REPUBLIC SERVICES OF FLORIDA v. Poucher

• Decision Date: 12 August 2003
• Docket Number: No. 1D02-2657.,1D02-2657.
• Citation: 851 So.2d 866
• Parties: REPUBLIC SERVICES OF FLORIDA, L.P., f/k/a Southland Waste Systems of Jax., Inc., Appellant, v. Judith POUCHER, Appellee.
• Court: Florida District Court of Appeals

851 So.2d 866

REPUBLIC SERVICES OF FLORIDA, L.P., f/k/a Southland Waste Systems of Jax., Inc., Appellant, v. Judith POUCHER, Appellee.

No. 1D02-2657.

District Court of Appeal of Florida, First District.

August 12, 2003.

Richard A. Sherman, of Richard A. Sherman, P.A., Ft. Lauderdale; and Dale Hightower, of Hightower & Weiser, P.A., Miami, for Appellant.

Hugh Cotney, of Hugh Cotney, P.A.; and C. Holt Smith, Jacksonville, for Appellee.

BROWNING, J.

Republic Services of South Florida, L.P. (Republic Services), the defendant in the lower tribunal,¹ appeals an order granting in part a motion for additur filed by the appellee/plaintiff, Judith Poucher. Republic Services contends that the trial court erred as a matter of law in finding the jury's verdict inconsistent; and in granting the motion for additur in the amount of $20,000.00 for future medical expenses and in the amount of $963.97 for past medical expenses. Concluding that the granting of the motion for additur constitutes a clear abuse of discretion, we reverse the order and remand with instructions to the trial court to reinstate the jury's verdict.

Poucher filed a negligence action against Republic Services alleging that she had suffered serious, permanent personal injuries on August 3, 1999, when an employee of Republic Services (then known as Southland Waste Systems of Jax., Inc.), without a warning, tossed aside (at shoulder height) an empty recycling bin, which struck Poucher on the right chin and jaw as she proceeded around the driver's side of the stationary recycling truck during a neighborhood walk. Poucher claimed that the blow had stunned her and caused tremendous pain on the right side of her face and a buzzing sound in her left ear. It is undisputed that Republic Services had a safety rule prohibiting throwing or tossing recycling bins into yards, and the defense conceded some degree of negligence. However, Republic Services denied that the recycling bin incident caused Poucher's injuries. The driver of the recycling truck, Robert Hutchinson, testified that after Poucher was struck by the bin, he inquired about her condition, and Poucher said she was fine and indicated the driver did not need to call his supervisor.

Years before the recycling bin incident, Poucher was diagnosed as having an injury to her temporomandibular joint (TMJ). At the trial, Poucher's attorney argued that the recycling bin incident had caused a permanent injury that aggravated Poucher's TMJ condition, narrowed her mouth opening, required her to use a Therabite device (to stretch the mouth), and resulted in constant pain comparable to a toothache. On May 30, 2001, i.e., after the recycling bin incident but before the trial, Poucher felt sick, fainted in the bathroom, and landed on her face while not wearing her bite guard, bruising her jaw and sustaining bite marks on her lips and inside her mouth. The defense contended that any worsening of Poucher's condition after the recycling bin incident is entirely or primarily the result of her progressively worsening, pre-existing TMJ condition or her fall.

Poucher was in her early 50s at the time of the trial. She has a Ph.D. and taught freshman English at the community college. She claimed $1,927.97 in past medical expenses. Given the mortality tables suggesting her life expectancy was 27 more years, she sought an award of $15,000.00-$40,000.00 for future medical expenses. Her counsel asserted Poucher's claim of $10,000.00-$20,000.00 for past pain and suffering and at least $100,000.00 for future pain and suffering.

The jury returned a verdict finding that Republic Services' negligence was the legal cause of Poucher's damages and that Poucher was not comparatively negligent. For past medical expenses, the jury awarded $964.00, or one-half the amount claimed. The jury awarded zero for future medical expenses. The jury awarded $1.000.00 and $3,000.00, respectively, for past and future pain and suffering, which could include disability, physical impairment, disfigurement, mental anguish, inconvenience, or loss of capacity for enjoyment of life. The trial court entered a final judgment in accordance with the verdict.

Poucher filed a motion for additur and a motion for new trial as to damages only. She alleged that the award for past medical expenses and the zero award for future medical expenses are contrary to the evidence. She argued that the awards for past and future pain and suffering and other non-economic damages are grossly inadequate and are totally inconsistent with the jury's finding Republic Services liable. While acknowledging her pre-existing TMJ condition, Poucher asserted that her pain increased and became constant and permanent, that her impairment rating was 10% of the body as a whole, and that her mouth opening was permanently limited to no more than 33 mm. (compared to a normal mouth opening of 40-50 mm. for someone Poucher's age) after the recycling bin incident.

Republic Services filed a response contending that as Poucher's TMJ had progressively worsened and had not been aggravated by the recycling bin incident, the verdict is reasonable because the jury attributed most of Poucher's problems and her need for treatment and medication to causes other than being struck by the recycling bin; and because the jury considered the problems resulting from the recycling bin incident to be only temporary. Republic Services opposed Poucher's motions to tax costs and for a new trial on damages. No objection to the verdict as being inconsistent was made before the jury was discharged. After a motion hearing, the trial court granted an additur of $20,000.00 for future medical damages and an additional $963.97 for past medical damages (which, with the jury's award, totaled the $1,927.97 claimed for past medical expenses). An additur was denied as to past and future non-economic damages such as pain and suffering. The court found an inconsistency in the jury's verdict allowing an award for future pain and suffering but awarding zero for future medical expenses. The motion to tax costs was granted.

Issue of Inconsistent Verdict

"A verdict is clothed with a presumption of regularity and is not to be disturbed if supported by the evidence." Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109, 110 (Fla. 3d DCA 1992) (on motion for clarification). The Fourth District Court has characterized an inconsistent verdict as follows:

Where the findings of a jury's verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court's judgment based thereupon is erroneous.

Crawford v. Dimicco, 216 So.2d 769, 771 (Fla. 4th DCA 1968). As the alleged error is one of law, it is subject to a de novo standard of review. Republic Services argues, first, that there is no inconsistency in the verdict, for the evidence supports a reasonable conclusion that although Poucher might experience some future pain and suffering, etc., resulting from the recycling bin incident, her future need for medical treatment or medical expenses, if any, will arise solely from other causes. Cf. Allstate Ins. Co. v. Manasse, 707 So.2d 1110 (Fla.1998)

(finding no inconsistency in jury's verdict, where insured plaintiff's permanent injury and award of future medical expenses did not entitle her to future non-economic damages from uninsured motorist carrier; jury reasonably could have concluded such palliative care was reasonable but that future pain and suffering either was not proven by greater weight of evidence or was not compensable because continuing complaints of pain arose from reasons unrelated to accident). Second, Republic Services asserts that any such claim was waived because it was not raised before the jury was discharged and it is not "of a fundamental nature." N. Am. Catamaran Racing Ass'n, Inc. v. McCollister, 480 So.2d 669, 671 (Fla. 5th DCA 1985). Cf. Sweet Paper Sales, 603 So.2d at 110 (finding that plaintiff's failure to object before jury's discharge to verdict on ground of inconsistency, i.e., an issue not of constitutional or fundamental character, constituted waiver of issue for appellate review); and Moorman v. Am. Safety Equip., 594 So.2d 795 (Fla. 4th DCA) (finding, despite claim that error was fundamental, that issue of alleged inconsistent jury verdict was waived by seat belt manufacturer in products liability action, where no objection was made before jury was discharged), rev. den., 606 So.2d 1164 (Fla. 1992). Republic Services is correct in both respects.

Granting an Additur

The parties agree that the standard of review of an order granting additur is "clear abuse of discretion." Basel v. McFarland & Sons, Inc., 815 So.2d 687, 696 (Fla. 5th DCA 2002); Aurbach v. Gallina, 721 So.2d 756 (Fla. 4th DCA 1998). Section 768.74(1), Florida Statutes (1999), states:

(1) In any action to which this part applies wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.

Subsection (2) of the same statute provides that "[i]f the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be." Subsection (5) provides that in determining whether an award is inadequate given the facts and circumstances presented to the jury, and in determining the amount of the award's inadequacy, the trial court is to consider the following criteria, inter alia:

(b) Whether it appears that the trier of fact

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