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Antonio Ferrer v. Ana La Serna, Case No. 4D14-2475 (4th DCA)

In Ferrer, the Fourth District considered whether the trial court erred in awarding additur following a jury trial in an automobile accident case. The case arose following the defendant’s vehicle striking the plaintiff’s car at a low speed. The plaintiff later sought medical care, and chiropractic treatment against medical advice, because it risked aggravating the plaintiff’s condition. The plaintiff’s condition later worsened, but there was conflicting evidence as to whether the symptoms that developed resulted from the accident. During trial, the plaintiff sought $11,695.31 for past and future medical expenses. The jury returned a verdict awarding the plaintiff $8,000.00 for past and future medical expenses and finding a permanent injury. The plaintiff sought an additur for $3,695.31, which the trial court granted. The trial court did not include in its order an explanation for why additur was warranted nor did it mention an option for a new trial in lieu of additur.

The Fourth District explained that a trial court’s additur award is reversed only where there has been a clear abuse of discretion. 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 various facts the court must consider before awarding additur. “Furthermore, when awarding additur, the trial court must provide its findings in support of the award.” If the trial court fails to set forth its findings, the appellate courts typically relinquish jurisdiction so the trial court can specify its grounds for awarding additur. “However, where it is apparent from the record that awarding additur was an abuse of discretion,” the appellate court will reinstate the jury verdict.

Here, the trial court did not include any findings in support of additur, nor did it reference the statutory criteria. The Fourth District also found though that the trial court abused its discretion in awarding additur. “Additur is an appropriate remedy only where a damage award is so inadequate as to shock the conscience of the court.” “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.” Where the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, however, the trial court may not award additur. The Fourth District found that the evidence in this case was conflicting regarding whether the accident caused the radiating pain in the plaintiff’s arm. Here, the undisputed evidence did not support an award of additur, and therefore, the Fourth District remanded with instruction to reinstate the jury’s verdict.

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