ROBERT GLENN LOFLEY AND DORIS LOFLEY, HIS WIFE, APPELLANTS,
v.
INSULTECH, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 2d DCA | 1988-06-24
Nos. 87-865, 87-1187
HALL and THREADGILL, JJ., concur.
527 So. 2d 902 Florida District Court of Appeal, Second District (1988) Positive Treatment
Cited by 14 cases

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Holding

The court held that while the jury's verdict for the husband's personal injury damages was supported by substantial evidence, the wife was entitled to a new trial on her loss of consortium claim because her testimony regarding the marital impact was largely uncontradicted and the jury could not rationally conclude she suffered no damage.


Headnotes

[1] Substantial, competent evidence is sufficient to sustain a jury's verdict, requiring appellate affirmation.

[2] A new trial on loss of consortium damages may be granted when the claimant's testimony regarding the accident's impact on the marital life is substantial, undisputed, and…

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Facts & Procedural History

A pipefitter sued his employer after a power drill allegedly fell on his head. The jury awarded him personal injury damages, but awarded his wife zero…

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Opinion of the Court
SCHEB, Acting Chief Judge.

SCHEB, Acting Chief Judge.

Glenn and Doris Lofley, plaintiffs below, appeal final judgments entered after a jury trial against defendant Insultech, Inc., awarding Glenn Lofley $16,814.24 and awarding Doris Lofley zero dollars on her derivative suit for loss of consortium and services. The Lofleys moved for a new trial on Mr. Lofley’s personal injury damages and Mrs. Lofley’s loss of consortium damages. The trial judge denied these motions in two separate orders which, for purposes of this appeal, we have consolidated. We affirm the judgment in favor of Mr. Lofley and the order denying his motion for a new trial. We reverse the judgment on Mrs. Lofley’s derivative suit and remand for a new trial solely on the issue of her damages.

At trial, Mr. Lofley sought damages for personal injuries received when a power drill allegedly fell on his head while he was working as a pipefitter for Insultech at its building site. Although there were no witnesses who actually saw the drill hit Mr. Lofley and even he was not sure what had happened, an Insultech employee admitted he dropped the drill and that immediately afterwards he heard Mr. Lofley, working beneath him, exclaim, “Ow!”

There was conflicting evidence as to both the liability aspects of Mr. Lofley’s claim and the extent of damages he sustained. Nevertheless, there is substantial, competent evidence to sustain the jury’s verdict and it is, therefore, our duty to affirm. Griffis v. Hill, 230 So. 2d 143 (Fla.1970). Accordingly, we find no abuse of discretion on the part of the trial judge in denying Mr. Lofley’s motion for a new trial.

We find merit, however, in Mrs. Lofley’s contention that she is entitled to a new trial on her loss of consortium claim. Three cases from this court are analogous: Butte v. Hughes, 521 So. 2d 280 (Fla. 2d DCA 1988); Albritton v. State Farm Mutual Automobile Insurance Co., 382 So. 2d 1267 (Fla. 2d DCA 1980); and Webber v. Jordan, 366 So. 2d 51 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 102 (Fla.1979). As we stated in Albritton, the test for granting a new trial to the spouse that was awarded “zero” damages is whether testimony establishing the substantial impact the accident had on the marital life of the couple is “substantial,” “undisputed,” and “unrebut-ted.” In all three cases, we ordered a new trial because we considered the spouse’s testimony substantial and unrebutted.

Therefore, the question is whether Mrs. Lofley’s account of the Lofleys’ drastically changed homelife as a result of the accident was contradicted. We find that essentially it was not. The evidence revealed that at the time of the accident the Lofleys had been married 25 years, and while not free from normal problems, the marriage had been a good, solid one with no prior separations. The Lofleys had enjoyed a “very healthy” sex life and produced two children. Mr. Lofley had been a capable provider of services to the household, an interested and involved father, and an attentive husband. Mrs. Lofley testified that before the accident Mr. Lofley was “great. He was my friend, lover, [and] husband.”

Mrs. Lofley explained that the severe personality changes the accident caused in her husband made her “miserable,” even to the point of considering suicide. After the accident, Mr. Lofley could no longer provide household services such as mowing the yard. It was undisputed that Mr. Lof-ley’s personality change caused his formerly close relationship with his son to deteriorate and upset and alienated his daughter to the point that she moved out of the house. After the accident, the Lofleys were unable to have consummated sexual relations. The deteriorating home situation caused Mrs. Lofley to leave her husband five or six times and threaten divorce on several occasions. Mrs. Lofley testified that despite her misery, she still loved her husband and would stick by him.

The drastic decline in the quality of family life due to Mr. Lofley’s injuries was corroborated by each family member (husband, wife, and son) who testified. Doctors’ accounts of the family members’ statements were consistent throughout the eighteen-month period between accident and trial. Further, there was expert testimony that such marital discord, divorce, and family problems are characteristic of the injury Mr. Lofley allegedly suffered as a result of the accident. To counter the evidence on behalf of Mrs. Lofley, Insultech elicited testimony from a clinical psychologist who was not Mr. Lofley’s regular therapist and only briefly examined him for purposes of litigation. The clinical psychologist, Dr. Ball, testified that Mr. Lofley’s mild, pre-exist-ing personality disorder had caused emotional problems which he thought probably had affected his family life even before the accident. He opined that the stressful condition in the home was contributing to his poor progress in rehabilitation.

As we stated in Albritton, the spouse seeking consortium damages must present competent testimony concerning the impact which the accident had on the marital relationship. We believe Mrs. Lofley presented the competent testimony required.

To sustain the trial court’s denial of Mrs. Lofley’s motion for new trial, Insultech relies on a line of cases in which we approved a “zero” award for a consortium claim. We think its reliance is misplaced. These cases do not require a new trial if there is no evidence upon which a jury could have awarded the spouse derivitive damages or where there is evidence to support a finding that the spouse was not damaged. See, Tieche v. Panlener, 504 So. 2d 49 (Fla. 2d DCA 1987); Hagens v. Hilston, 388 So. 2d 1379 (Fla. 2d DCA 1980). Although Insultech presented some evidence in mitigation of Mrs. Lofley’s loss of consortium, the main thrust of its case at trial concerned the impact the pre-existing seizure condition had on Mr. Lofley’s personal injury damages. There is no evidence on which a reasonable jury could rationally conclude that Mrs. Lofley suffered no damage at all. Therefore, she is entitled to receive at least nominal damages. Albritton; see also, Butte v. Hughes.

Affirmed in part, reversed in part, and remanded for a new trial on Mrs. Lofley’s claim for damages.

HALL and THREADGILL, JJ., concur.


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Citator

Cited By

  • McCLOUD v. Sherman Mobile Concrete Co., Inc., 579 So. 2d 773 (Fla. 2d DCA 1991)
    …e injuries,1 and that he lost wages and suffered pain from them. The jury verdict was, accordingly, inadequate, and we must reverse for a new trial on the issue of Mr. McCloud’s damages and Mrs. McCloud’s consortium claim. Lofley v. Insultech, Inc., 527 So. 2d 902 (Fla. 2d DCA 1988); Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984); Hector v. Florida Farm Bureau Mut. Ins. Co., 364 So. 2d 1253 (Fla. 2d DCA 1978). Reversed and remanded for a new trial on the issue of damages. SCHEB and THREADGILL, JJ.,…
  • Smith v. Houston, 551 So. 2d 551 (Fla. 2d DCA 1989)
    …sses testified that following the accident, Mrs. Smith had undergone a personality change, was cross, needed help with her housework and yardwork, failed to keep a clean house, and exhibited no patience with Mr. Smith. In Lofley v. Insultech, Inc., 527 So. 2d 902 (Fla. 2d DCA 1988), this court presented an overview of cases involving denial of a new trial on a loss of consortium claim. Lofley and the cases cited therein hold that where damages are awarded to the injured spouse and a loss of consortium claim…
  • Fleming v. Albertson's, Inc., 535 So. 2d 682 (Fla. 1st DCA 1988)
    …spouse presents evidence that is substantial, undisputed, and unrebutted concerning the impact the injury had on the marital relationship, such spouse is entitled to receive at least nominal damages for loss of consortium. Lofley v. Insultech, Inc., 527 So. 2d 902 (Fla. 2d DCA 1988); Albritton v. State Farm Mutual Automobile Ins. Co., 382 So. 2d 1267 (Fla. 2d DCA 1980); Shaw v. Peterson, 376 So. 2d 433 (Fla. 1st DCA 1979). In view of the substantial injuries to Mr. Fleming and the resulting disability and the…

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