CAROLYN CASSANDRA BURGESS, APPELLANT/CROSS-APPELLEE,
v.
MID-FLORIDA SERVICE, A FLORIDA CORPORATION, AND DENNIS LAMAR DEVOSE, APPELLEES/CROSS-APPELLANTS
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In this personal injury case, the trial court granted a new trial because the jury failed to reduce future economic damages to present value on the verdict form. The appellate court reverses, holding that the jury's computational error was not fundamental and was waived by the defendants' failure to object before jury discharge.
The jury's computational error in calculating present value of future damages is not fundamental error and is waived by the defendants' failure to timely object before jury discharge. The error does not go to the foundation of the case or the merits of the cause of action. Additionally, a present value figure equal to or greater than future damages can be consistent with a legitimate 'total offset' calculation presuming future inflation will offset investment returns.
[1] A party waives the right to object to a jury's calculation error in a verdict if the objection is not raised before the jury is discharged.
[2] A jury's failure to reduce future economic damages to present value is not a fundamental error that can be raised for the first time after the jury is discharged.
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Join FLexlaw to unlock all legal intelligence“Nevertheless, a defense objection could and should have been raised before the discharge of the jury. The record reflects no justification for their failure to do so.”
Establishes that defendants waived any error by failing to timely object to the verdict before jury discharge
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Join FLexlaw to unlock all legal intelligenceBurgess won a personal injury verdict. The jury awarded $30,500 for past medical expenses and lost earnings, $156,000 in total future damages, but the…
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STONE, Judge.
The plaintiff appeals an order granting a new trial on a portion of the damages awarded in this personal injury action. All issues arise out of the apparent jury failure to reduce future economic losses to present money value. The jury’s error on the verdict form is patent; however, the defendants raised no objection to the verdict prior to the discharge of the jury. We reverse. See, e.g., Mooreman v. Am. Safety Equip., 594 So. 2d 795 (Fla. 4th DCA 1992); Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981); Sweet Paper Sales Corp. v. Feldman, 603 So. 2d 109 (Fla. 3d DCA 1992). See also Department of Agric. & Consumer Serv. Div. of Animal Indus, v. Denmark, 366 So. 2d 469 (Fla. 4th DCA 1979); Lindquist v. Covert, 279 So. 2d 44 (Fla. 4th DCA 1973).
The verdict provided:
2. What is the amount of any damages sustained for medical expenses and lost earnings or earning ability in-the past? $30,500
3. What is the amount of any future damages for medical expenses and lost earning ability to be sustained in future years?
a. Total damages over future years? $156,000
* * * * * *
c. What is the present value of those future damages? $186,500 4. What is the amount of any damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect, or loss of capacity for the enjoyment of life.
a. in the past? $25,138
b. in the future? $120,000
TOTAL DAMAGES OF CAROLYN BURGESS
(ADD LINES 2, 3c, 4a AND 4b) $362,133
The trial court recognized that the verdict reflects the jury's failure to reduce the future expenses and lost income to its present value in the space provided on the verdict form. Rather, the jury increased the future economic damage figure by adding the past expenses to the future expenses in arriving at the figure inserted, a patent mistake. Also, the total award apparently includes a double computation of the $30,500 awarded for past expenses and losses.
Nevertheless, a defense objection could and should have been raised before the discharge of the jury. The record reflects no justification for their failure to do so. Likewise, the defense presented neither evidence nor argument to the jury concerning a reduction. It is undisputed that the trial court properly charged the jury on the subject.
The record shows that the trial court reluctantly granted the new trial, concluding such an error must be considered fundamental as inconsistent with the instructions. We conclude, however, that such an error is not fundamental and is waived by the failure to timely raise it. The jury’s mistaken calculation here of the one element of damages goes neither to the foundation of the case nor the merits of the cause of action. See Sanford v. Rubin, 237 So. 2d 134 (Fla.1970).
Additionally, even if a fundamental error analysis were appropriate, we note that a jury’s failure to arrive at a present value calculation that is smaller than the future economic damages awarded does not necessarily prove a failure to follow the court’s instructions. Such a figure is consistent with an intentional determination that the present value is equal to future damages by application of a “total offset” calculation. In Delta Airlines Inc. v. Ageloff 552 So. 2d 1089 (Fla.1989), the supreme court recognized such a method of calculation by which future inflation is presumed to offset any future return on a present investment. See also Plazza v. Patio Concrete Inc., 567 So. 2d 908 (Fla. 2d DCA 1990), rev. denied, 577 So. 2d 1328 (Fla.1991).
Appellees argue that this court in Howell v. Woods, 489 So. 2d 154 (Fla. 4th DCA 1986) determined that a jury’s mistake in computing future damages is fundamental error. There, the jury’s failure to reduce future damages to present value was recognized as a factor for considering the court’s failure to give the appropriate instruction as fundamental error. Clearly, the Howell court did not indicate that a jury’s failure to reduce future damages to present value in and of itself was to be regarded as fundamental error. Such an interpretation would result in an automatic right to a new trial notwithstanding a party’s obligation to timely object to a verdict error so that it might be corrected by the jury. We therefore consider Howell to be inapposite.
Additionally, on remand the trial court is authorized to modify the judgment to conform to the jury’s intention by reducing the judgment by $30,500 as this sum was obviously included twice. See Cory v. Greyhound Lines, Inc., 257 So. 2d 36 (Fla.1971).
FARMER, J., concurs.
DOWNEY, J., concurs specially with opinion.
DOWNEY, Judge,
concurring specially:
I agree with the majority that appellees’ failure to object to the verdict prior to discharge of the jury waives the defect. As to the remainder of the opinion, I agree with the result only.
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Delva v. Value Rent-A-Car, 693 So. 2d 574 (Fla. 3d DCA 1997)…ired to adjust the verdicts actually returned to reflect their lawful intention. See Cory v. Greyhound Lines, Inc., 257 So. 2d 36 (Fla.1971); Baker Protective Servs. Inc. v. FP, Inc., 643 So. 2d 1099 (Fla. 3d DCA 1994); Burgess v. Mid-Florida Serv., 609 So. 2d 637 (Fla. 4th DCA 1992); Balsera v. A.B.D.M & P. Corp., 511 So. 2d 679 (Fla. 3d DCA 1987), review denied, 519 So. 2d 986 (Fla.1987); Phillips v. Ostrer, 481 So. 2d 1241 (Fla. 3d DCA 1985), review denied, 492 So. 2d 1334 (Fla.1986). The manner in which t…
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Nava Hendelman v. Lion Country Safari, Inc., 609 So. 2d 766 (Fla. 4th DCA 1992)…rt has consistently held that a par [*767] ty’s failure to object or otherwise inform the court of an inconsistent verdict before the jury is dismissed waives the inconsistency in the verdict as a point on appeal. See Burgess v. Mid-Florida Service, 609 So. 2d 637 (Fla. 4th DCA 1992); Moorman v. Am. Safety Equip., 594 So. 2d 795 (Fla. 4th DCA1992); Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981); Undquist v. Covert, 279 So. 2d 44 (Fla. 4th DCA1973). See also Southeastern Income Properties v. Terrell, 58…
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C.G. Chase Constr. Co. v. Ada Beatriz Hernandez Colon, 725 So. 2d 1144 (Fla. 3d DCA 1998)…va, 693 So. 2d at 574 (requiring the trial court to adjust the verdict where the defect could have been cured by transposing the amount awarded for future medical expenses with the award for future non-economic losses); Burgess v. Mid-Florida Serv., 609 So. 2d 637 (Fla. 4th DCA 1992) (requiring the trial court to adjust the verdict where the jury failed to reduce the future expenses and lost income to its present value and, instead, increased the future economic damages by adding past expenses to future expen…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)
- Moorman v. Am. Safety Equip., 594 So. 2d 795 (Fla. 4th DCA 1992)
- Cory v. Greyhound Lines, Inc., 257 So. 2d 36 (Fla. 1971)
- Robbins v. Graham, 404 So. 2d 769 (Fla. 4th DCA 1981)
- Lindquist v. Emy Lou Covert and Allyn Richard Myers, 279 So. 2d 44 (Fla. 4th DCA 1973)
- DELTA AIR Lines, Inc. v. Ageloff, 552 So. 2d 1089 (Fla. 1989)
- Sweet Paper Sales Corp. v. Feldman, 603 So. 2d 109 (Fla. 3d DCA 1992)
- Howell v. Bennie Woods, 489 So. 2d 154 (Fla. 4th DCA 1986)
- State v. Denmark, 366 So. 2d 469 (Fla. 4th DCA 1979)
- Benedetto Plazza v. Patio Concrete, Inc., 567 So. 2d 908 (Fla. 2d DCA 1990)