White Const. Co., Inc. v. Dupont, AE-294

• Decision Date: 12 April 1983
• Docket Number: No. AE-294,AE-294
• Citation: 430 So.2d 915
• Parties: WHITE CONSTRUCTION COMPANY, INC. and Limerock Industries, Inc., Appellants, v. Nathaniel DUPONT and Janey B. Dupont, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 915

430 So.2d 915

WHITE CONSTRUCTION COMPANY, INC. and Limerock Industries Inc., Appellants, v. Nathaniel DUPONT and Janey B. Dupont, his wife, Appellees.

No. AE-294.

District Court of Appeal of Florida First District.

April 12, 1983.

Rehearing Denied May 27, 1983.

Dominic M. Caparello, H. Michael Madsen and Anne Longman of Messer, Rhodes, Vickers, Tallahassee, for appellants.

W. Dexter Douglass and Michael F. Coppins of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellees.

ERVIN, Judge.

Appellants, White Construction Company, Inc. (White) and Limerock Industries, Inc. (Limerock) appeal a jury verdict awarding $5,550,000.00 in compensatory and punitive damages to appellees, Nathaniel and Janey Dupont, in an action for personal injuries and loss of consortium. Of the five points raised on appeal, we find merit only with point two, challenging the award of $1,025,000.00 to Janey Dupont, Nathaniel's wife, for loss of consortium as excessive. We therefore affirm without discussion points one, three, four and five and reverse as to point two only. ¹

The record discloses that Nathaniel Dupont, a 55-year old independent truck owner/operator, arrived at Limerock's mine on September 13, 1977 to pick up a load of rock. Dupont parked his four-axle tractor-trailer, with the motor running, to wait his turn for loading, and he stepped out of the cab and went between the trailer and the cab for the purpose of cleaning the cab. A Limerock employee, driving a CAT 988 loader, weighing some forty tons and standing approximately 22 feet high, proceeded to back the loader around a large pile of limerock toward Dupont's trailer. As the loader, proceeding at top speed, approached Dupont's trailer, the driver looked back, and, realizing he was going to hit the trailer, shouted a warning to Dupont. The loader struck the back end of the trailer and the impact apparently caused its gear to pop into forward position, forcing the trailer to advance about one and half times its length, and in the process to roll over Dupont, who in turn suffered permanent disability as a result of his injuries.

Dupont brought an action against Limerock, the corporation that owns the mine, and White, the corporation that owns the loader which was then leased to Limerock, ² seeking compensatory and punitive damages for his personal injuries. Janey Dupont joined in the action, seeking damages for her loss of consortium. The jury returned a verdict in favor of the Duponts for the following damages: $1,025,000.00 in compensatory damages to Nathaniel Dupont, $1,025,000.00 in damages to Janey Dupont for loss of consortium, $2,000,000.00 in punitive damages against Limerock, ³ and $1,500,000.00 in punitive damages against White.

Appellants contend that the award of $1,025,000.00 for loss of consortium must be reversed as excessive because the jury could only have arrived at that figure through motivations of passion or prejudice, or because the award amounts to a double recovery of damages properly awarded to Mr. Dupont. Although we find nothing in the record substantiating the former argument, we find that the record supports appellants' claim of double recovery, requiring that the award be reversed. In reaching this conclusion, we are aware of the general rule regarding review of a damage award by an appellate court:

The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict. This test is simply stated but may be difficult to apply in a particular case. We are aware of the difficulties and frustrations courts experience in the search for the mythical jury of reasonable men. The appellate court must be ever alert against the temptation to substitute its "verdict" for that of the jury.

Straker v. Lynch, 335 So.2d 356, 357 (Fla. 1st DCA 1976) (citing Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969)). We further recognize that, as in this case, the "correctness of the jury's verdict is strengthened when the trial judge refuses to grant a new trial or a remittitur." Lassitter v. International Union of Operating Engineers, 349 So.2d 622, 627 (Fla.1976). "On the other hand, we must not refuse to act to relieve the injustice of either a grossly inadequate or excessive verdict." Straker, 335 So.2d at 357.

Before 1971 a wife could not maintain an action for loss of consortium in Florida when her husband was injured due to the negligent or intentional acts of another. In Gates v. Foley, 247 So.2d 40 (Fla.1971), the Florida Supreme Court, rejecting precedent and the common law rule, ⁴ elected to follow the trend in other jurisdictions by recognizing that a wife is entitled to recover for loss of consortium in the same manner as her husband if she were injured. See also Scudder v. Seaboard Coast Line Railroad, 247 So.2d 46 (Fla.1971); Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla. 1st DCA 1972); Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA 1974).

An action for loss of consortium is, of course, a derivative action and the jury must first find that the husband has sustained compensable injuries at the hands of another before the wife's action may be considered. If that threshold is met, the wife must then "present competent testimony concerning the impact which the accident had on the marital relationship and, more specifically, evidence concerning her loss of consortium." Albritton v. State Farm Mutual Automobile Insurance Company, 382 So.2d 1267, 1268 (Fla. 2d DCA 1980). Upon such a showing, the wife is thus entitled to, at the very minimum, nominal damages. Id. at 1269. See also, Shaw v. Peterson, 376 So.2d 433 (Fla. 1st DCA 1979).

We are not confronted with a situation in which only nominal damages were awarded, but rather with an award which appellants contend is excessive and amounts to a double recovery. In Florida, because the types of losses which the spouse may recover have not been clearly defined, the potential danger of a double recovery is always lurking. ⁵ One commentator has observed that "[t]he concept of 'consortium' embraces two contrasting types of elements. The tangible elements include support and services provided by the other spouse, while intangible elements encompass such items as love, companionship, affection, society, sexual relations, comfort, and solace." Annotation, 74 ALR3d 805, 809 (1976) (e.s.). In Florida, there is no question that recovery may be had for the intangible elements of loss of consortium, which, as defined by Gates, consist of

the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.

247 So.2d at 43 (citing Lithgow v. Hamilton, 69 So.2d 776, 778 (Fla.1954)). Contrasted against these elements, Gates forbids, however, recovery by the wife for the tangible loss of "support or earnings which the husband might recover in his own right." 247 So.2d at 43. The law of consortium in Florida is less clear as to the wife's right to recover for "services" which the husband is no longer able to perform.

In an earlier decision addressing the issue of what services the jury may consider in an action for wrongful death and loss of consortium brought by a husband after the death of his wife, it was held that the composition of this element includes the

pecuniary value of services which the husband might reasonably expect to have received from the deceased wife if she had not been killed, less maintenance costs, of course; this includes the value of such services as the wife was accustomed to perform in the household and which will have to be replaced by hiring services; services ordinarily performed by the deceased wife in the care and moral training of the minor children in the household; and any special service which the wife was accustomed to perform for the husband in the household, and in his business without compensation, which will have to be replaced by hired services.

Lithgow v. Hamilton, 69 So.2d 776, 778 (Fla.1954). Because the plaintiff in Lithgow was able to substantiate the actual cost of obtaining the services of a "combination housekeeper-governess-counsellor", the award of damages, including those for loss of...