Matthess v. State Farm Mut. Auto. Ins. Co., 93-217

• Decision Date: 21 September 1994
• Docket Number: No. 93-217,93-217
• Citation: 521 N.W.2d 699
• Parties: Lloyd G. MATTHESS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Colonial Insurance Company of California, Appellees, and Heritage Mutual Insurance Company, Appellee.
• Court: Iowa Supreme Court

Page 699

521 N.W.2d 699

Lloyd G. MATTHESS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and Colonial Insurance Company of California, Appellees and Heritage Mutual Insurance Company, Appellee.

No. 93-217.

Supreme Court of Iowa.

Sept. 21, 1994.

Stephen J. Powell and Mark F. Conway of Swisher & Cohrt, Waterloo, for appellee Heritage Mut. Ins. Co.

Richard S. Fry of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellee Colonial Ins. Co.

Robert R. Rush of Lynch, Dallas, Smith & Harmon, Cedar Rapids, for appellee State Farm Mut. Auto. Ins. Co.

Hugh G. Albrecht of the Tom Riley Law Firm, Cedar Rapids, for appellant.

Considered by HARRIS, P.J., and LARSON, LAVORATO, SNELL, and TERNUS, JJ.

LAVORATO, Justice.

In this personal injury case, the plaintiff appeals from a district court order denying his motion for new trial following a jury trial. In his motion, the plaintiff challenged the verdict as inadequate. The court of appeals agreed, reversed the district court order, and remanded for a new trial on damages. We vacate the decision of the court of appeals and affirm the district court's order denying the motion for new trial.

Lloyd G. Matthess was a car salesperson working on commission for Bruce McGrath Pontiac, Inc. in Cedar Rapids. In June 1990 he was a passenger in a car a customer was test driving when it was struck broadside by a second vehicle at a Cedar Rapids intersection.

The force of the impact caused Matthess' car to flip over and skid into a concrete abutment at the edge of the intersection. Matthess' head and upper torso were pushed out of the driver's side rear window. His injuries included severe lacerations of the scalp and right ear. An attending physician closed these deep wounds and inserted a drain to alleviate fluid retention in the wound areas.

Matthess also sustained (1) fractures of several ribs, (2) wrist lacerations, and (3) a pulmonary contusion with a hemothorax (blood in the pleural cavity surrounding the lung) for which a drain was later inserted into Matthess' chest. He also had a clavicular fracture that was corrected by putting Matthess in a brace and a sling. He remained hospitalized for six days and convalesced at home until August.

In August Matthess returned to a restricted work schedule at Bruce McGrath. He testified his physical condition did not improve and he was plagued by constant, pounding headaches that would radiate to his neck, shoulders, and back.

On August 29--on the advice of counsel--Matthess saw Dr. Marc Hines, a neurologist. In his deposition, Hines testified that Matthess suffered from (1) possible orbital frontal cortex injury, (2) significant chronic pain with posttraumatic headache, (3) posttraumatic trigger point dysfunction, (4) myofacial pain secondary to neck, shoulder, and low back injury, and (5) secondary depression. Hines prescribed physical therapy, anti-inflammatory and pain medications, antidepressants, and additional testing. An electroencephalogram showed abnormal slowing in the temporal areas of Matthess' brain.

Hines further reduced Matthess' work schedule at Bruce McGrath to two hours a day, three days a week. Because Matthess could not sustain this schedule, Hines removed Matthess from work altogether in late September.

On Hines' recommendation, Matthess saw Dr. Darlene Ehlers, a chiropractor, in late October. In her deposition, Ehlers testified that Matthess suffered from (1) acute hyperextension/hyperflexion injury with swelling in the cervical and thoracic spine, (2) headaches, (3) myofibrositis of the cervical and thoracic spine, (4) myofascitis of the cervical and thoracic spine, (5) segmental dysfunction in the cervical and thoracic vertebra, and (6) chronic pain.

Neurologist Dr. Richard F. Nieman examined Matthess in February 1991. He did so on behalf of the defense. According to Nieman's deposition testimony, Matthess suffered from a soft tissue injury of the cervical spine. He recommended a physical therapy program concentrating on soft tissue rehabilitation. Nieman saw Matthess again in April when he learned that Matthess had not started physical therapy. Nieman again suggested physical therapy to Matthess as the most appropriate way to improve his condition.

Nieman ultimately rated Matthess' range of motion impairment at four to sixteen percent. He believed that Matthess could reduce this rating with physical therapy. He also suggested that Matthess quit taking the various narcotic medications prescribed by Hines. Matthess did not follow either suggestion.

Matthess underwent a course of treatment with Ehlers and continued treatment with Hines. Hines told Matthess to return to work in March 1991. Bruce McGrath terminated his employment in June. Since then, Matthess has worked in his stepfather's diesel repair business. Matthess testified that he works forty to fifty hours per week without pay.

Without Matthess' knowledge, one of the defendants had Matthess under surveillance in August 1992. For about five days, a private investigator videotaped Matthess' activities at his stepfather's shop. The jury saw a redacted version of the tape, in which Matthess is seen doing heavy lifting and operating other equipment.

Matthess never looked for--nor returned to--a salaried job. He testified that he can do "almost everything [he] did before the accident." He also testified that he continues to experience painful headaches, neck, and back pain although his headaches "definitely are getting better" and his neck and back pain have "improved significantly."

In June 1991 Matthess sued the three insurance companies that had issued automobile liability policies on the individuals and vehicles in the accident. Heritage Mutual Insurance Company (Heritage) had insured the car owned by Bruce McGrath. The driver of that car was insured by Colonial Insurance Company of California (Colonial). State Farm Automobile Insurance Company (State Farm) insured Matthess. Matthess sought damages from each insurer under their respective underinsured coverage provisions.

The district court sustained State Farm's and Colonial's motions for severance. Trial proceeded against Heritage alone on the stipulation that State Farm and Colonial would be bound by the verdict.

Before trial, Matthess settled with the driver that struck his car for $20,000, the policy limits. The jury's $50,085 verdict was broken down as follows on the special verdict form:

                1.  Past medical expenses            $20,085.00
                2.  Future medical expenses          $ 4,500.00
                3.  Past lost wages                  $14,000.00
                4.  Loss of future earning capacity  $ 4,500.00
                5.  Past loss of body function       $ 2,500.00
                6.  Future loss of body function     $ 1,000.00
                7.  Past pain and suffering          $ 2,500.00
                8.  Future pain and suffering        $ 1,000.00
                                                     ----------
                                                     $50,085.00
                

Matthess moved for a new trial. He alleged that the verdict was (1) inadequate as a matter of law, (2) not supported by substantial evidence, and (3) inadequate to achieve substantial justice between the parties. The district court denied the motion.

Matthess appealed from the district court's order denying his motion for a new trial. We transferred the case to the court of appeals. In a 3-2 decision the court of appeals reversed and remanded the case for a new trial on damages. We granted Heritage's application for further review.

We recognize that an inadequate damages award merits a new trial as much as an excessive one. Iowa R.Civ.P. 244; Witte v. Vogt, 443 N.W.2d 715, 716 (Iowa 1989). Our review on this question is for abuse of discretion. Vogt, 443 N.W.2d at 716. Whether damages in a given case are adequate depends on the particular facts of the case. Id. The test is whether the verdict fairly and reasonably compensates the injury the party sustained. Householder v. Town of Clayton, 221 N.W.2d 488, 493 (Iowa 1974).

Recently, we reviewed extensively our cases involving questions of inadequate awards where the awards were approximately equal to or less than the special damages. See Cowan v. Flannery, 461 N.W.2d 155, 158-59 (Iowa 1990). We discovered we had not adopted an inflexible rule that every verdict awarding only special damages is inadequate as a matter of law. Our survey of the cases showed that

[w]e have affirmed the court's granting of a new trial where the evidence material to the damage award is undisputed and the damage award was approximately equal [to] or less than the special damages.

We have reversed the court's denial of a new trial where evidence material to the damage award is undisputed and the award was nearly equal [to] or less than the special damages.

We have affirmed the trial court's denial of a new trial where the evidence of the cause or the extent of injury was disputed.

We have also reversed the granting of a new trial based on inadequate damages where the evidence as to the nature, extent and severity of the injuries was disputed.

Id. at...