Palmer v. Jensen

• Citation: 937 P.2d 597,132 Wn.2d 193
• Decision Date: 29 May 1997
• Docket Number: No. 64058-1,64058-1
• Court: Washington Supreme Court
• Parties: Pamela S. PALMER and Delbart Palmer, wife and husband; and Pamela S. Palmer, as Guardian ad Litem for Shawn Matthew Palmer, a minor, Petitioners, v. Thomas JENSEN and Jane Doe Jensen, husband and wife; and Titus-Will Ford Sales, Inc., a Washington corporation, Respondents.

Page 193

132 Wn.2d 193

937 P.2d 597

Pamela S. PALMER and Delbart Palmer, wife and husband; and

Pamela S. Palmer, as Guardian ad Litem for Shawn

Matthew Palmer, a minor, Petitioners, v. Thomas JENSEN and Jane Doe Jensen, husband and wife; and Titus-Will Ford Sales, Inc., a Washington

corporation, Respondents.

No. 64058-1.

Supreme Court of Washington,

En Banc.

Argued March 25, 1997.

Decided May 29, 1997.

Albertson Law Offices, Dan M. Albertson, Tacoma, for Petitioners.

John Q. Powers, Seattle, Lee, Smart, Cook, Martin & Patterson, Molly E. Farr, Seattle, for Respondents.

Reed McClure, Michael S. Rogers, Seattle, amicus curiae on Behalf of Washington Defense Trial Lawyers.

Harbaugh & Bloom, Gary N. Bloom, Bryan P. Harnetiaux, Debra Stephens, Spokane, amicus curiae on Behalf of Washington State Trial Lawyers Ass'n.

DOLLIVER, Justice.

In this personal injury action, Pamela Palmer asks us to reverse the trial court's denial of her motion for a new trial. Palmer argues the jury's verdict in an amount exactly equal to special damages is inadequate as a matter of law because the award necessarily failed to include damages for pain and suffering.

On January 30, 1990, Palmer was driving her Volkswagen Rabbit in Tacoma when the car was rear-ended by a Ford Aerostar mini-van driven by Thomas Jensen. Palmer's son Shawn, then aged three and one-half, was riding in the backseat restrained in his car seat. Palmer filed this action for personal injuries alleging general and special damages. A jury found Jensen to be negligent, but concluded Palmer was 25 percent contributorily negligent. The jury awarded Palmer and her son damages in amounts exactly equal to their special damages--$8,414.89 and $34.00 respectively. The awards were then reduced to account for Palmer's contributory negligence.

Palmer took Shawn to the doctor on the day of the accident. Shawn's pediatrician diagnosed "Seat Belt Contusion" and did not prescribe further medical care. Ex. 8.

Palmer was examined by Dr. Lowell Finkleman the day after the accident. Dr. Finkleman diagnosed "ACUTE CERVICAL LUMBAR STRAIN OF MILD DEGREE" and prescribed physical therapy, pain medication, x-rays, and follow-up care. Clerk's Papers at 143. Palmer saw Dr. Finkleman and a physical therapist regularly until she and her family moved to Boise, Idaho, over a year later. She was treated by a doctor and physical therapist in Boise, each of whom believed her continued lower back problems were a likely result of the accident.

The total cost of Palmer's medical treatment was $8,414.89--the exact amount of the jury's verdict. Dr. Finkleman testified at trial that all of the special damages claimed by Palmer were reasonable and necessary. Both Dr. Finkleman and Palmer's physical therapist, Roger Russell, told the jury Palmer was experiencing pain from the accident while they were treating her. Medical records from Palmer's doctor and physical therapist in Boise state she continued to experience pain in her lower back over two years after the accident.

The defendant presented no evidence to refute these medical opinions. Instead, counsel for the defendant contended in closing argument that the evidence presented by the plaintiffs failed to prove Palmer was injured and, alternatively, that only a portion of the two and one-half year treatment was justified. The defense called only one witness--the defendant Thomas Jensen. The defense retained an expert, Dr. Daniel Brzusek, but did not call Dr. Brzusek to testify because his testimony was not helpful to the defendant's case. The plaintiffs had wanted to call Dr. Brzusek to testify, but the court granted a defense motion to prohibit reference to the doctor.

After the jury returned its verdict, Palmer moved for a new trial, arguing the verdict was insufficient because it failed to include general damages. The trial court denied the motion and Palmer appealed. The Court of Appeals affirmed the trial court, reasoning it is not an abuse of discretion for a trial judge to deny a new trial on the basis that the jury awarded only special damages. Palmer v. Jensen, 81 Wash.App. 148, 151-52, 913 P.2d 413 (1996).

I

After the jury returned its verdict, Palmer moved for an additur or alternatively a new trial pursuant to CR 59(a)(5), (7), (8), and (9). CR 59 allows the trial court to grant a new trial for the following causes:

(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;

....

(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;

(8) Error in law occurring at the trial ...;

(9) That substantial justice has not been done.

Only CR 59(a)(5) and (7) are at issue here.

Determination of the amount of damages is within the province of the jury, and courts are reluctant to interfere with a jury's damage award when fairly made. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 329, 858 P.2d 1054 (1993). Denial of a new trial on grounds of inadequate damages will be reversed only where the trial court abuses its discretion. Wooldridge v. Woolett, 96 Wash.2d 659, 668, 638 P.2d 566 (1981). A much stronger showing of abuse of discretion will be required to set aside an order granting a new trial than an order denying one because the denial of a new trial "concludes [the parties'] rights." Baxter v. Greyhound Corp., 65 Wash.2d 421, 437, 397 P.2d 857 (1964).

Where the proponent of a new trial argues the verdict was not based upon the evidence, appellate courts will look to the record to determine whether there was sufficient evidence to support the verdict. McUne v. Fuqua 45 Wash.2d 650, 652, 277 P.2d 324 (1954); Ide v. Stoltenow, 47 Wash.2d 847, 848, 289 P.2d 1007 (1955); Philip A. Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash. L.Rev. 787, 811 (1967). Where sufficient evidence exists to support the verdict, it is an abuse of discretion to grant a new trial. McUne, 45 Wash.2d at 653, 277 P.2d 324; Ide, 47 Wash.2d at 848, 289 P.2d 1007; Trautman, supra at 811.

Conversely, it is an abuse of discretion to deny a motion for a new trial where the verdict is contrary to the evidence. Krivanek v. Fibreboard Corp., 72 Wash.App. 632, 637, 865 P.2d 527 (1993) (trial court abused its discretion when it denied a new trial on the basis of inadequate damages in wrongful death case because damages were not within the range of substantial evidence); see also Lanegan v. Crauford, 49 Wash.2d 562, 568, 304 P.2d 953 (1956) (new trial ordered on the issue of damages where it "seem[ed] reasonably clear ... that only $381" was awarded for general damages because there was "no serious controversy respecting special damage[s]").

The Court of Appeals limited its analysis to whether the verdict was so inadequate as to indicate passion or prejudice under CR 59(a)(5) and neglected to analyze whether there was evidence to support the verdict under CR 59(a)(7). The court neither discussed CR 59(a)(7) nor referred to the evidence adduced at trial. The court accordingly failed to undertake an independent review of the record to determine whether the verdict was contrary to the evidence.

II

Palmer's claim that the trial court erred in failing to grant a new trial is premised entirely upon her assertion that the jury failed to award general damages. The jury awarded damages exactly equal to the special damages claimed at trial. The Court of Appeals stated, "[a]lthough there is no way this court could know with absolute certainty whether the jury failed to award general damages such a result can be reasonably inferred from the general verdict when the jury's award is exactly the same as the plaintiff's uncontroverted evidence." Palmer, 81 Wash.App. at 152, 913 P.2d 413. Curiously, the court later stated the award may nonetheless have included general damages because the jury could have inferred that some of Palmer's medical expenses were unnecessary. Palmer, 81 Wash.App. at 153, 913 P.2d 413.

The defendant contends Palmer has failed to show "unerringly from the record" that the verdict of the jury represented special damages only (quoting and citing Cox v. Charles Wright Academy, Inc., 70 Wash.2d 173, 177, 422 P.2d 515 (1967)). In Cox, we held the trial court erred in granting an additur after finding the jury had failed to award general damages for pain and suffering for injuries the plaintiff allegedly received in a car accident. Cox, 70 Wash.2d at 174, 422 P.2d 515.

Unlike this case, there was substantial evidence in Cox that the plaintiff's injuries were not attributable to the accident. Cox, 70 Wash.2d at 177-78, 422 P.2d 515. The plaintiff had been in four car accidents in four years, which "tend[ed] to obscure or cloud all the evidence of damages." Cox, 70 Wash.2d at 178, 422 P.2d 515. We observed an additur or new trial may lie where the record shows "categorically" that special damages alone were awarded. Cox, 70 Wash.2d at 177, 422 P.2d 515 (citing Shaw v. Browning, 59 Wash.2d 133, 367 P.2d 17 (1961)).

Here, the Court of Appeals acknowledged that uncontroverted evidence at trial established that all of Palmer's medical treatment was related to the accident, was necessary, and was reasonable. Palmer, 81 Wash.App. at 150, 913 P.2d 413. The defendant argues Palmer's special damages were still a matter of legitimate dispute because the jury could have concluded some of Palmer's treatment was unnecessary. However, the defense presented no evidence to call the treatment into question. Lacking evidence, counsel for the defense could only urge the jury during closing argument to conclude Palmer had failed to prove her treatment was necessary.

Ide v. Stoltenow, 47 Wash.2d 847, 289 P.2d 1007 (1955) is directly on point. In Ide, we held the trial court was justified in granting a new trial where the jury's verdict was $120 more than the...