ANTONIO FERRER, APPELLANT,
v.
ANA LA SERNA, APPELLEE

Fla. 4th DCA | 2015-11-25
No. 4D14-2475
DAMOORGÍAN and KLINGENSMITH, JJ, concur.
179 So. 3d 523 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 7 cases

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.

Synopsis

A Florida appellate court reversed a trial court's additur award in a motor vehicle negligence case, finding the court abused its discretion by awarding additional damages without providing written findings and when the evidence was conflicting rather than undisputed.


Holding

The trial court erred in awarding additur both procedurally—by failing to state findings in support of the award—and substantively, because the evidence was conflicting and the jury could have reached its verdict consistently with the evidence, making additur an abuse of discretion.


Headnotes

[1] A trial court must provide findings in support of an additur award.

[2] A trial court abuses its discretion by awarding additur when the evidence is conflicting and the jury could have reached its verdict consistent with the evidence.

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Key Quotes

“Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court.”

Establishes the high threshold required for an additur award

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Facts & Procedural History

Antonio Ferrer struck Ana La Serna's car at low speed. La Serna visited Dr. Epstein days later, who diagnosed her with neck injury, sprains, and aggra…

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Opinion of the Court
LEVINE, J.

LEVINE, J.

The issue in this case is whether the trial court erred in awarding additur. We find that the trial court erred in not providing its findings in support of additur. Furthermore, because the evidence was conflicting and the jury could have reached its verdict consistent with the evidence, we reverse with instruction to reinstate the jury verdict.

Antonio Ferrer struck Ana La Serna’s car at a low speed. Although she did not go see a doctor immediately, a few days later La Serna went to see her doctor, Dr. Epstein. Dr. Epstein found the accident had caused La Serna acute distress, a neck injury, sprains, and an aggravation to a preexisting back condition. Epstein also discovered La Serna suffered from a degenerative, spinal condition. Although the accident had not caused the condition, it had resulted in the condition becoming symptomatic.

Dr. Epstein recommended La Serna not get chiropractic back adjustments as they could aggravate her condition. Despite Dr. Epstein’s recommendation, La Serna received chiropractic back adjustments from Dr. Rodriguez on a regular basis, multiple times a week, for several months.

Nearly a year after the accident, La Serna started to feel a radiating pain in her forearm. Dr. Epstein thought the inflammation in her neck caused the radiating pain in her arm, but was unable to objectively correlate the accident to the radiating pain. Dr. Troiano, who was retained by the defense, also indicated there were no objective findings to support a connection between La Serna’s radiating pain and the car accident. Dr. Rodriguez, however, expressed “one hundred percent” certainty that the accident resulted La Serna’s symptoms.

La Serna sued Ferrer for motor vehicle negligence, seeking $11,695.31 for past and future medical expenses. The jury returned a verdict for La Serna and found she had suffered a permanent injury. The jury awarded her $8,000. in damages for past and future medical expenses.

La Serna moved for additur, arguing the evidence was undisputed and that she should be awarded an additur for $3,695.31, the difference between what she requested and what -the jury awarded. The trial court granted La Serna’s motion. However, its order contained neither an explanation for why additur was warranted nor an option for a new trial in lieu of additur. • ■■■

' On appeal, Ferrer argues the trial court erred when it failed to include in its order the justification for additur or the option for a new trial. Ferrer requests that this court conduct an independent review of the record to determine whether the facts of this case permit an additur award.

A trial court’s additur award is reversed only where there has been a clear abusé of discretion. Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998).

Pursuant to section 768.043, Florida Statutes, a trial court may grant additur if the court, determines the amount awarded was clearly inadequate. The statute sets forth the factors the court must.consider before awarding additur:

(a) Whether the-amount awarded is indicative of prejudice, passion, or corruption on, the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in *525reaching .the verdict or misconceived the merits of the case relating. to the amounts of damages recoverable.
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of- damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported-by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.043(2)(a)-(e), Fla. Stat.

Furthermore, when awarding-addi-tur, the trial court must provide its findings in support of the award. See Airstar, Inc. v. Gubbins, 668 So.2d 311, 312 (Fla. 4th DCA 1996). If the trial court fails to set forth its findings, ordinarily the appellate court will relinquish jurisdiction so the trial court can specify its grounds for awarding additur. Id. However, where it is apparent from-the record that awarding additur was an abuse-of discretion, we will reinstate the jury verdict. See id. at 312—13.

In the present case, the trial judge’s order did not set forth any findings in support of additur nor did it reference the statutory criteria. Although normally we would relinquish jurisdiction so the trial court could make the requisite findings, a review of the record leads us to conclude the trial court abused its discretion.

“Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court.” Aurbach, 721 So.2d at 768. Thus, where the “undisputed evidence” supports an award of damages and the jury fails to make such an award., the trial court must award additur. See Ortlieb v. Butts, 849 So.2d 1165, 1167 (Fla. 4th DCA 2003). But where the “evidence is conflicting and the jury-could have reached its verdict in a manner consistent with the evidence,” the trial court may not award additur. Id.

In Airstar, the evidence was in “sharp conflict” as to whether the plaintiff- suffered a-permanent, injury as-a result of a car accident. Airstar, 668 So.2d at 312-13. Although the jury returned a verdict finding the plaintiff had not suffered permanent injury, the trial court’ granted addi-tur. Upon examining the record, this court found the jury could have reached its verdict in a manner consistent with the evidence. Thus, to award additur, the trial court would have had to come to a conclusion contrary to the jury’s. “Mindful that a trial judge should not sit. as a seventh juror with veto power,” wé reinstated the verdict. Id. at 313.

In this case, the evidence was conflicting regarding whether the accident caused the radiating pain in La Serna’s arm. Of the doctors who testified, only the chiropractor, Dr. Rodriguez, was able to say with certainty that the accident caused La Serna’s symptoms. The other testimony was, at best, equivocal, because the doctors were unable to objectively establish the accident caused La Serna’s radiating pain. Furthermore, Dr. Epstein told La Serna that she should not get chiropractic neck adjustments because it could'aggravate her symptoms. La Serna nevertheless got her neck adjusted multiple times a week for several months.

Because the evidence was in conflict, the jury could have concluded, consistent with the evidence, that the costs associated with La Serna’s radiating pain were unrelated to the accident. See id. For the trial court to have granted additur, it would have had to come to the opposite conclusion and determined the accident caused La Serna’s radiating pain. Id. Therefore, *526because the “undisputed evidence” did not support an award of additur, we remand to the trial court with instruction to reinstate the jury’s' verdict. See Ortlieb, 849 So.2d at 1167.

In summary, we hold the'trial court erred when it' did not state its findings in support of additur in the record. We further hold 'the' trial court abused its discretion in awarding additur because the record does not' support the award.1

Reversed and remanded.

DAMOORGÍAN and KLINGENSMITH, JJ, concur.


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Citator

Cited By

  • Pogue v. Garib, 254 So. 3d 503 (Fla. 4th DCA 2018)
    …ction on pain and suffering damages. 4 accordance with the law and consistent with the manifest weight of the evidence. A trial court’s order on a motion for additur or new trial is reviewed for an abuse of discretion. Ferrer v. Serna, 179 So. 3d 523, 524 (Fla. 4th DCA 2015). However, a successor judge is not accorded the same deference. Wohlfiel v. Morris, 122 So. 2d 235, 237 (Fla. 2d DCA 1960). This is because a successor judge must rely on the written record alone, having not witnessed…
  • …t failure to object to the submission of the jury instructions or the verdict form constituted a waiver and invited error). Accordingly, we reverse the order granting additur and remand for reinstatement of the jury’s verdict. See Ferrer v. Serna, 179 So. 3d 523, 525 (Fla. 4th DCA 2015) (“[W]here it is apparent from the record that awarding additur was an abuse of discretion, we will reinstate the jury verdict.”). Affirmed in part, reversed in part, and remanded with instructions. FORST and ARTAU, JJ., c…
  • Italia Dixon v. World Fiber Techs., Inc., 49 Fla. L. Weekly D1045 (Fla. 3d DCA 2024)
    …ew trial is reviewed for abuse of discretion, and ‘[t]rial court rulings on motions for new trial are given great deference on appeal.’”) (quoting Pena v. Vectour of Fla., Inc., 30 So. 3d 691, 692 (Fla. 1st DCA 2010)). See also Ferrer v. La Serna, 179 So. 3d 523, 524 (Fla. 4th DCA 2015) (“A trial court’s additur award is reversed only where there has been a clear abuse of discretion.”); Pogue v. Garib, 254 So. 3d 503, 507 (Fla. 4th DCA 2018) (“The trial court may not award an additur ‘where the evidence is…

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