Torts
— Automobile accident — Damages — Verdict against manifest weight of
evidence — New trial — Appeals — Where trial court granted additur or new
trial, and additur was refused, the only issue before appellate court was
propriety of order granting new trial, not propriety of the additur itself —
Trial court’s conclusions that certain damage awards were inadequate were not
unreasonable

DONALD EMMONS, Appellant, v. THOMAS WAYNE AKERS, II and
CASSANDRA AKERS, as husband and wife, Appellees. 1st District. Case No.
1D14-4625. Opinion filed March 8, 2016. An appeal from the Circuit Court for
Escambia County. Ross Goodman, Judge. Counsel: Jane Anderson and Kansas R.
Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellant. Stephen H.
Echsner and E. Samuel Geisler of Aylstock, Witkin, Kreis & Overholtz, PLL,
Pensacola and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for
Appellees.

(WINOKUR, J.) Finding that the amount awarded by the jury in
this personal injury action was inadequate, the court below granted appellees’
motion for additur. Upon appellant’s refusal to agree to the additur, the court
ordered a new trial on the issue of disputed damages only, as required by
statute. Appellant argues that the jury’s award was supported by the evidence
and that the court erred by disturbing the verdict. While the trial court must
give substantial deference to the jury’s verdict in determining whether to
grant an additur, precedent requires this Court to give deference to the trial
court’s order granting new trial. Applying this standard, we affirm the order
under review.

Appellees, Thomas Wayne Akers II, and his wife Cassandra
Akers, filed a personal injury action against Appellant, Donald Emmons, as a
result of an automobile accident. Mr. Akers amended his existing negligence
action, from a separate automobile accident, to include a claim against Emmons.
Mr. Akers sought damages for bodily injury, medical expenses, and loss of
earnings, as well as damages for the aggravation of a pre-existing condition.
Ms. Akers sought damages for loss of consortium.

For the accident involving Emmons, the jury returned a
verdict for Mr. Akers finding he had suffered a permanent injury or an
aggravation of a pre-existing condition as a result of the accident. The jury
awarded $13,983.85 for past medical expenses, and $4,500 in future medical
expenses. The jury awarded $1,000 respectively for past pain and suffering,
future pain and suffering, past loss of consortium, and future loss of
consortium.

Appellees moved for additur, arguing that the awards for
future medical expenses, past and future pain and suffering, and past and
future loss of consortium were inadequate in light of the unrebutted evidence
and were against the manifest weight of the evidence. Appellant responded that
additur would be improper since there was conflicting evidence, and the jury
could have reached its verdict in a manner consistent with the evidence. The
trial court entered an order granting additur or new trial. The order granted
an additur in the amount of $195,000 for future medical expenses, $100,000 for
past and future pain and suffering, and $100,000 for past and future loss of consortium.
Alternatively, the order granted a new trial if the additur was rejected.
Appellant rejected the additur, and appeals.

Section 768.043, Florida Statutes (2014), requires a trial
court, upon motion, to grant an additur if the amount awarded was “inadequate
in light of the facts and circumstances which were presented to the trier of
fact.” The statute sets out criteria that 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. If the party adversely
affected by an additur does not agree to the additur, the court must order a
new trial in the cause on the issue of damages only. § 768.043(1), Fla Stat.*

“Section 768.74 did not alter the ‘longstanding principles’
governing a trial court’s deference to a jury’s assessment of damages.” Aurbach
v. Gallina, 721 So. 2d 756, 758 (Fla. 4th DCA 1998) (citing Poole v.
Veterans Auto Sales & Leasing Co., Inc., 668 So. 2d 189, 191 (Fla.
1996)). “In deciding whether or not to grant a new trial, the trial judge
should not sit as a ‘seventh juror,’ thereby substituting his or her resolution
of the factual issues for that of the jury.” Poole, 668 So. 2d at 191.
Absent an abuse of discretion, an appellate court should not reverse an order
granting a new trial. Smith v. Brown, 525 So. 2d 868 (Fla. 1988).

In the present case, the trial court’s written order set
forth the basis for granting an additur by providing its findings as set forth
in the statutory criteria. The additur was subsequently refused, resulting in a
new trial as to damages. “We are unable to say, after viewing the evidence as a
whole, that reasonable men could not have concluded that the verdict . . . was
against the manifest weight of the evidence.” Smith, 525 So. 2d at 870.
Because the trial court’s conclusions are not unreasonable, its order granting
a new trial should be affirmed.

Appellant reasonably argues that the amounts of the jury’s
awards were supported by the evidence, and that the trial court erred in
“vetoing” the verdict by granting a motion for additur. However, this argument
ignores the Supreme Court’s analysis in Poole. While recognizing that
“the standard of review for an additur or remittitur based on section [768.74]
focuses on the reasonableness of the jury’s actions in light of the record,”
the Poole court concluded that the only issue before it was the
propriety of an order granting new trial, rather than the propriety of the
additur itself: “We know of no authority which would allow an appellate court
to even address the propriety of an additur . . . when the additur has been
refused.” Poole, 668 So. 2d at 191. Thus, even if we agreed with
appellant that the evidence supported the jury’s awards, that fact alone would
not provide a basis for reversal. See Van v. Schmidt, 122 So. 3d
243, 258 (Fla. 2013) (ruling that the district court erred “by simply
disagreeing with the trial court’s assessment of the facts and weighing of the
evidence and proceeding to analyze whether competent, substantial evidence
supported the jury’s verdict”).

Accordingly, we affirm the trial court’s order and remand
for a new trial on damages on those issues of future medical expenses, past and
future pain and suffering, and past and future loss of consortium. (LEWIS and
MAKAR, JJ., CONCUR.)

__________________

*While section 768.043 relates only to actions for damages
arising out of the operation of a motor vehicle, section 768.74 permits additur
and remittitur in any negligence action under the same requirements. Case law
construing section 768.74 applies equally to cases involving section 768.043.

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