ITT Hartford Ins. Co. of the SE v. Owens

• Decision Date: 25 April 2002
• Docket Number: No. SC00-1508.,SC00-1508.
• Parties: ITT HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, Petitioner, v. Stiles Jerry OWENS and Jean A. Owens, his wife, Respondents.
• Court: Florida Supreme Court

816 So.2d 572

ITT HARTFORD INSURANCE COMPANY OF THE SOUTHEAST, Petitioner, v. Stiles Jerry OWENS and Jean A. Owens, his wife, Respondents.

No. SC00-1508.

Supreme Court of Florida.

April 25, 2002.

Richard A. Sherman, Fort Lauderdale, FL, for Petitioner.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for Respondents.

LEWIS, J.

We have for review ITT Hartford Insurance Co. of the Southeast v. Owens, 760 So.2d 210 (Fla. 3d DCA 2000), which is in apparent conflict with Jarvis v. Tenet Health Systems Hospital, Inc., 743 So.2d 1218 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

MATERIAL FACTS

On May 11, 1994, respondent Jerry Owens was involved in an automobile accident with an uninsured motorist in which his right hand and arm were injured. He filed an action against his insurance carriers seeking the recovery of past and future medical expenses and past and future pain and suffering. At trial, experts testified for both sides as to past and future damages, and regarding the discounted present value of recovery for future medical costs.¹ The jury then returned a verdict for the respondents.²

After the jury's verdict had been published by the court, the attorneys and judge had a sidebar discussion regarding the jury's present value calculations. The court opined that the final present value figure of $72,000 must have been a mistake, and that the jury must have intended to award $720,000. Counsel for the petitioner, however, asserted that the present value figure returned by the jury was a "fair present value." Trial counsel for the respondents specifically requested that the issue of present value be sent back to the jury. While the record is not clear that the respondents' request was formally denied, the court did not order the jury to reconsider its verdict.³ The jury was polled, and then discharged.

The respondents filed a motion for rehearing and for additur or in the alternative for a new trial, asserting that the jury misconceived the correct method of determining the present value of Mr. Owens' future medical expenses. The motion sought an order of additur from the court, or a new trial on the issue of the present value of the plaintiffs' future medical expenses only. The trial court entered an order on the plaintiffs' motion for additur or new trial, in which it held that the jury's calculation of present value was "not based on the law or the evidence in the case and most likely resulted from a misunderstanding of the concept of present money value." After conducting a hearing on the matter, in which the respondents agreed to use the petitioner's discount rate, the trial court entered a supplemental order granting additur in the sum of $819,214, plus interest from the date of the jury's verdict. The trial court subsequently denied the petitioner's motion for new trial under section 768.043, Florida Statutes (1997).

The petitioner appealed, and the Third District Court of Appeal affirmed. It agreed with the trial court that the respondents were entitled to an additur, and held that no new trial on the issue of damages was required. Owens, 760 So.2d at 212. The petitioner was not entitled to a new trial, the court held, because the respondents' acceptance of the petitioner's discount rate left no issue to be retried. Id. This timely petition for review followed.

ANALYSIS

In Poole v. Veterans Auto Sales & Leasing Co. Inc., 668 So.2d 189 (Fla.1996), this Court explained the appropriate standard of review where a trial court, after a party has rejected a remittitur, has granted a new trial on the issue of damages:

We have chosen not to answer the certified question⁴ because it appears to address an abstract scenario which may not relate to the instant case. However, we do not lightly dismiss the concerns which prompted the question. Section 768.74, Florida Statutes (1993), provides that the trial judge shall grant a remittitur or additur when the jury award is excessive or inadequate. The statute lists several criteria for the trial judge to consider when determining whether the verdict is excessive or inadequate. However, we do not believe that the statute alters the longstanding principles applicable to the granting of new trials on damages. In deciding whether or not to grant a new trial, the trial judge should not sit as a "seventh juror," thereby substituting his or her resolution of the factual issues for that of the jury. Laskey v. Smith, 239 So.2d 13 (Fla.1970). However, an appellate court should not reverse an order granting a new trial unless there was an abuse of discretion. Smith v. Brown, 525 So.2d 868 (Fla.1988). While these principles may seem difficult to harmonize, see Montgomery Ward & Co. v. Pope, 532 So.2d 722, 722-24 (Fla. 3d DCA 1988) (Schwartz, C.J., dissenting)

, they do address separate standards of review made by different actors within the judicial system.

668 So.2d at 191 (emphasis supplied). We have further indicated that the same standard of review applies to review of a trial court's order granting a new trial regardless of whether it is ordered because the verdict is contrary to the manifest weight of the evidence, or because the verdict is inadequate or excessive:

Regarding inadequate or excessive verdicts, this ground is a corollary of the ground asserting that the verdict is contrary to the manifest weight of the evidence. A new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice. The procedure under section 768.74, Florida Statutes (1997), for remittitur and additur apply only upon the proper motion of a party. Regardless of whether a new trial was ordered because the verdict was excessive or inadequate or was contrary to the manifest weight of the evidence, the appellate court must employ the reasonableness test to determine whether the trial judge abused his or her discretion.

Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). Applying the standard articulated in Poole, we conclude that, in light of the mandate contained in section 768.043, Florida Statutes (1977), the trial court abused its discretion in denying ITT Hartford the alternative of a new trial on the disputed element of damages issue under these circumstances. Accordingly, the district court similarly erred in affirming that decision.

Here, the Third District's determination that section 768.043 does not require a defendant to be given the option of a new trial when an additur is granted is contrary to the express language of the statute and analogous precedent concerning remittiturs.⁵Cf. Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998)

(observing that, while a party need not file a motion for new trial in seeking a remittitur or additur under section 768.74, Florida Statutes (1977), "[o]f 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," citing section 768.74(4)); Born v. Goldstein, 450 So.2d 262, 264 (Fla. 5th DCA 1984) ("In considering the propriety of remittitur here, we note that a trial court may not reduce a jury verdict by ordering a remittitur without permitting the plaintiff to have the option of a new trial."); Gould v. National Bank of Florida, 421 So.2d 798, 802 (Fla. 3d DCA 1982) ("It is also settled law that the function of a remittitur is to correct an improper verdict as to damages ... and where the error is only that the damages awarded are excessive it is not proper to retry the issue of liability: remittitur or new trial on damages is the remedy."); Lewis v. Evans, 406 So.2d 489, 491 (Fla. 2d DCA 1981) (reversing and remanding for a new trial where, in an action for slander, the trial court reduced the total judgment by 30% and denied the appellant's motion for a new trial, observing that the appellant "correctly contends that a remittitur is error unless it is accompanied by an alternative grant of a new trial"); Ellis v. Golconda Corp., 352 So.2d 1221, 1227 (Fla. 1st DCA 1977) ("A trial court is not permitted to reduce the verdict of a jury by ordering a remittitur without permitting the plaintiffs to have the option of a new trial."); Stuart v. Cather Industries, Inc., 327 So.2d 99, 100 (Fla. 4th DCA 1975) (vacating and setting aside order of remittitur which failed to afford the plaintiff the alternative of a new trial, and remanding to the trial court "with directions to allow the plaintiff to accept the provisions of that order, or in the alternative, be granted a new trial on the issues of damages"); Dura Corp. v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974) ("A trial judge is not permitted to reduce the verdict of a jury by ordering a remittitur, without permitting the plaintiff to have the option of a new trial."). This Court's decision in Adams v. Wright, 403 So.2d 391 (Fla.1981), is instructive on this issue. In Adams, this Court, in determining that section 768.043, Florida Statutes (1977), was constitutional, said:

We therefore hold that section 768.043, Florida Statutes (1977), is a remedial statute designed to protect the substantive rights of litigants in motor vehicle-related suits. We also hold, contrary to defendants' contention, that there is no conflict between the statute and Fla.R.Civ.P. 1.530. Rule 1.530 delineates the procedures for granting a new trial. Section 768.043 in no way alters or conflicts with Rule 1.530. The statute merely provides an alternative means of redress for an existing grievance of a litigant.

Defendants next contend that the statute substantially abridges the right to a jury trial. We disagree. The statute clearly provides for a new trial in the event the party adversely affected by the remittitur or additur does not agree with the remittitur or additur. In other

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