HARRY A. GAINES, APPELLANT,
v.
AMERISURE INSURANCE COMPANY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Harry Gaines prevailed in a personal injury action against his insurer on an uninsured motorist claim, but the jury awarded him nothing for past pain and suffering despite finding permanent injury. The appellate court reversed and remanded for a new trial on past pain and suffering damages only, finding the jury verdict on that issue inadequate as a matter of law.
The court held that the verdict as to past pain and suffering damages was inadequate as a matter of law and reversed for a new trial limited to that issue. The court affirmed the jury's awards for future economic damages and future pain and suffering damages.
[1] A jury verdict awarding zero damages for past pain and suffering is inadequate as a matter of law when there is undisputed evidence of physical impairment and aggravation…
[2] A new trial may be limited to the issue of past pain and suffering damages when the jury's awards for future economic and future pain and suffering damages are not challe…
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“Because there is undisputed evidence in the record that Gaines suffered some physical impairment and aggravation of his preexisting shoulder injury as a result of the accident, we agree that the verdict as to past pain and suffering damages is inadequate and reverse for a new trial on that issue only.”
The court's holding that the jury verdict on past pain and suffering was inadequate as a matter of law based on undisputed evidence of injury.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGaines was injured in an accident involving an uninsured motorist and filed a claim against Amerisure Insurance. Undisputed evidence showed he suffere…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Future Economic Damages cases and more on FLexlaw
NESBITT, Judge.
Harry A. Gaines, plaintiff below, prevailed against his insurer, Amerisure Insur- anee Company (Amerisure) in a personal injury action arising on an uninsured motorist claim. He now challenges the jury award, alleging it was inadequate as a matter of law because although the jury found that he had sustained permanent injury, it awarded him nothing for past pain and suffering damages. Because there is undisputed evidence in the record that Gaines suffered some physical impairment and aggravation of his preexisting shoulder injury as a result of the accident1, we agree that the verdict as to past pain and suffering damages is inadequate and reverse for a new trial on that issue only. As there is no complaint about the adequacy of the jury’s awards as to future economic (medical) damages and future pain and suffering damages, those awards shall not be retried. If the same trial judge who presided over the original trial is available, that judge may entertain a motion for additur, as an alternative approach to satisfying the award of a new trial.
We reject Gaines’s other point on appeal, which was that Amerisure’s trial counsel made improper comments during closing argument. With the exception of one objection by Gaines early in Amerisure’s closing, which was sustained, Gaines failed to object to any of the comments he now seeks to challenge. Thus, Gaines did not preserve the issue for appeal. In any case, we find that defense counsel’s comments were not so prejudicial and inflammatory as to constitute fundamental error. See Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 587 (Fla. 2d DCA 1996); Metropolitan Dade County v. Dillon, 305 So. 2d 36, 40 (Fla. 3d DCA 1974).
Because we reverse for a new trial on the issue of past pain and suffering damages, the appeal assessing attorney fees against Gaines is likewise reversed.
For the foregoing reasons, the judgment under review is affirmed in part, reversed in on the part, and remanded for a new trial sole issue of past pain and suffering.
. It seems clear in the record that Gaines's preexisting shoulder problems were exacerbated by the accident and that at least some of Gaines’s current shoulder problems were caused by the accident — i.e., there was testimony that Gaines was no longer able to do push-ups. Further, there was expert testimony that the injury incurred in the accident accelerated the arthritic degeneration of Gaines's shoulder.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Dolphin Cruise Line, Inc. v. Stylianos Stassinopoulos, 731 So. 2d 708 (Fla. 3d DCA 1999)…substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law. See id. at 193; see also Gaines v. Amerisure Ins. Co., 701 So. 2d 1192, 1193 (Fla. 3d DCA 1997); Ochlockonee Banks Restaurant, Inc. v. Colvin, 700 So. 2d 1229, 1230 (Fla. 1st DCA 1997); Een v. Rice, 637 So. 2d 331, 332-33 (Fla. 2d DCA 1994); Daigneault v. Gache, 624 So. 2d 818, 820 (Fla. 4th DCA 1993); Harrison v. Hous…
-
Cabrera v. Wal-Mart Stores E., LP, 314 So. 3d 570 (Fla. 3d DCA 2020)
-
Wal-Mart Stores, Inc. v. Gutierrez, 731 So. 2d 151 (Fla. 3d DCA 1999)…ff’s counsel during closing argument. We affirm. A review of the record shows that defense counsel failed to object to the majority of the allegedly improper comments, thereby not preserving them for appellate review. Gaines v. Amerisure Ins. Co., 701 So. 2d 1192, 1193 (Fla. 3d DCA 1997); Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319, 1322 (Fla. 3d DCA 1983). Further, the remarks were not so prejudicial or inflammatory as to consti [*152] tute fundamental error. Gaines, 701 So. 2d at 1193; Jackson, 433 So.…
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
- Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)
- Metro. Dade Cnty. v. Dillon, 305 So. 2d 36 (Fla. 3d DCA 1974)