47 Fla. L. Weekly D2380a

AMY MARINEC, Appellant, v. PROGRESSIVE SELECT INSURANCE COMPANY, Appellee. 2nd District. Case No. 2D20-3351. November 18, 2022. Appeal from the Circuit Court for Pinellas County; Linda Allan, Judge. Counsel: Thomas J. Seider of Brannock Humphries & Berman, Tampa, for Appellant. Jennifer C. Worden and Daniel A. Martinez of Martinez Denbo, LLC, St. Petersburg, for Appellee.

(STARGEL, Judge.) Amy Marinec appeals from an order granting Progressive Select Insurance Company’s motion for new trial in this action for underinsured motorist benefits. Because the trial court failed to apply the correct legal standard in granting Progressive’s request for a new trial, we reverse.Background

In April 2016, Marinec was injured in an automobile accident with an underinsured driver. Due to her injuries, Marinec sued her insurer, Progressive, for underinsured motorist benefits. Progressive admitted that the driver was negligent but disputed the extent of Marinec’s injuries, so the case went to trial on the issue of damages. At trial, Marinec introduced evidence regarding the permanent injuries she suffered in the accident, her past and future medical expenses, and her future prognosis. Progressive took the position that Marinec’s injuries were not permanent and that she should not recover damages for future medical treatment or noneconomic damages. After deliberating, the jury returned a verdict for Marinec, finding that she had suffered a permanent injury and awarding damages in the amounts requested by her counsel: $20,005.80 for past medical expenses, $405,081 for future medical expenses, $245,160 in past noneconomic damages, and $1,511,000 in future noneconomic damages.

Progressive filed a motion for new trial and a motion for remittitur. The motion for new trial cited two alleged errors during trial and claimed that the awards for future medical expenses and noneconomic damages were not supported by the evidence. Similarly, the remittitur motion argued that the verdict was not supported by the evidence and that the noneconomic damages awarded were indicative of prejudice or passion on the part of the jury.

In response to Progressive’s motions, Marinec argued that the remittitur motion was legally deficient because it did not suggest an amount to which the verdict should be remitted. See Fla. R. Civ. P. 1.535(a) (2020) (requiring a remittitur motion to state, among other things, “the amount the movant contends the verdict should be”). The trial court agreed and, after holding a hearing on Progressive’s motions, entered an order denying the remittitur motion “without prejudice to refile in accordance with this order within 10 days.”

Progressive then filed an amended remittitur motion requesting that the amounts for future medical expenses and noneconomic damages be reduced to zero. After realizing that remittitur motions cannot be denied without prejudice and that orders disposing of such motions cannot be modified or reconsidered, see McMahon v. Carter, 818 So. 2d 560, 561 (Fla. 2d DCA 2002), the trial court entered an order denying the amended motion as moot. At the same time, the court also entered an order requesting supplemental briefing on the question of whether it could lawfully grant a new trial exclusively on the basis that the verdict was excessive where the motion for remittitur was denied as untimely.

In her supplemental brief, Marinec argued that the trial court could not use the remittitur statute to grant a new trial based on excessive damages when it had already denied a remittitur. Progressive argued, however, that the remittitur statute was not “the exclusive authority for granting a new trial when a verdict is deemed excessive” and urged the court to apply the common law rule which allows for a new trial to be ordered based on an excessive verdict “when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice.” Brown v. Est. of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). After reviewing the parties’ supplemental briefs, the trial court rendered an order granting Progressive’s motion for new trial. Despite having previously denied the remittitur motion as legally insufficient, the court found that it had the authority to grant a new trial because “it is clear from the record . . . that [Marinec] contested any finding that the damages awarded were excessive and any proposed remittitur.”Analysis

This court generally reviews orders on motions for new trial for an abuse of discretion. Lively v. Grandhige, 313 So. 3d 917, 919 (Fla. 2d DCA 2021). “[H]owever, where the issue is whether the trial court employed the proper standard when ruling on the motion for new trial, a de novo standard of review is employed.” Id.; see also Meyers v. Shontz, 251 So. 3d 992, 1000 (Fla. 2d DCA 2018) (“If the trial court’s order is based on an error of law . . . we do not afford it that kind of deference because the trial court’s ability to consider and resolve legal issues is not superior to our own.”).

Marinec argues that reversal is necessary because the trial court erroneously relied upon the remittitur statute, section 768.043, Florida Statutes (2020), in granting Progressive’s motion for new trial. This argument is well-taken. “The procedure under section 768.74, Florida Statutes (1997), for remittitur and additur apply only upon the proper motion of a party.” Brown, 749 So. 2d at 498.¹ When the remittitur procedure is invoked by proper motion, the “trial court must order an additur or remittitur prior to ordering a new trial.” Waxman v. Truman, 792 So. 2d 657, 659 (Fla. 4th DCA 2001).

In this case, Progressive’s remittitur motion was denied as legally insufficient, and its amended remittitur motion was prohibited by rule. Therefore, because Progressive never filed a proper remittitur motion, the remittitur procedure did not apply, and the trial court could not order a new trial based on section 768.043.² This left the trial court with only Progressive’s motion for new trial, which was subject to the common law standard for new-trial motions expressed by the supreme court in Brown. See generally Adams v. Wright, 403 So. 2d 391, 394-95 (Fla. 1981) (finding no conflict between section 768.043 and Florida Rule of Civil Procedure 1.530, which governs new-trial motions, because “[t]he statute merely provides an alternative means of redress for an existing grievance of a litigant”).

Nevertheless, despite already having disposed of the remittitur motion, the trial court began its analysis in the new-trial order by setting out the factors under section 768.043(2) for determining whether a jury award is clearly excessive or inadequate. The trial court then applied those statutory factors to the evidence adduced at trial, before ultimately concluding that the jury award was excessive and ordering a new trial on that basis. The court stated that its decision was based “[u]pon careful consideration of each of the factors listed in the cases cited above and [section 768.043(2)].”

Progressive attempts to minimize the trial court’s references to the remittitur statute by arguing that the court nevertheless applied the correct standard in granting a new trial. But while both prongs of the common law test were also referenced in the trial court’s discussion in the new-trial order, the court’s analysis clearly hinged on the factors set forth in the remittitur statute. For instance, the court found that “the jury clearly ignored the evidence presented by the defense” in awarding future medical expenses, that the award of noneconomic damages “does not bear a reasonable relation to the amount of damages proved and the injuries suffered,” and that the verdict “could not be adduced in a logical manner by reasonable persons.” Cf. § 768.043(2)(b)-(e). Accordingly, because the trial court’s order reflects that its decision to grant a new trial was based on an incorrect legal standard, we must reverse.

Having determined that the order granting a new trial must be reversed, we must now consider whether to remand for reinstatement of the verdict or for the court to reconsider the motion for new trial under the correct standard. See Meyers, 251 So. 3d at 1004. In making this determination, “the dispositive question is ‘whether the trial court would have granted a new trial but for the error of law.’ ” Id. (quoting Van v. Schmidt, 122 So. 3d 243, 260 (Fla. 2013)). “If the answer to that question is no, we remand for reinstatement; if we cannot tell what the trial court would have done but for the error, we remand for reconsideration.” Id. (citing Van, 122 So. 3d at 260).

Due to the nature of the trial court’s legal error, and in view of the evidence adduced at trial, this is not the type of case in which we can definitively say that the trial court would not have granted a new trial had it applied the correct legal standard. Under the common law rule, the trial judge has broad discretion in considering whether to grant a new trial on the grounds of an excessive verdict. Brown, 749 So. 2d at 497-98. Such discretion, while not unlimited, permits the granting of a new trial even where it is not “clear, obvious, and indisputable that the jury was wrong.” Id. at 497; see also Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959) (“[A] motion for new trial . . . is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of [the witnesses] is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.” (citations omitted)).³ We therefore find it appropriate to remand this case for the trial court to reconsider the motion for new trial based on the correct legal standard.

Reversed and remanded. (SLEET and ATKINSON, JJ., Concur.)

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¹While section 768.74 governs remittiturs generally, section 768.043 applies specifically to remittiturs in actions arising out of the operation of a motor vehicle. In all pertinent respects, the statutes are essentially identical.

²Even assuming the trial court could grant relief under the remittitur statute despite Progressive’s failure to file a proper motion, we are unable to find any support in the record for the trial court’s assertion that Marinec would have necessarily contested any proposed remittitur.

³As the courts have repeatedly explained, the existence of competent substantial evidence in support of the jury’s verdict is not dispositive of a motion for new trial. See Brown, 749 So. 2d at 498 (“The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.”); see also Van, 122 So. 3d at 260; Graham Cos. v. Amado, 305 So. 3d 572, 578 (Fla. 3d DCA 2020).* * *