Reid v. Hindt

• Citation: 976 A.2d 125
• Decision Date: 09 July 2009
• Docket Number: No. 408, 2008.,408, 2008.
• Parties: Michele J. REID, Plaintiff Below, Appellant, v. Michelle A. HINDT and Daisy Construction Company, a Delaware Corporation, Defendants Below, Appellees. Daisy Construction Company, a Delaware Corporation, Defendant/Third-Party Plaintiff Below, Appellee/Cross-Appellant, v. Highway Traffic Controllers, Third-Party Defendant Below, Cross-Appellee.
• Court: United States State Supreme Court of Delaware

976 A.2d 125

Michele J. REID, Plaintiff Below, Appellant, v. Michelle A. HINDT and Daisy Construction Company, a Delaware Corporation, Defendants Below, Appellees.

Daisy Construction Company, a Delaware Corporation, Defendant/Third-Party Plaintiff Below, Appellee/Cross-Appellant, v. Highway Traffic Controllers, Third-Party Defendant Below, Cross-Appellee.

No. 408, 2008.

Supreme Court of Delaware.

Submitted: April 29, 2009.

Decided: July 9, 2009.

Revised: August 26, 2009.

Court Below: Superior Court of the State of Delaware in and for Kent County, C.A. No. 01C-10-046.

Upon appeal from the Superior Court. AFFIRMED.

William D. Fletcher, Jr., Esquire (argued), B. Brian Brittingham, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for Plaintiff Below, Appellant Michele J. Reid.

Jeffrey A. Young, Esquire, (argued) Young & McNelis, Dover, Delaware for Defendant Below, Appellee Michelle A. Hindt.

Sherry Ruggiero Fallon, Esquire, (argued) Tybout, Redfearn & Pell, Wilmington, Delaware for Defendant/Third Party Plaintiff Below, Appellee/Cross Appellant Daisy Construction Company.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

BERGER, Justice.

In this appeal we consider whether the trial court violated plaintiff's right to a jury trial by granting defendant's motion for additur after a jury award of zero damages in a personal injury action. Appellant, plaintiff below, had moved for a new trial, and opposed the additur motion. Nonetheless, the Superior Court awarded $2,500 in additur, and gave defendant the option of consenting to the award in lieu of a new trial. Although typically plaintiffs move for additur and defendants move for remittitur, either party may seek that relief, or the trial court may impose additur or remittitur sua sponte. The right to a jury trial only requires that defendant consent to additur and plaintiff consent to remittitur. The trial court satisfied that requirement and awarded plaintiff a reasonable amount, given the nature of the injuries sustained. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 5, 1999, Michele Reid was involved in a multiple car collision in the left lane of northbound U.S. Route 13. At the time of the accident, Daisy Construction Company ("Daisy") was working in that area, having contracted with the Delaware Department of Transportation ("DelDOT") to make improvements on the road. Because of the construction, the right lane of northbound Route 13 was blocked off by at least five cones. In addition, signs alerted drivers to slow down, and at least one flagger was guiding traffic approaching the lane closure. Daisy's contract with DelDOT required Daisy to provide cones and at least two flaggers to oversee safe movement of traffic. To meet this obligation, Daisy subcontracted with Highway Traffic Controllers ("Highway") to provide flaggers at the construction site.

The accident occurred shortly after William Maher came to a stop in the left lane at the construction site. Reid, who was in the car behind Maher, slammed on her brakes and managed to avoid hitting Maher. Michelle Hindt, who was traveling behind Reid, failed to stop and collided with Reid. The impact from Hindt's car propelled Reid's car into Maher's vehicle. The collision also caused Reid's car to spin around. As a result, Reid's car also was hit in the front by Hindt's car. After the accident, Reid was able to exit the vehicle herself, but she was taken to Kent General Hospital by ambulance. At the hospital, Reid complained of upper chest discomfort, neck, back, and hip pain. But, x-rays and electrocardiograms provided no evidence of injury.

Approximately two weeks after the accident, Dr. Richard DuShuttle examined Reid and found that she had muscle spasms in her trapezius. He determined that she was suffering from cervical strain, lumbar strain, and bilateral trapezius tenderness. DuShuttle prescribed physical therapy and medications. Later in November, during an evaluation at the physical therapist's office, there was another objective finding of muscle spasms. In December 2000, DuShuttle referred Reid to Dr. Sami Moufawad, who found that she suffered from muscle spasms and that she had pain and trigger points around her shoulder blades. Moufawad concluded that Reid suffered from myofascial pain syndrome in the shoulder and lumbo-sacral area, as well as mild lumbar spondylosis. It does not appear that any of these additional diagnoses result from objective findings of injury.

Reid filed suit against Hindt alleging that her negligence caused the automobile accident and proximately caused her injuries. Reid also sued Daisy, alleging that it failed to warn drivers of the hazardous condition on the road and that it should have had more cones and at least two flaggers on location, as required by its contract with the DelDOT. Reid claims these failures also were a proximate cause of the accident. Daisy, in turn, filed a third-party complaint against Highway.

Before the first trial, the Superior Court granted summary judgment in favor of both Daisy and Highway. The trial court concluded that "[e]ven if there were less than two flaggers on the site and even if the line of cones was unusually short, a jury could not, on the record of this case, conclude by a preponderance of the evidence that these factors, or any other acts or omissions by Daisy, were a proximate cause of the accident."¹ In September 2005, Reid proceeded to trial on her remaining claims. Hindt admitted liability, so the only issue for the jury was damages. DuShuttle testified that Reid suffered from muscle spasms in the trapezius, as well as cervical strain, muscle and ligament injuries. DuShuttle concluded that the automobile accident on November 5, 1999, caused her injuries.

Hindt did not offer any medical evidence to controvert DuShuttle's medical opinion. Instead, Hindt challenged Reid's credibility and the extent of her injuries. Reid admitted that she had been in two other automobile accidents after the accident with Hindt, but claimed that she sustained no injuries from those other accidents. DuShuttle also cast doubt on Reid's claim. He testified that, within a few months after the accident, Reid was "right where she should be," and that, when she contacted his office in February 2000, Reid told him that she had fallen and reinjured her back.²

The trial court instructed the jury to determine the amount of compensation for Reid's injuries proximately caused by the automobile accident. Despite the uncontradicted medical evidence that Reid suffered some injury, the jury awarded zero dollars. The Superior Court granted Reid's motion for a new trial, and denied Hindt's request that the court award additur. At the second trial, neither party presented any new evidence, and the jury again returned a zero verdict.

Reid and Hindt repeated their applications for a new trial and additur, respectively. This time the trial court concluded that additur was the appropriate remedy, and found that $2,500 was the "absolute minimum amount that the record requires."³ The trial court held that Reid would receive a new trial unless Hindt agreed to pay the additur. After Hindt agreed to the additur, Reid moved for reargument, claiming that the trial court had deprived her of her right to a jury trial. The trial court denied the motion for reargument and this appeal followed.

DISCUSSION

Reid argues that she was denied her right to trial by jury when the trial court granted Hindt's motion for additur over her objection. She contends that the trial court impermissibly invaded the fact-finding province of the jury, thereby violating Article IV, Section 19 of the Delaware Constitution. According to Reid, when a plaintiff moves for a new trial or additur, the plaintiff implicitly waives her right to trial by jury and agrees to allow the trial judge to determine the amount of additional damages the defendant must pay. If the defendant does not consent to the additur, the plaintiff is entitled to a new trial. Where, as here, the defendant moves for additur, the plaintiff has not waived her right to a jury trial. Therefore, according to Reid, the plaintiff must be given the option to accept the additur or have a new trial. We review this claimed constitutional violation de novo.⁴

Delaware, like other jurisdictions, has a long history of using additur⁵ and remittitur⁶ to adjust jury verdicts. In Rudnick v. Jacobs⁷, this Court held that it did not violate a plaintiff's right to trial by jury when a trial court sua sponte gave the defendant the option to accept additur for medical bills. Rudnick had been injured in a car accident, and sought compensation for damage to his car, medical bills, and pain and suffering. The jury fully compensated Rudnick for the damage to his car, awarded all but $16 for medical expenses, and awarded nothing for personal injuries. The trial court denied Rudnick's motion for a new trial. Instead, with defendant's consent, the trial court awarded $16 in additur.

On appeal, this Court upheld the zero verdict for personal injuries, noting that all the evidence on that claim was subjective. With regard to the medical bills, the Rudnick Court determined it was proper for the trial judge to add $16 to the jury verdict because it was merely adding "a definite, calculable item [that] was erroneously omitted."⁸ The Rudnick Court rested its decision on the fact that the additur involved only liquidated amounts:

[T]he verdict in effect reduced the plaintiff's claim to one for the recovery of definite, pecuniary sums which are demonstrably calculable to a penny. In such a case, there can be no possible injury to the plaintiff if the court should direct an additur sufficient to cover the utmost of his claims. The jury could not properly have allowed him more. As the defendant has consented to the increase, he of course cannot be heard to object....