Aurbach v. Gallina, 97-1779.

• Decision Date: 12 November 1998
• Docket Number: No. 97-1779.,97-1779.
• Parties: Michael AURBACH and Marcia Elkington Aurbach, his wife, Appellants, v. Angelina GALLINA, Carolina Gallina, and Louis Gallina, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

721 So.2d 756

Michael AURBACH and Marcia Elkington Aurbach, his wife, Appellants, v. Angelina GALLINA, Carolina Gallina, and Louis Gallina, jointly and severally, Appellees.

No. 97-1779.

District Court of Appeal of Florida, Fourth District.

November 12, 1998.

R. Fred Lewis of Kuvin Lewis Restani & Stettin, P.A., Miami, and Dan W. Moses, Boca Raton, for appellants.

Angela C. Flowers and Caryn Bellus-Lewis of Kubicki Draper, Miami, for appellees.

GROSS, J.

Appellant Michael Aurbach was injured in an automobile accident by a car driven by Angelina Gallina. Along with his wife Marcia, Aurbach sued Angelina and her parents, Louis and Carolina Gallina. The Gallinas admitted Angelina's liability.

At trial, the jury awarded damages of $384,935.99, which included $80,010.99 for past medical expenses, $20,000 in future medical expenses, $34,925 in lost wages, $100,000 for past non-economic damages and $150,000 in future non-economic damages. The jury awarded no damages for Marcia Aurbach's loss of consortium. She filed a motion for additur on her consortium claim. The trial court's entry of final judgment after hearing all post-trial motions was tantamount to a denial of the motion for additur.

Section 768.74(1), Florida Statutes (1997), authorizes additur in cases where the trial court determines that an award of damages is "inadequate in light of the facts and circumstances which were presented to the trier of fact." Section 768.74 did not alter the "longstanding principles" governing a trial court's deference to a jury's assessment of damages. See Poole v. Veterans Auto Sales and Leasing Co. Inc., 668 So.2d 189, 191 (Fla.1996)

. Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court; a trial judge may not "sit as a `seventh juror,' thereby substituting his or her resolution of the factual issues for that of the jury." Id. at 191; Rowlands v. Signal Constr. Co., 549 So.2d 1380, 1382 (Fla.1989). A trial court's determination regarding additur may be reversed on appeal only where there is a clear abuse of discretion. See Doughty v. Insurance Co. of N. Am., 701 So.2d 1225, 1226 (Fla. 4th DCA 1997); Valinzo v. Cem-Kam, Inc., 698 So.2d 359, 360 (Fla. 4th DCA 1997); Airstar, Inc. v. Gubbins, 668 So.2d 311, 312 (Fla. 4th DCA 1996).

On a consortium claim, where sufficient undisputed evidence was presented that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law. See Waldron v. Dorsey, 585 So.2d 403, 404 (Fla. 1st DCA 1991)

; Christopher v. Bonifay, 577 So.2d 617 (Fla. 1st DCA 1991). An award that is inadequate as a matter of law may be ameliorated by additur under section 768.74. See Mason v. District Bd. of Trustees of Broward Community College, 644 So.2d 160 (Fla. 4th DCA 1994). In this case, there was undisputed evidence that supported a consortium award. After the accident, Michael Aurbach was confined in the hospital for 12 days, during which he underwent surgical procedures. Upon his release from the hospital, his injuries limited him to the first floor of his home and he required Marcia's assistance to perform personal hygiene functions, such as shaving and bathing. In addition to a cervical fracture, Michael Aurbach's foot and ankle could not bear weight for some months after the accident. Compare Christopher, 577 So.2d at 618 (at least nominal consortium damages required where husband lost wife's services during her one week hospitalization and convalescence relating to cervical diskectomy and fusion). Under these circumstances, the trial court abused its discretion in denying Marcia Aurbach's motion for additur. We remand with direction to grant the motion for additur and to determine an appropriate amount for her loss of consortium pursuant to section 768.74. See Doughty, 701 So.2d at 1227; Mason, 644 So.2d at 160.

We reject the Gallinas' argument that Marcia Aurbach waived her entitlement to additur because she did not file a motion for new trial. Typically, a motion for additur will be coupled with a motion for new trial. See Trawick, Fla.Prac. and Proc. § 26-1 (1993 ed.). However, the only pleading requirement in section 768.74 is that a "proper motion" be made for remittitur and additur. See Fitzmaurice v. Smith, 593 So.2d 1197, 1198 (Fla. 4th DCA 1992)

. The statute does not mandate the concomitant filing of a motion for new trial. Especially for a limited issue such as loss of consortium, a party may choose not to seek the expensive, extensive relief of a new trial, preferring instead to travel only under section 768.74 with a motion for remittitur or additur. Of course, if a motion is granted under the statute, the "party adversely affected" may elect not to agree with the ruling, so that a new trial on damages may be necessary. See § 768.74(4), Fla.Stat. (1997).

The second issue on this appeal concerns Louis Gallina's liability under the dangerous instrumentality doctrine. By a special interrogatory on the verdict form, the jury found that Louis Gallina owned or had the right to control the vehicle driven by his daughter, Angelina, at the time of the accident and that Angelina had her father's express or implied consent to drive it. After the trial, Louis Gallina moved for judgment in accordance with his motion for directed verdict. The trial court granted the motion.

The order granting Louis Gallina's post-trial motion is reviewed under the same standard that applies to review of an order granting a directed verdict at trial. See Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 171-72 (Fla. 4th DCA 1994)

. The motion admits the truth of all facts in evidence and every conclusion or inference that could be drawn by the jury favorable to the non-moving party. As this court observed in Warshall v. Price, 629 So.2d 903, 904 n. 2 (Fla. 4th DCA 1993):

A trial court may properly direct a verdict only when, viewing the evidence (and all reasonable inferences which could be drawn therefrom) in the light most favorable to the non-movant, there is no room for reasonable minds to differ and the movant is clearly entitled to judgment as a matter of law.

(Citation omitted) (emphasis supplied).

The evidence at trial was that the car involved in the accident was titled in the name of Louis Gallina's wife, Carolina. The car was purchased with Louis and Carolina's joint funds. Before buying the car, the Gallinas test drove it together. The car was purchased with the intent that the Gallinas' other daughter, Caroline, be the primary user, but that both of their daughters would be allowed to drive it. The expenses to maintain the car were paid out of the Gallinas' joint account. The Gallinas kept the automobile at the home where both of them resided.

The rationale for the dangerous instrumentality doctrine is

that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.

Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363, 1365 (Fla.1990). In applying the doctrine, ...