Delva v. Value Rent-A-Car

• Decision Date: 05 February 1997
• Docket Number: RENT-A-CA,A,No. 95-1217,95-1217
• Citation: 693 So.2d 574
• Parties: 22 Fla. L. Weekly D358 Mario DELVA, Appellant, v. VALUEppellee.
• Court: Florida District Court of Appeals

Page 574

693 So.2d 574

22 Fla. L. Weekly D358

Mario DELVA, Appellant, v. VALUE RENT-A-CAR, Appellee.

No. 95-1217.

District Court of Appeal of Florida Third District.

Feb. 5, 1997.

Rehearing Denied June 9, 1997.

Simon & Nelson, Miami; Maland & Ross and Lauri Waldman Ross, Miami, for appellant.

Walton, Lantaff, Schroeder and Carson, Miami; Cooper & Wolfe and Marc Cooper and Maureen E. Lefebvre, Miami, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.

SCHWARTZ, Chief Judge.

Delva, then in his early twenties, was involved in an intersection accident in which he sustained permanent disabling injuries both to his back, including two spinal fractures, and his head, including optic nerve damage. In answer to special interrogatories, the jury found the driver of the defendant's car 100% liable for the accident. As to damages, it found that Delva had sustained permanent injuries and assessed $20,034 for past medicals, $1,000,000 for fifty years of future medicals reduced to a present value of $480,000, $20,000 in past non-economic losses but nothing for future ones. ¹ After the verdict, plaintiff's counsel pointed out the apparent inconsistency in the $1,000,000 and zero verdicts for future intangibles and requested that the case be resubmitted to the jury to reconcile them. The defense, however, specifically and successfully resisted this suggestion. Subsequently, the trial judge orally granted a defense motion for a "mistrial"

and set this case for new trial because I don't think this case was appropriately resolved ... [a]s to all issues.

Still later, he signed a written order granting a new trial on both liability and damages essentially on the grounds that the damage verdicts were inconsistent and, as to the future medical award, excessive. ² We reverse with directions to enter judgment on the jury verdict.

I.

We first find no basis for the trial judge's order that the new trial include the issue of liability. Even if, as we do not, we agreed that the jury's damage awards justified a re-trial on those questions, there was no error adverse to the defendant on the liability question and no indication that its resolution of that issue was in any way influenced by its decisions on damages. Hence, that portion of the order under review cannot be sustained. See Purvis v. Inter-County Tel. & Tel. Co., 173 So.2d 679 (Fla.1965); Griefer v. DiPietro, 625 So.2d 1226 (Fla. 4th DCA 1993), and cases cited; Royal Indemnity Co. v. Muscato, 305 So.2d 228, 229 (Fla. 4th DCA 1974), cert. denied, 321 So.2d 76 (Fla.1975); Larrabee v. Capeletti Bros., Inc., 158 So.2d 540 (Fla. 3d DCA 1963); see also D.R. Mead v. Cheshire, Inc., 489 So.2d 830 (Fla. 3d DCA 1986). The trial judge's reliance on Rivera v. Aldrich, 538 So.2d 1390 (Fla. 3d DCA 1989) was totally misplaced. That case involved an allegedly inadequate verdict in which, because it was possible that the jury had compromised on liability, a new trial on both liability and damages was required. This case, in which the jury specifically found 100% defense liability and the opposite of inadequacy is alleged, requires a different result.

II.

Turning to the real issues in the case, which arise from the damage verdicts, we likewise find the new trial order unjustified. This is because the bases of that ruling--that the $1,000,000 award for future expenses is inconsistent with the zero verdict for future intangibles and excessive for that element of damages when considered in isolation--are both legally flawed.

1. Inconsistency. Even assuming arguendo both that an award for future expenses is necessarily legally inconsistent with a zero verdict for future pain and suffering, but see Allstate Ins. Co. v. Manasse, 681 So.2d 779, 784 (Fla. 4th DCA 1996)(Klein, J., dissenting), and the even more dubious proposition that the defendant may be heard to complain about it, ³ compare Allstate Ins. Co. v. Manasse, 681 So.2d 779 (Fla. 4th DCA 1996) (plaintiff contending that zero verdict for future non-economic damages was inadequate and inconsistent with award for future medicals), there is no doubt that such an inconsistency may, and if possible, should be cured by permitting the jury to resolve it. See Cowart v. Kendall United Methodist Church, 476 So.2d 289 (Fla. 3d DCA 1985). In this case, the jury, after being told that the two verdicts could not stand together, could have transposed the awards, divided the $1,000,000 between the two elements, or even left the $1,000,000 where it stood and added an additional amount for future intangibles. By objecting to the plaintiff's specific request that the jury be allowed to obviate the inconsistency problem in any of these ways, the appellee effected a binding waiver of its right to a new trial on that ground. See Cushman & Wakefield, Inc. v. Comreal Miami, Inc., 683 So.2d 208 (Fla. 3d DCA 1996); see also Higbee v. Dorigo, 66 So.2d 684 (Fla.1953); Hendelman v. Lion Country Safari, Inc., 609 So.2d 766 (Fla. 4th DCA 1992)(Dell, J., concurring specially), review dismissed, 618 So.2d 209 (Fla.1993); Alamo Rent-A-Car, Inc. v. Clay, 586 So.2d 394 (Fla. 3d DCA 1991); Cowart, 476 So.2d at 289; Wiggs & Maale Constr. Co. v. Harris, 348 So.2d 914 (Fla. 1st DCA 1977); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973). In Savoca v. Sherry Frontenac Hotel Operating Co., 346 So.2d 1207 (Fla. 3d DCA 1977), we held that the plaintiffs' successful resistance to a request to resubmit the issue barred a subsequent contention that a zero verdict for the husband's derivative claim was "inconsistent" with a damage award for the injured wife. By the same token, this defendant's post trial challenge to the inconsistency of a plaintiff's verdict is likewise barred. Thus, this aspect of the general rule requiring the timely assertion below of correctable error, Cowart, 476 So.2d at 290, which is directly applicable both on appeal and with respect to a motion for new trial, see Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974); see generally Cushman & Wakefield, 683 So.2d at 208, requires reversal.

2. Excessiveness. The other, but closely interrelated, complaint about the $1,000,000 verdict for future expenses is that it was "excessive" as unjustified by the evidence as to that particular issue. For two reasons, we again disagree.

In the first place, any reconsideration by the jury of the case as a whole, could have--and therefore, it must be presumed, would have--resulted in a reduction or elimination of the future medical award to a point of inexcessiveness or nonexistence, respectively. Thus, the defendant's successful objection below waived this claim as well. On this point, we endorse Judge Dell's opinion in Hendelman, 609 So.2d at 767:

It follows that a party may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence. It also seems logical that in most cases an inconsistent verdict would be either inadequate or contrary to the manifest weight of the evidence.

Plainly, the inadequacy situation there is the same as the excessiveness issue involved here.

Moreover, the excessiveness contention incorrectly views the verdict on the future expenses issue alone and without reference to the entire case. Here, it is obvious that the jury wished to award the plaintiff, who is uncontrovertedly seriously and permanently injured, what amounted to some $20,000 for each of the fifty years in the future (which is half of what it assessed for the year in the past). If the jury had merely transposed the verdicts from future medicals to future non-economic losses, no one could rightly suggest that the result would have been challengeable in any way. See Pierard v. Aerospatiale Helicopter Corp., 689 So.2d 1099 (Fla.3d DCA 1997); Oakes v. Pittsburgh Corning Corp., 546 So.2d 427 (Fla. 3d DCA 1989). In these circumstances, even in the absence of a successful resubmission to the jury, the trial court was required to adjust the verdicts actually returned to reflect their lawful intention. See Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971); Baker Protective Servs. Inc. v. FP, Inc., 643 So.2d 1099 (Fla. 3d DCA 1994); Burgess v. Mid-Florida Serv., 609 So.2d 637 (Fla. 4th DCA 1992); Balsera v. A.B.D.M & P. Corp., 511 So.2d 679 (Fla. 3d DCA 1987), review denied, 519 So.2d 986 (Fla.1987); Phillips v. Ostrer, 481 So.2d 1241 (Fla. 3d DCA 1985), review denied, 492 So.2d 1334 (Fla.1986). The manner in which the jury itself allocated the awards to the various elements of damages made no legal difference to the bottom line--the clearly sustainable gross amount which the defendant must pay the plaintiff for the injuries it caused. In our view, therefore, this issue involves nothing more than harmless error.

Indeed, because any damages for future intangibles, unlike future economic losses, are not legally reducible to present money value, Braddock v. Seaboard Air Line R.R., 80 So.2d 662 (Fla.1955), the failure of the trial court to reassign the awards itself, or to give the jury the opportunity either to do so or to make an additional award for that element, harmed only the plaintiff. Since the defendant cannot complain of favorable error, 3 Fla.Jur.2d Appellate Review § 284 (1978), and, by expressly waiving in this court his claim to anything beyond the reduced amount of $480,000 actually returned for all future damages, see Cowart, 476 So.2d at 289, Delva does not do so, there is no reasoned basis to deny him that relief.

Accordingly, the order under review is reversed with directions to enter judgment for the plaintiff on the jury verdict of $520,034 nunc pro tunc the date of its return.

Reversed and remanded.

JORGENSON, J., concurs.

COPE, Judge. (concurring in part and dissenting in part).

I concur with regard to part I of the majority opinion and respectfully dissent with regard to part II. In my view, the record does not support the majority's conclusion that it was the defense which...