Insurance
— Uninsured motorist — Torts — Automobile accident — Damages — Noneconomic
— Past and future pain and suffering — Remittitur — Trial court abused its
discretion when it reduced jury awards for past and future pain and suffering
against UM insurer by nearly $1 million without explaining what in the record
demonstrated the need for remittitur and the reason for the amount chosen —
Comparison of pain and suffering awards in other cases does not show basis for
affirming trial court in instant case — Remand for entry of order which
contains necessary findings and conclusions to support remittitur

JEFFREY P. ARNOLD and TINA ARNOLD, Appellants, v. SECURITY NATIONAL
INSURANCE COMPANY, Appellee. 4th District. Case No. 4D13-0061. September 16,
2015. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian
River County; Cynthia L. Cox, Judge; L.T. Case No. 312010CA073563. Counsel:
Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach,
P.A., West Palm Beach, and Brian J. Connelly of Gould Cooksey Fennell, P.A., Vero
Beach, for appellants. Rosemary B. Wilder of Marlow, Adler, Abrams, Newman
& Lewis, Coral Gables, for appellee.

(CONNER, J.) Jeffrey P. Arnold appeals the trial court order reducing the
jury awards for past and future pain and suffering against Security National
Insurance Company (“Security”) by a total of $996,000.1 We reverse the order because the record fails
to identify or explain what establishes the need and appropriate amount for a
remittitur. We remand for a further determination by the trial court on the
issue of remittitur.

Arnold sued Security, his uninsured motorist carrier, after being injured
in a car accident. His coverage was limited to $100,000.2 Arnold alleged that he suffered physically,
emotionally, and financially as a result of the uninsured driver’s negligence.

At trial, Arnold produced expert testimony to support his claims for past
and future medical expenses related to a herniated disc caused by the accident.3 He also produced evidence in support of his
claims for past and future pain and suffering. The specific evidentiary
contention that frames most of the arguments on appeal revolves around whether,
in the future, Arnold will either have to (1) undergo a disc fusion surgery or
(2) endure a life of pain, if the microdiscectomy surgery that was scheduled to
occur shortly after trial was not substantially successful.

Q. We don’t
know what is going to happen to Mr. Arnold? 

A. No, we
don’t. 

Q. You don’t
know if he’s going to need an additional surgery at all, do you?

A. That’s
correct.

After deliberating, the jury returned a verdict awarding damages in the
following amounts:

Past Medical
Damages $ 26,413

Future Medical
Damages $126,000

Past Lost
Earnings $ 35,000 

Past Pain and
Suffering $500,000 

Future Pain and
Suffering $800,000

This amounted to a total award of $1,487,413.

Post-trial, Security filed a motion for new trial and a motion for
remittitur. Both motions were predicated in part on the contention that the
award of future medical expenses for a disc fusion surgery was based on
speculative evidence. Security argued, post-trial, that Arnold’s expert
testimony supported an award of only $30,000 for future medical expenses,
representing the cost of a microdiscectomy surgery and not the cost of a disc
fusion surgery.

The trial court denied the motion for new trial, but granted the motion
for remittitur, stating:

D. The
Plaintiff’s treating physician testified that the discectomy being planned at a
cost of approximately $30,000 was to resolve his symptoms. Evidence of a
Plaintiff’s pain and suffering over the last three years was limited and the
Plaintiff was able to work full-time and resume his normal activities. Any
surgeries after the discectomy and expenses related thereto were merely
speculative. The jury speculated on the future optional surgery and as a
result, the future medical expenses are excessive. Thus, the future medical
expenses award should be remitted to $30,000 (not $126,000). 

E. In light of
the testimony, the verdict and all of the facts and circumstances of this case,
the Court finds that the noneconomic damages were not within a reasonable range
of damages for the Defendant’s injury and were indicative of prejudice or
passion or misconception of the merits of the case and the amount does not bear
a reasonable relation to the amount of damages proven and injury suffered by
the Plaintiff. The Court further finds that the amount awarded is not supported
by the evidence and could not be adduced in a logical manner by reasonable
persons and after carefully considering the criteria set forth in Section
768.74(5), finds the noneconomic damages were excessive and should be remitted.

In total, the trial court granted remittitur in the amount of $996,000 as
follows:

 Category                        Jury Award           Amount After Remittitur
 Future Medical                      $126,000                         $30,000
 Past Pain & Suffering            $500,000                         $200,000
 Future Pain & Suffering        $800,000                         $200,000
 

This, accordingly, reduced the
final judgment amount to $491,413. Arnold gave notice he was appealing the
grant of remittitur. 

A trial court’s determination that a damage award is excessive and
requires a remittitur or a new trial is reviewed under a clear abuse of
discretion standard. Azoulay v. Condo. Ass’n of La Mer Estates, Inc., 94
So. 3d 686, 687 (Fla. 4th DCA 2012) (citing Aills v. Boemi, 41 So. 3d
1022, 1027 (Fla. 2d DCA 2010)).

Our supreme court has observed that

Sproule v. Nelson, 81 So. 2d 478, 481 (Fla. 1955).
Additionally, the court has written that

Higbee v. Dorigo, 66 So. 2d 684, 686 (Fla. 1953).

In granting a remittitur or an additur, there is always the concern that
the trial court is usurping the function of the jury. What makes the concern
more difficult is that “[t]he line of demarkation [sic] between the province of
the court and that of the jury in this, as in all other mixed questions of law
and fact, is often difficult to distinguish.” De la Vallina v. De la Vallina,
107 So. 339, 339 (Fla. 1926). Nonetheless, the law is clear that “the trial
judge does not sit as a seventh juror with veto power.” Laskey v. Smith,
239 So. 2d 13, 14 (Fla. 1970); see also Malpass v. Highlands Ins. Co.,
387 So. 2d 1042, 1043 (Fla. 3d DCA 1980) (“[T]he trial court improperly sat as
a seventh juror and, simply disagreeing with the size of the verdict, exercised
a veto power over it. This a court cannot do.”).

In discussing the function of the trial court when addressing a motion for
remittitur, the court has written:

In requiring
the entry of a remittitur to correct an excessive verdict or judgment, the
general rule seems to be that the amount of the excess must clearly appear from
the record, and then, if on the whole showing made by the record it appears
that the damages awarded by the jury are excessive, the court may require a
remittitur for the amount of the excess on condition that the judgment stand
for the balance, otherwise a new trial will be granted. 

From a study of
the foregoing cases, and many others of similar import, it is at once apparent
that from the face of the record the amount of the excess cannot always be
worked out with a mathematical precision, nor do we think the rule contemplates
this. It is, of course, preferable, if capable of being determined to
mathematical exactness, but may be arrived at through any process of
reasoning actuated and controlled by the facts in the record and guided by an
honest, sincere purpose to do justice to both parties to the cause in the lgiht
[sic] of these facts.

De la Vallina, 107 So. at 339 (emphasis added) (internal citations omitted). More
recently, the court has written:

Where recovery
is sought for a personal tort, . . . we cannot apply fixed rules to a given set
of facts and say that a verdict is for more than would be allowable under a
correct computation. In tort cases damages are to be measured by the jury’s
discretion. The court should never declare a verdict excessive merely because
it is above the amount which the court itself considers the jury should have
allowed. The verdict should not be disturbed unless it is so inordinately large
as obviously to exceed the maximum limit of a reasonable range within which the
jury may properly operate.

Bould v. Touchette, 349 So. 2d 1181, 1184-85 (Fla. 1977).

Arnold raises no contention on appeal that the trial court erred in
remitting the jury award for future medical expenses down to $30,000. Instead,
Arnold contends that the trial court erred in reducing the jury awards for past
and future pain and suffering. As to the reduction for past pain and suffering,
Arnold argues the record does not support the trial court’s finding that (1)
there was only limited evidence of Arnold’s pain and suffering during the three
years preceding trial, and (2) Arnold was able to work fulltime and resume his
normal activities. As to the reduction for future pain and suffering, Arnold
argues the record does not support the trial court’s implied finding that his
future microdiscectomy surgery would resolve all of his future pain.

Security argues that we should affirm the trial court because Arnold has
failed to demonstrate an abuse of discretion. More specifically, Security
argues that an award of $1,300,000 for pain and suffering shocks the judicial
conscience and has no rational relationship to the amount of damages proved and
the injury suffered. Security also argues that the combination of evidence that
the microdiscectomy surgery would relieve Arnold’s pain and the need for a
fusion surgery was highly speculative, coupled with one hour of jury
deliberation resulting in a verdict that mirrors the damages sought by Arnold’s
closing argument, demonstrates that the jury (1) was motivated by passion or
prejudice or (2) based its award on matters outside the evidence or irrelevant
matters. Finally, Security contends that the comparison of the total pain and
suffering jury award in this case with the pain and suffering awards in three
other Florida cases and four out-of-state cases, as argued to the trial court,
establishes the reasonableness of the trial court’s decision on remittitur.

Section 768.74, Florida Statutes (2013), sets forth the factors for a
court to consider when determining whether to grant a remittitur. Section
768.74(5) states:

(b) Whether it
appears that the trier of fact ignored the evidence in reaching a verdict or
misconceived the merits of the case relating to the amounts of damages
recoverable;

(c) Whether the
trier of fact took improper elements of damages into account or arrived at the
amount of damages by speculation and conjecture; 

(d) Whether the
amount awarded bears a reasonable relation to the amount of damages proved and
the injury suffered; and 

§ 768.74(5), Fla. Stat. (2013).

In addition to the statutory factors to be considered, Florida Rule of
Civil Procedure 1.530(f) has been construed to impose a requirement that an
order granting remittitur provide “an explanation founded in the record” for
the reduction in the jury award. See Wackenhut Corp. v. Canty, 359 So.
2d 430, 434 (Fla. 1978) (“[T]o facilitate intelligent appellate review of such
orders the reasons which produced the need for the new trial [after the trial
court finds remittitur is appropriate] must be set forth in the order.”); Zambrano
v. Devanesan, 484 So. 2d 603, 608 (Fla. 4th DCA 1986) (holding that an
order granting new trial if plaintiff did not accept remittitur amount did not
comply with Rule 1.530(f) because it failed to provide specific reasons for its
decision to reduce the award of punitive damages by a specific amount); Webb
Auto. Distribs., Inc. v. Baxter, 574 So. 2d 1139, 1140-41 (Fla. 4th DCA
1991) (explaining that an order granting remittitur but failing to explain the
reasons for the amount of the remittitur rendered the order “deficient,” citing
Wackenhut and Zambrano). Moreover, an order which “contains an
incantation of conclusory statements,” and merely tracks the language of
section 768.74 as reasons for the reduction and does not explain what in the
record supports its conclusion for the need and the amount of remittitur is
likewise “deficient.” Zambrano, 484 So. 2d at 608-09; Wackenhut,
359 So. 2d at 434 (“[R]equiring a remittitur without an explanation founded in
the record and . . . without stating reasons capable of demonstration in the
record or beyond the record (such as influences which aroused the passion and
prejudice of the jury), the trial court left the District Court of Appeal to
grasp at straws when it reviewed the order.”).

Rule 1.530(f) also states that “[i]f such an order is appealed and does
not state the specific grounds, the appellate court shall relinquish its
jurisdiction to the trial court for entry of an order specifying the grounds.”
Because the trial court in this case failed to explain what in the record
demonstrates the need for remittitur regarding the awards for pain and
suffering, and the reason for the amount chosen, we are unable to determine if
the trial court’s reduction is in accord with the law.

For two reasons, we reject Security’s argument that the comparison of pain
and suffering awards in other cases shows a basis to affirm the trial court.
First, all but one of the comparison cases cited by Security were decided
between 1997 and 2003; the 2010 comparison case awarded a much higher amount. The
comparison data may be stale or not representative. Second, Security argued to
the trial court that the comparison cases showed an average award of $375,000.
The transcript of the hearing indicates the trial court may have been
contemplating a higher amount than the comparison cases suggested, but the
trial court gave no insight as to what factors affected the court’s decision to
arrive at a total of $400,000. There is nothing in the record or written order
that makes it apparent why $200,000 is the appropriate amount, separately, for
both past and future pain and suffering.4

There have been instances in which appellate courts have been able to
avoid the need for remand for findings of fact and explanations by the trial
court because a review of the record on appeal provided a sufficient
explanation. See Fordham v. Carriers Ins. Co., 370 So. 2d 1197, 1199
(Fla. 4th DCA 1979); Hawk v. Seaboard Sys. R.R. Inc., 547 So. 2d 669,
672 (Fla. 2d DCA 1989) (suggesting an independent review of the evidence may be
a basis to affirm a remittitur where the written order does not state specific
findings). However, the record in this case does not allow us to avoid such a
remand. Therefore, we reverse the trial court’s order and remand the case for
entry of an order which contains the necessary findings and conclusions to
support the remittitur of the jury’s award for pain and suffering in this case.

Reversed and remanded with instructions. (DAMOORGIAN and
FORST, JJ., concur.)

__________________

1Arnold’s wife is also an appellant, but we
craft our opinion with reference to only Jeffrey Arnold to facilitate easier
reading.

2By separate order, we have denied
Security’s motion to dismiss this appeal on the grounds that the $100,000
limitation on coverage makes this appeal moot. See GEICO Gen. Ins. Co. v.
Paton, 150 So. 3d 804, 807 (Fla. 4th DCA 2014) (holding that a jury verdict
in excess of policy limits fixes the amount of damages in a first-party bad
faith action); Lund v. Dep’t of Health, 708 So. 2d 645, 646 (Fla. 1st
DCA 1998) (citing Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992)) (“A
generally recognized exception precluding dismissal of an otherwise moot case
occurs in situations wherein collateral legal consequences affecting the rights
of a party may flow from the issues to be decided.”).

3Security’s defense was that Arnold’s
physical condition was caused by previous injuries or normal degenerative
processes.

4Given the number of years between the
accident and trial (three years), as compared to Arnold’s life expectancy
post-trial (Arnold was 38 years old at the time of trial), it seems unusual
that one would conclude the amount awarded for pain and suffering for both
periods would be equal.