ROBERT HOROWITZ, APPELLANT,
v.
FLORIDA INSURANCE GUARANTY ASSOCIATION, APPELLEE
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In this personal injury case arising from an auto-pedestrian collision, the court affirmed the jury's apportionment of negligence (95% plaintiff, 5% defendant) but reversed and remanded for a new trial on damages, finding the jury's award of $4,593 was grossly against the manifest weight of evidence when the evidence showed total documented losses of $52,213 plus unaccounted claims for permanent disability and pain and suffering.
The court upheld the jury's apportionment of negligence but reversed and remanded for a new trial limited to the damages issue, finding the damages award was grossly against the manifest weight of evidence as a matter of law.
[1] A jury's apportionment of negligence will be upheld if it is supported by the evidence.
[2] A damages award is grossly against the manifest weight of the evidence when it fails to account for undisputed permanent disability and pain and suffering.
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Join FLexlaw to unlock all legal intelligence“In our opinion the award of damages was grossly against the manifest weight of evidence, as a matter of law, with the result that the judgment must be reversed and the cause remanded for a new trial limited solely to the issue of the amount of damages suffered by the plaintiff.”
States the legal standard and the court's holding on the damages issue
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Join FLexlaw to unlock all legal intelligencePlaintiff was injured in an auto-pedestrian collision. The jury found total damages of $4,593, with plaintiff 95% negligent and defendant 5% negligent…
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PER CURIAM.
This is a personal injury action arising out of an auto-pedestrian collision.
The jury returned a verdict for Plaintiff finding that the total amount of his damage was $4,593.00. It further found that the Plaintiff was 95% negligent and defendant was 5% negligent. Under this scenario, Plaintiff would have a net recovery of $229.65.
Under the facts of the case we find no error with reference to the jury’s apportionment of negligence.
We find reversible error with reference to the amount of damages suffered by plaintiff.
The damages proofs indicated that the total medical expense, future medical expense and lost wages was $52,213.00 (It is interesting to note that the award of $4,593.00 was precisely one half of the plaintiff’s unpaid medical expenses.) The mentioned award takes no account of his claim for damages for his permanent disability,1 plus pain and suffering, etc.
In our opinion the award of damages was grossly against the manifest weight of evi dence, as a matter of law, with the result that the judgment must be reversed and the cause remanded for a new trial limited solely to the issue of the amount of damages suffered by the plaintiff. We do this upon authority of Shelly v. Hartford Cas. Ins. Co., 445 So. 2d 415 (Fla. 4th DCA 1984). See also Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971); Anderson v. Chirogianis, 884 So. 2d 1289 (Fla. 5th DCA 1980); Stevens v. Mount Vernon Fire Ins. Co., 395 So. 2d 1206 (Fla. 3d DCA 1981); State Farm Mutual Automobile Insurance Company v. Howard, 458 So. 2d 874 (Fla. 2d DCA 1984); Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984); Blanford v. Polk County, 410 So. 2d 667 (Fla. 2d DCA 1982); Grier v. Reed, 426 So. 2d 1132 (Fla. 1st DCA 1983); Hector v. Florida Farm Bureau Mutual Ins. Co., 364 So. 2d 1253 (Fla. 1st DCA 1978).
REVERSED AND REMANDED for a new trial upon the issue of damages.
DELL, WALDEN and POLEN, JJ., concur. . It was undisputed that the plaintiff suffered a permanent disability. The plaintiffs treating physicians testified that the plaintiff suffered a 10% permanent disability to the body as a whole while the defense expert rated the disability at 4% to the body as a whole.
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Mason v. The Dist. Bd. OF Trs. OF Broward Cmty. Coll., 644 So. 2d 160 (Fla. 4th DCA 1994)…that in those cases, the permanent injury was proven, or uncontroverted evidence of a permanent injury was presented to the trier of fact. See Watson v. Builders Square, Inc., 563 So. 2d 721 (Fla. 4th DCA 1990); Horowitz v. Florida Ins. Guar. Ass’n, 544 So. 2d 281 (Fla. 4th DCA 1989); Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984); Skelly v. Hartford Casualty Ins. Co., 445 So. 2d 415 (Fla. 4th DCA 1984); and Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971).…
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Rose Marie Hall and next friend of Lisa Marie Hall v. City OF Hialeah, 551 So. 2d 1281 (Fla. 3d DCA 1989)…t erred, Stevens v. Mount Vernon Fire Ins. Co., 395 So. 2d 1206 (Fla. 3d DCA 1981); Pickel v. Rosen, 214 So. 2d 730 (Fla. 3d DCA 1968); Goff v. 392208 Ontario, Ltd., 539 So. 2d 1158 (Fla. 3d DCA 1989); see also Horowitz v. Florida Ins. Guar. Assoc., 544 So. 2d 281 (Fla. 4th DCA 1989); Gonzalez v. Westinghouse Elec. Corp., 463 So. 2d 1229 (Fla. 4th DCA 1985); Skelly v. Hartford Casualty Ins. Co., 445 So. 2d 415 (Fla. 4th DCA 1984), we reverse and remand for a new trial on the issue of past and future non-econo…
Authorities Cited
- Rodriguez v. Allgreen Corp., 242 So. 2d 741 (Fla. 4th DCA 1971)
- Thornburg v. Pursell, 446 So. 2d 713 (Fla. 2d DCA 1984)
- Skelly v. Hartford Cas. Ins. Co. & Publix Super Mkts., Inc., 445 So. 2d 415 (Fla. 4th DCA 1984)
- Blanford v. Polk Cnty., 410 So. 2d 667 (Fla. 2d DCA 1982)
- Stevens v. Mount Vernon Fire Ins. Co. & Sayed George Deeb, 395 So. 2d 1206 (Fla. 3d DCA 1981)
- Spriggs v. State, 364 So. 2d 1253 (Fla. 2d DCA 1978)
- State Farm Mut. Auto. Ins. Co. & John E. Wilkerson v. Howard, 458 So. 2d 874 (Fla. 2d DCA 1984)
- Grier v. Reed, 426 So. 2d 1132 (Fla. 1st DCA 1983)