________________________________________
27 See Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991)
(explaining that a district court’s denial of a motion for a new trial
is reviewed for an abuse of discretion).
28 USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 71, 372 P.3d 629.
29 Id. (internal quotation marks omitted).
30 Pinney v. Carrera, 2019 UT App 12, ¶ 36, 438 P.3d 902.
12
Cite as: 2020 UT 43
Opinion of the Court
general damages on the record. Because the evidence regarding
general damages provides a reasonable basis for the jury’s general
damage award, we affirm the court of appeals.
B. The damage award was not so excessive as to appear to
have been given under the influence of passion or prejudice
¶33 The court of appeals also correctly concluded that the
damage award was not improperly excessive. Under Rule 59(a)(5)
of the Utah Rules of Civil Procedure, “a new trial may be granted”
where there are “excessive or inadequate damages that appear to
have been given under the influence of passion or prejudice.”31 So
to succeed under rule 59(a)(5), a party must show, first, that a
damage award is excessive or inadequate and, second, that the
excessiveness or inadequacy of the award appears to have
stemmed from passion or prejudice. Because Mr. Carrera fails to
show that the damage award in this case was excessive, his rule
59(a)(5) argument fails.
¶34 Mr. Carrera argues that the amount of general damages
awarded in this case—$300,000—is improperly excessive when
viewed in proportion to the amount of specific damages
awarded—$0. But this argument fails because specific damages
and general damages are meant to measure different types of harm.
¶35 Specific damages measure harm that is “considered more
finite, measurable, and ‘economic’ because [it is] more easily
calculated” in specific dollar amounts.32 In other words, specific (or
“economic”) damages are “‘hard’ amounts [that are] subject to
careful calculation” such as the cost of “medical and other
necessary care” or a decrease in “earning ability.”33
¶36 In contrast, general damages, which are sometimes
referred to as “pain and suffering” or “noneconomic” damages,
measure the amount needed to compensate an individual for a
__________________________________________________________
31Utah R. Civ. P. 59(a)(5) (emphasis added); see also Wheat v.
Denver & R.G.W.R. Co., 250 P.2d 932, 935 (Utah 1952) (“[W]e must
determine whether the present verdict is so grossly excessive and
disproportionate to the injury that it can be said from such fact
alone, as a matter of law that the verdict must have been arrived at
because of passion and prejudice.” (internal quotation marks
omitted)).
32 Judd v. Drezga, 2004 UT 91, ¶ 4, 103 P.3d 135.
33 Id.
13
PINNEY v. CARRERA
Opinion of the Court
“diminished capacity for the enjoyment of life.”34 In other words,
general damages attempt to measure “the difference between what
life would have been like without the harm done . . . and what it is
like” as a result of the harm.35 So the type of harm for which general
damages are awarded is markedly different from the type of harm
underlying a specific damage award.
¶37 Because specific and general damages are aimed at
measuring different types of harm, the fact finder need not consider
the same factors in calculating an appropriate amount for each type
of award. For example, a typical jury instruction for general
damages instructs the fact finder to consider such factors as “the
nature and extent of injuries,” “the extent to which [the plaintiff]
has been prevented from pursuing [his or her] ordinary affairs,”
“the extent to which [the plaintiff] has been limited in [the]
enjoyment of life,” and “whether the consequences of these injuries
are likely to continue, and for how long.”36 Specific damages, on
the other hand, are calculated based on “the amount of money that
will fairly and adequately compensate” the plaintiff for measurable
losses of money or property caused by the defendant’s fault.37
Because the factors used to calculate general damage awards differ
from those used to calculate specific damage awards, there is no
reason why the amount of one type of damage award would need
to be proportional to the other.
¶38 So even though an award of general damages may be
improperly excessive where the amount awarded is grossly
disproportionate to the harm suffered (based on relevant
general-damage factors),38 we will not overturn a general damage
award on the ground that the plaintiff presented no evidence of
economic harm. Accordingly, Mr. Carrera’s proportionality
argument fails.
¶39 Mr. Carrera also argues that he’s entitled to a new trial on
damages because the general damage award was likely given
“under the influence of passion or prejudice.” But there is nothing
__________________________________________________________
34 Id.
35 Id.
36 See, e.g., Pinney, 2019 UT App 12, ¶ 8.
37 Brereton v. Dixon, 433 P.2d 3, 5 (Utah 1967).
38See Wheat, 250 P.2d at 935 (asking whether an award was
“disproportionate to the injury”).
14
Cite as: 2020 UT 43
Opinion of the Court
on the face of the award that would suggest that the jury acted
improperly in calculating damages.
¶40 As we have explained, general damages are meant to
measure “the difference between what life would have been like
without the harm done . . . and what it is like” as a result of the
harm.39 Ms. Pinney presented ample evidence that her injuries had
diminished her ability to do certain things and that her injuries
were permanent. Based on the pain and suffering stemming from
these injuries, she argued that she should be compensated in an
amount somewhere between $50 and $75 per day until she reached
the age of eighty. But instead of awarding Ms. Pinney the full
amount she requested—which would have amounted to between
$419,000 and $630,000—the jury awarded her $300,000 (or
approximately $35 per day). Based on the facts of this case, the
amount Ms. Pinney received is not “so grossly excessive and
disproportionate” to her injury that the district court clearly erred
in denying Mr. Carrera’s rule 59 motion.40
¶41 And this conclusion is not altered by any of the record
evidence to which Mr. Carrera points. Mr. Carrera argues that
Ms. Pinney “stoked the fire” of prejudice by making a number of
improper comments. But Mr. Carrera did not object to any of these
allegedly improper comments at trial, and we therefore do not
review them for error. Instead, we consider these comments only
to the extent they are relevant to our analysis under rule 59(a)(5).41
__________________________________________________________
39 Judd, 2004 UT 91, ¶ 4.
40 Wheat, 250 P.2d at 935. In denying Mr. Carrera’s request for a
new trial, the district court appeared to rely heavily on the fact that
the jury awarded Ms. Pinney less than she asked for. Although we
affirm the district court’s decision based on the facts of this case, we
note that the amount requested by the plaintiff does not provide a
reliable standard upon which to measure the reasonableness of a
jury award.
41 Under a rule 59(a)(5) analysis, a court may consider any
evidence presented to the jury, whether it could have been
excluded with a timely objection or not. But, as our resolution of
the issue in this case demonstrates, where the court determines that
the damage amount is reasonable, the analysis stops there. So, in a
rule 59(a)(5) analysis, it is only as the amount of the award reaches
unreasonable levels that a court would begin searching for
(Continued)
15
PINNEY v. CARRERA
Opinion of the Court
In other words, we consider these comments only in our attempt to
determine whether the damage award is so “excessive . . . that [it]
appear[s] to have been given under the influence of passion or
prejudice.”42 And under this standard, we do not find that the
allegedly improper comments warranted a new trial. Although
improper statements made to a jury could help explain how a jury
arrived at an extremely high damage award in some cases, we
conclude—based on the amount of the award and the evidence
supporting it—that the jury award does not appear to be the result
of passion or prejudice. So the district court did not abuse its
discretion in denying Mr. Carrera’s motion for a new trial.
¶42 In sum, Mr. Carrera fails to show that the damage award
was unsupported by the evidence or was improperly excessive.
Accordingly, we affirm the court of appeals.
Conclusion
¶43 Mr. Carrera argues that the court of appeals erred in
interpreting the term “objective findings” as it appears in Utah
Code section 31A-22-309(1)(a)(iii) and in affirming the district
court’s denial of his new trial motion. Because the court of appeals
correctly interpreted the statute to require only findings that are
“based on externally verifiable phenomena, as opposed to an
individual’s perceptions, feelings, or intentions,”43 and because the
evidence on record leads us to conclude that the district court did
not abuse its discretion in denying Mr. Carrera’s motion, we affirm
the court’s decision on both points.
__________________________________________________________
potentially prejudicial evidence that could help explain the award’s
unreasonableness.
42 UTAH R. CIV. P. 59(a)(5).
43Pinney v. Carrera, 2019 UT App 12, ¶ 26, 438 P.3d 902 (internal
quotation marks omitted).
16