Additur in Florida Auto Accident Cases – Ferrer v. Serna

Under certain circumstances, a trial court has the power to increase the damages awarded by a jury under the principle of additur. Federal courts do not allow an additur, but Florida state law does. Pursuant to § 768.043, Florida Statutes, the court shall, upon proper motion, grant an additur if it determines the award was clearly inadequate. The court must consider the following factors: whether the award indicates “prejudice, passion, or corruption” of the jury; “whether it clearly appears” the jury ignored evidence or misconceived the merits of the case regarding damages; whether the award is reasonably related to the proven damages and injury; and whether the award is supported by evidence and “could be adduced in a logical manner by reasonable persons.” If the affected party does not agree to the additur, the court must order a new trial on damages.

Florida case law has added a requirement that the trial court provide findings to support the additur. Generally, if a trial court fails to do so, the appellate court will send the case back to allow the trial court to state its findings, but the appeals court may reinstate the jury verdict if it finds an abuse of discretion.

The Fourth District recently reviewed the appropriateness of an additur in the case of Ferrer v. Serna. The case arose from a low-speed car accident. The plaintiff did not seek treatment on the day of the accident but did see her doctor within a few days. Dr. Epstein found that the plaintiff suffered from a neck injury, sprains, and an aggravated pre-existing back condition as the result of the accident. He also found that she had a degenerative spinal condition that became symptomatic as a result of the accident. Although Dr. Epstein recommended that she not seek back adjustments from a chiropractor, the plaintiff did receive such adjustments from Dr. Rodriguez multiple times per week for several months.

The plaintiff began having radiating pain in her arm almost a year after the accident. Dr. Epstein thought it might be caused by the inflammation in her neck, but he could not find objective evidence to prove it. The defense’s doctor, Dr. Troiano, also found no objective evidence to support a correlation between the plaintiff’s arm pain and the accident. Dr. Rodriguez stated that he was “100 percent” certain that the accident caused the pain.

The plaintiff filed a negligence action against the other driver for $11,695.31 in past and future medical expenses. The jury found that the plaintiff had suffered a permanent injury, but it awarded only $8,000 in past and future medical expenses. The plaintiff moved for an additur of the difference between the amount of the award and the amount she had sought. The trial court granted the motion with an order that did not include the reasons for the additur, nor an option for a new trial if the defendant objected to the additur. The defendant appealed.

Here, the trial court’s order provided no findings and no reference to the statutory requirements. The appeals court noted that an additur is appropriate only when the damages awarded by the jury “shock the conscience….” When there is conflicting evidence, and the jury could have arrived at its award in a manner that is consistent with that evidence, an additur is not appropriate.

The district court found that there was conflicting evidence as to whether the radiating pain was caused by the accident. Only the chiropractor stated with certainty that it was. Additionally, the plaintiff’s doctor had advised her against receiving chiropractic adjustments out of concern that it would aggravate her symptoms, but she received the adjustments against his advice.

In light of the conflicting evidence, it would not be inconsistent with the evidence for the jury to find that the costs related to the radiating pain were not the result of the accident. There was no undisputed evidence that supported the additur. The district court found that the trial court erred in failing to state its findings and abused its discretion in awarding the additur. The district court remanded to the trial court to reinstate the jury verdict. Florida law allows the court to increase or reduce a jury award, but the court cannot do so simply because it disagrees with the jury’s findings. The court must consider the factors set out in the statute and determine that the award was clearly inadequate or clearly excessive.

If you have been injured in an automobile accident, an experienced South Florida car accident attorney can help you evaluate your damages. Call Anidjar & Levine at (800) 747-3733, or submit an online contact form.

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