Date: 11-21-2007

Case Style: Lloyd Ellender v. Theodore M. Bricker

Case Number: 2D06-4666

Judge: Canady

Court: Florida Court of Appeal on appeal from the Circuit Court for Sarasota County

Plaintiff's Attorney:

Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Frank D. Butler of Frank D. Butler, P.A., Pinellas Park, for Appellant.

Defendant's Attorney:

Charles W. Hall and Mark D.Tinker of Fowler White Boggs Banker P.A., St. Petersburg, for Appellee.

Description:

Lloyd Ellender, the plaintiff in a personal injury action arising from a motor vehicle accident, appeals a final judgment based on a jury verdict against defendant Theodore M. Bricker which awarded past and future economic damages to Ellender. We affirm without comment the circuit court's denial of Ellender's motion for additur or new trial on the issue of economic damages, but we reverse and remand for further proceedings on noneconomic damages.

I. Background

Ellender sued Bricker, claiming that Bricker's negligent operation of his motor vehicle on Interstate 75 caused the accident which resulted in Ellender's injuries.1 The jury found Bricker negligent and determined that his negligence was the legal cause of injury to Ellender. Ellender asked the jury to award him $44,543.24 in past medical expenses and $52,000 in future medical expenses, but the jury awarded $22,271.62 in past medical expenses and $26,000 in future medical expenses. Ellender asked the jury to award $54,000 for past pain and suffering and $130,000 for future pain and suffering. The jury awarded zero damages for past and future pain and suffering.

After the jury was discharged, Ellender's counsel stated:

[W]e feel like we have an inconsistent verdict. There was permanency found, liability found, but no pain and suffering in the past or in the future here. I mean, obviously, we're going to move for new trial on this or something.

Would the Court like us to do that by written motion?

The court answered:

We have let the jury go regarding the issue of inconsistent verdict, so the jury's already left on that issue. So I'm going to deny that issue. If you wish to file motions at the appropriate time, obviously you can do so.

Ellender filed a motion for additur or, in the alternative, for new trial on damages pursuant to section 768.043, Florida Statutes (2003). He argued that the jury's award of damages was "clearly inadequate in light of all of the evidence at trial." The circuit court denied Ellender's motion and entered judgment in favor of Ellender consistent with the jury's verdict.

II. Issues on Appeal

On appeal, Ellender first argues that the circuit court erred in denying his motion for additur or new trial on the issue of past noneconomic damages because there was undisputed evidence that he suffered pain from the injury and resulting necessary treatments. He claims that the amount awarded for past medical expenses required the jury to award some noneconomic damages. Bricker responds that Ellender did not preserve the issue for appeal because he did not object to the inconsistent verdicts before the jury was discharged. Ellender replies that the jury's verdict was inadequate, not inconsistent, and that his motion for additur or new trial was sufficient to preserve the issue.

Ellender also claims that the undisputed evidence that his injuries will cause him pain and suffering in the future required an award of future noneconomic damages. He argues that such undisputed evidence concerning future pain and suffering makes this case distinguishable from other cases approving zero awards for future noneconomic damages. Bricker asserts that the evidence showed that Ellender's pain is caused by his preexisting back injury and his history of migraine headaches and that his future medication and treatments would obviate any future pain.

III. Preservation

A party may raise the issue of an inadequate verdict for the first time in a posttrial motion for additur or new trial. Cocca v. Smith, 821 So. 2d 328, 330 (Fla. 2d DCA 2002). However, "[t]o preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged and ask the trial court to reinstruct the jury and send it back for further deliberations." Id. Based on the pertinent case law, we conclude that Ellender's argument constitutes a claim that the verdict was inadequate and that the issue therefore was properly preserved by his posttrial motion.

In Cowen v. Thornton, 621 So. 2d 684, 686 (Fla. 2d DCA 1993), the jury found the defendant 25 percent liable but awarded zero damages, even though the defendant did not contest the plaintiff's evidence regarding the amount of damages he suffered. The plaintiff filed a motion for additur and for new trial, which was denied by the trial court. On appeal, the defendant argued that the plaintiff failed to preserve the error because he did not bring the inconsistent verdict to the trial court's attention before the jury was discharged. This court rejected the defendant's argument and treated the claim as one of an inadequate verdict. Id. at 687.

In Avakian v. Burger King Corp., 719 So. 2d 342, 344 (Fla. 4th DCA 1998), the court held that "[a] verdict is not necessarily inconsistent because it fails to award enough money, or perhaps no money at all, for future noneconomic damages after awarding past and future medical expenses and past lost earnings." The plaintiff had challenged the jury verdict, which awarded past and future medical expenses and past lost earnings but did not award future lost earnings or any noneconomic damages. Id. at 343. "Under such circumstances, the issue is the adequacy of the award, not its consistency with any other award by the verdict." Id. at 344.

In Deklyen v. Truckers World, Inc., 867 So. 2d 1264, 1266 (Fla. 5th DCA 2004), the court considered whether a zero jury award for noneconomic damages was an inconsistent verdict or an inadequate verdict when the jury awarded substantial past and future economic damages. Applying Avakian, the court stated: "[W]e see no inconsistency in the verdict. The jury made no finding of fact that was inconsistent with any other finding it made." Deklyen, 867 So. 2d at 1266. The court characterized the plaintiff's challenge of the verdict as one of an inadequate verdict that could be raised in a posttrial motion for new trial. Id.

In this case, Ellender's claim is one of an inadequate verdict because the thrust of his argument is that the zero award for past and future noneconomic damages is inadequate in light of the evidence presented at trial. Ellender filed a proper motion for additur or new trial raising the issue of inadequacy, and the fact that Ellender's counsel referred to the verdict as inconsistent after the jury was discharged has no bearing on the issue. See DiMare, Inc. v. Robertson, 758 So. 2d 1193, 1194 (Fla. 3d DCA 2000) (noting that although the trial court referred to verdict as inconsistent in a colloquial sense, it was technically describing an inadequate verdict); Avakian, 719 So. 2d at 344 ("Although Plaintiff's counsel referred to the jury's three verdicts as inconsistent and inadequate, it cannot be said that the verdicts were inconsistent.").

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http://www.2dca.org/opinion/November%2014,%202007/2D06-4666.pdf

Outcome: We reverse the circuit court's final judgment and remand for further proceedings on Ellender's motion for additur or new trial consistent with this opinion. See § 768.043(1) ("If the party adversely affected by such . . . additur does not agree, the court shall order a new trial in the cause on the issue of damages only."); Truelove v. Blount, 954 So. 2d 1284, 1289-90 (Fla. 2d DCA 2007).

Reversed and remanded.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None