RAYMOND COX AND PATTY COX, HIS WIFE, APPELLANTS/CROSS-APPELLEES,
v.
SHELLEY TRACTOR AND EQUIPMENT INC., A FLORIDA CORPORATION, AND R.O. CORPORATION, A FOREIGN CORPORATION, APPELLEES/CROSS-APPELLANTS
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The Florida District Court of Appeal reversed the trial court's order granting a new trial on damages based on an allegedly excessive jury verdict in a personal injury case, holding that the trial court's findings were unsupported by the record and that the jury properly considered loss of earning capacity even though the plaintiff was earning more post-accident.
The appellate court reversed the order granting a new trial on damages because the trial court's findings were unsupported by the record and contrary to law. Loss of earning capacity damages are based on diminishment of the capacity to labor and are not dependent on the plaintiff's earnings before or after the accident, so the jury properly could award such damages based on Cox's testimony even though he was earning more post-accident.
[1] An award for impairment of earning capacity is based upon the determination that the capacity to labor has been diminished as a result of the injuries sustained, and is n…
[2] Graphic descriptions of injuries, even if vivid, are not necessarily so inflammatory as to require a new trial when they are fair characterizations of the injuries sustai…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An award for impairment of earning capacity "is based upon the determination that the capacity to labor has been diminished as a result of the injuries sustained, and is not dependent upon the injured party's earn[ings] either prior to or following the accident."”
Establishes the legal standard that loss of earning capacity damages do not turn on actual earnings before or after the injury.
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Join FLexlaw to unlock all legal intelligenceRaymond Cox was injured in an accident and was unable to work for one year, suffering documented lost earnings of $20,000. Cox testified that he could…
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PER CURIAM.
We reverse the order entered by the trial court granting R.O. Corporation’s motion for remittitur or, in the alternative, motion for new trial as to damages. The trial court based its order upon the general findings that the verdict was excessive and tainted by jury bias, prejudice, sympathy, and other matters outside of the record. In support of this, the trial court specifically noted that: 1) Cox lost only one year of work due to the accident, 2) Cox is earning more now than prior to the accident, and 3) there was no testimony showing that Cox would be unable to continue in his present employment. The general findings are unsupported by the record and the specific findings are contrary to the law and facts.
The jury was instructed that it could consider loss of earning capacity, amongst other things, in assessing damages. An award for impairment of earning capacity “is based upon the determination that the capacity to labor has been diminished as a result of the injuries sustained, and is not dependent upon the injured party’s earn ings either prior to or following the accident.” Allstate Insurance Co. v. Shilling, 374 So. 2d 611, 613 (Fla. 4th DCA 1979).
Therefore, the jury could have awarded damages based upon Cox’s testimony that he is unable to work as he used to and that he needs the help of a journeyman to complete his work in a timely manner regardless of his present earnings. Cf. Long v. Publix Super Markets, Inc., 458 So. 2d 393 (Fla. 1st DCA 1984).
Furthermore, Cox presented conclusive evidence establishing that his lost earnings for the year away from work were $20,000.
Consequently, we reject the trial court’s specific findings as contrary to the law and facts of this case.
The' only portions of the record arguably supporting the trial court’s general findings that the verdict was excessive are the vivid references used by Cox’s expert witness and counsel in describing his injuries.
We find, however, that the characterizations of Cox’s foot as “crushed” and put together like a “shish kebab” were entirely fair, though graphic, and were not so inflammatory as to require a new trial. Cf. Daniels v. Weiss, 385 So. 2d 661 (Fla. 3d DCA 1980); Metropolitan Dade County v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974), cert. denied, 317 So. 2d 442 (Fla.1975).
Having determined that the trial court’s specific findings are improper and that there is no record support for its general findings, we reverse the order for remit-titur or a new trial on damages in the alternative. See Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla.1986); Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla.1978); Laskey v. Smith, 239 So. 2d 13 (Fla.1970). Cf. Prime Motor Inns, Inc. v. Wattman, 480 So. 2d 88 (Fla.1985) (where trial court cites no reasons for entry of new trial, appellate court required to relinquish jurisdiction to trial court for entry of specific grounds).
R.O. Corporation cross-appeals, contending that the trial court should have ordered a new trial on liability. Since we cannot say that the trial court’s determination in this regard was clearly erroneous, we affirm the order denying a new trial on liability. See Cedars of Lebanon Hospital Corp. v. Silva, 476 So. 2d 696 (Fla. 3d DCA 1985); see also Ashcroft, 392 So. 2d at 1312 n. 1.
Accordingly, we reverse the order granting remittitur or a new trial on damages in the alternative. Further, the trial court is directed to enter judgment in accordance with the jury verdict with interest thereon from the date the verdict was rendered. See Honda Motor Co. v. Marcus, 440 So. 2d 373 (Fla. 3d DCA 1983), review dismissed, 447 So. 2d 886 (Fla.1984). The judgment, in all other respects, is affirmed.
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Abelardo Vargas, M.D. v. Consuelo Dulzaides, 520 So. 2d 306 (Fla. 3d DCA 1988)…trial. While we agree with the Trust that a portion of counsel’s closing argument impermissibly alluded to matters not in evidence, the argument as a whole was not so inflammatory as to require a new trial. See Cox v. Shelley Tractor & Equip. Inc., 495 So. 2d 841 (Fla. 3d DCA 1986). We find that the majority of the argument had “some logical nexus in deduction or analogy to the evidence and the facts of the instant case.” Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892, 893 (Fla. 5th DCA 1982) (quoting…
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DAN & Sherman, M.D., P.A. v. Serrano, 578 So. 2d 300 (Fla. 3d DCA 1991)…Pisut v. Sichelman, 455 So. 2d 620 (Fla. 2d DCA 1984), citing Cates v. Graham, 427 So. 2d 290 (Fla. 3d DCA 1983) (the statute of repose begins to run on the last day of the treatment alleged in each count); Cox v. Shelley Tractor and Equipment Co., 495 So. 2d 841 (Fla. 3d DCA 1986) citing Allstate Insurance Co. v. Shilling, 374 So. 2d 611 (Fla. 3d DCA 1979) (an award for lost earning capacity not based on injured party’s earnings either prior to or following accident); Florida Greyhound Lines, Inc. v. Jones,…
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Carrier v. Onell Amor and Donna Amor, 517 So. 2d 24 (Fla. 3d DCA 1987)…PER CURIAM. Affirmed. See Planes v. Planes, 468 So. 2d 366 (Fla. 3d DCA 1985); Helman v. Seaboard Coast Line R.R., 349 So. 2d 1187 (Fla.1977); Cox v. Shelley Tractor & Equip. Inc., 495 So. 2d 841 (Fla. 3d DCA 1986); McHale v. Farm Bureau Mut. Ins. Co., 409 So. 2d 238 (Fla. 3d DCA 1982); Farley v. Gateway Ins. Co., 302 So. 2d 177 (Fla. 2d DCA 1974).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- The Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla. 1978)
- Laskey v. Smith, 239 So. 2d 13 (Fla. 1970)
- Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986)
- Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)
- Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985)
- Odie Bell Daniels v. Malcolm H. Weiss, M.D., 385 So. 2d 661 (Fla. 3d DCA 1980)
- Honda Motor Co., Ltd. v. Marcus, 440 So. 2d 373 (Fla. 3d DCA 1983)
- Cedars OF Lebanon Hosp. Corp. v. Orlando Silva, M.D., 476 So. 2d 696 (Fla. 3d DCA 1985)
- Martinez v. Tamayo, 374 So. 2d 611 (Fla. 3d DCA 1979)
- Allstate Ins. Co. v. Shilling, 374 So. 2d 611 (Fla. 4th DCA 1979)