Torts
— Automobile accident — Damages — Past and future medical expenses — Additur
— Error to grant plaintiff’s motion for additur without including in order an
explanation why additur was warranted or providing option for new trial in lieu
of additur — Moreover, additur was not appropriate where evidence was
conflicting regarding cause of radiating pain in plaintiff’s arm, so that jury
could have concluded that costs associated with radiating pain were unrelated
to automobile accident

ANTONIO FERRER, Appellant, v. ANA LA SERNA, Appellee. 4th
District. Case No. 4D14-2475. November 25, 2015. Appeal from the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Marina Garcia-Wood,
Judge; L.T. Case No. 11-031247 (18). Counsel: Michael J. Neimand, General
Counsel of United Automobile Insurance Company, Miami, for appellant. Nancy
Little Hoffman of Nancy Little Hoffman, P.A., Fort Lauderdale, for appellee.

(LEVINE, J.) The issue in this case is whether the trial
court erred in awarding additur. We find that the trial court erred in not
providing its findings in support of additur. Furthermore, because the evidence
was conflicting and the jury could have reached its verdict consistent with the
evidence, we reverse with instruction to reinstate the jury verdict.

Antonio Ferrer struck Ana La Serna’s car at a low speed.
Although she did not go see a doctor immediately, a few days later La Serna
went to see her doctor, Dr. Epstein. Dr. Epstein found the accident had caused
La Serna acute distress, a neck injury, sprains, and an aggravation to a
preexisting back condition. Epstein also discovered La Serna suffered from a
degenerative spinal condition. Although the accident had not caused the
condition, it had resulted in the condition becoming symptomatic.

Dr. Epstein recommended La Serna not get chiropractic back
adjustments as they could aggravate her condition. Despite Dr. Epstein’s
recommendation, La Serna received chiropractic back adjustments from Dr.
Rodriguez on a regular basis, multiple times a week, for several months.

Nearly a year after the accident, La Serna started to feel a
radiating pain in her forearm. Dr. Epstein thought the inflammation in her neck
caused the radiating pain in her arm, but was unable to objectively correlate
the accident to the radiating pain. Dr. Troiano, who was retained by the
defense, also indicated there were no objective findings to support a
connection between La Serna’s radiating pain and the car accident. Dr.
Rodriguez, however, expressed “one hundred percent” certainty that the accident
resulted La Serna’s symptoms.

La Serna sued Ferrer for motor vehicle negligence, seeking
$11,695.31 for past and future medical expenses. The jury returned a verdict
for La Serna and found she had suffered a permanent injury. The jury awarded
her $8,000 in damages for past and future medical expenses.

La Serna moved for additur, arguing the evidence was
undisputed and that she should be awarded an additur for $3,695.31, the
difference between what she requested and what the jury awarded. The trial
court granted La Serna’s motion. However, its order contained neither an
explanation for why additur was warranted nor an option for a new trial in lieu
of additur.

On appeal, Ferrer argues the trial court erred when it
failed to include in its order the justification for additur or the option for
a new trial. Ferrer requests that this court conduct an independent review of
the record to determine whether the facts of this case permit an additur award.

A trial court’s additur award is reversed only where there
has been a clear abuse of discretion. Aurbach v. Gallina, 721 So. 2d
756, 758 (Fla. 4th DCA 1998).

Pursuant to section 768.043, Florida Statutes, a trial court
may grant additur if the court determines the amount awarded was clearly
inadequate. The statute sets forth the factors the court must consider before
awarding additur:

(a)
Whether the amount awarded is indicative of prejudice, passion, or corruption
on the part of the trier of fact.

(b)
Whether it clearly appears that the trier of fact ignored the evidence in
reaching the 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 or conjecture.

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

(e)
Whether the amount awarded is supported by the evidence and is such that it
could be adduced in a logical manner by reasonable persons.

§ 768.043(2)(a)-(e), Fla. Stat.

Furthermore, when awarding additur, the trial court must
provide its findings in support of the award. See Airstar, Inc. v. Gubbins,
668 So. 2d 311, 312 (Fla. 4th DCA 1996). If the trial court fails to set forth
its findings, ordinarily the appellate court will relinquish jurisdiction so
the trial court can specify its grounds for awarding additur. Id. However,
where it is apparent from the record that awarding additur was an abuse of
discretion, we will reinstate the jury verdict. See id. at 312-13.

In the present case, the trial judge’s order did not set
forth any findings in support of additur nor did it reference the statutory
criteria. Although normally we would relinquish jurisdiction so the trial court
could make the requisite findings, a review of the record leads us to conclude
the trial court abused its discretion.

“Additur is an appropriate remedy only where a damage award
is so inadequate as to shock the conscience of the court.” Aurbach, 721
So. 2d at 758. Thus, where the “undisputed evidence” supports an award of damages
and the jury fails to make such an award, the trial court must award additur. See
Ortlieb v. Butts, 849 So. 2d 1165, 1167 (Fla. 4th DCA 2003). But where the
“evidence is conflicting and the jury could have reached its verdict in a
manner consistent with the evidence,” the trial court may not award additur. Id.

In Airstar, the evidence was in “sharp conflict” as
to whether the plaintiff suffered a permanent injury as a result of a car
accident. Airstar, 668 So. 2d at 312-13. Although the jury returned a
verdict finding the plaintiff had not suffered permanent injury, the trial
court granted additur. Upon examining the record, this court found the jury
could have reached its verdict in a manner consistent with the evidence. Thus,
to award additur, the trial court would have had to come to a conclusion
contrary to the jury’s. “Mindful that a trial judge should not sit as a seventh
juror with veto power,” we reinstated the verdict. Id. at 313.

In this case, the evidence was conflicting regarding whether
the accident caused the radiating pain in La Serna’s arm. Of the doctors who
testified, only the chiropractor, Dr. Rodriguez, was able to say with certainty
that the accident caused La Serna’s symptoms. The other testimony was, at best,
equivocal, because the doctors were unable to objectively establish the
accident caused La Serna’s radiating pain. Furthermore, Dr. Epstein told La
Serna that she should not get chiropractic neck adjustments because it could
aggravate her symptoms. La Serna nevertheless got her neck adjusted multiple
times a week for several months.

Because the evidence was in conflict, the jury could have
concluded, consistent with the evidence, that the costs associated with La
Serna’s radiating pain were unrelated to the accident. See id. For the
trial court to have granted additur, it would have had to come to the opposite
conclusion and determined the accident caused La Serna’s radiating pain. Id.
Therefore, because the “undisputed evidence” did not support an award of
additur, we remand to the trial court with instruction to reinstate the jury’s
verdict. See Ortlieb, 849 So. 2d at 1167.

In summary, we hold the trial court erred when it did not
state its findings in support of additur in the record. We further hold the
trial court abused its discretion in awarding additur because the record does
not support the award.1

Reversed and remanded. (DAMOORGIAN and KLINGENSMITH,
JJ., concur.)

__________________

1Although we reverse on the ground
that the trial court abused its discretion in awarding additur, we further note
the trial court erred when it failed to provide Ferrer the option of a new
trial. See Concept, L.C. v. Gesten, 662 So. 2d 970, 974 (Fla. 4th DCA
1995).