Delva v. Value Rent-A-Car

693 So. 2d 574, 1997 Fla. App. LEXIS 918, 1997 WL 43447
CourtDistrict Court of Appeal of Florida
DecidedFebruary 5, 1997
Docket95-1217
StatusPublished
Cited by10 cases

This text of 693 So. 2d 574 (Delva v. Value Rent-A-Car) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delva v. Value Rent-A-Car, 693 So. 2d 574, 1997 Fla. App. LEXIS 918, 1997 WL 43447 (Fla. Ct. App. 1997).

Opinion

693 So.2d 574 (1997)

Mario DELVA, Appellant,
v.
VALUE RENT-A-CAR, Appellee.

No. 95-1217.

District Court of Appeal of Florida, Third District.

February 5, 1997.
Rehearing Denied June 9, 1997.

*575 Simon & Nelson, Miami; Maland & Ross and Lauri Waldman Ross, Miami, for appellant.

Walton, Lantaff, Schroeder and Carson, Miami; Cooper & Wolfe and Marc Cooper and Maureen E. Lefebvre, Miami, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.

SCHWARTZ, Chief Judge.

Delva, then in his early twenties, was involved in an intersection accident in which he sustained permanent disabling injuries both to his back, including two spinal fractures, and his head, including optic nerve damage. In answer to special interrogatories, the jury found the driver of the defendant's car 100% liable for the accident. As to damages, it found that Delva had sustained permanent injuries and assessed $20,034 for past medicals, $1,000,000 for fifty years of future medicals reduced to a present value of $480,000, $20,000 in past non-economic losses but nothing for future ones.[1] After the verdict, plaintiff's counsel pointed out the apparent inconsistency in the $1,000,000 and zero verdicts for future intangibles and requested that the case be resubmitted to the jury to reconcile them. The defense, however, specifically and successfully resisted this suggestion. Subsequently, the trial judge orally granted a defense motion for a "mistrial"

and set this case for new trial because I don't think this case was appropriately resolved... [a]s to all issues.

Still later, he signed a written order granting a new trial on both liability and damages essentially on the grounds that the damage verdicts were inconsistent and, as to the future medical award, excessive.[2] We reverse *576 with directions to enter judgment on the jury verdict.

I.

We first find no basis for the trial judge's order that the new trial include the issue of liability. Even if, as we do not, we agreed that the jury's damage awards justified a re-trial on those questions, there was no error adverse to the defendant on the liability question and no indication that its resolution of that issue was in any way influenced by its decisions on damages. Hence, that portion of the order under review cannot be sustained. See Purvis v. Inter-County Tel. & Tel. Co., 173 So.2d 679 (Fla.1965); Griefer v. DiPietro, 625 So.2d 1226 (Fla. 4th DCA 1993), and cases cited; Royal Indemnity Co. v. Muscato, 305 So.2d 228, 229 (Fla. 4th DCA 1974), cert. denied, 321 So.2d 76 (Fla.1975); Larrabee v. Capeletti Bros., Inc., 158 So.2d 540 (Fla. 3d DCA 1963); see also D.R. Mead v. Cheshire, Inc., 489 So.2d 830 (Fla. 3d DCA 1986). The trial judge's reliance on Rivera v. Aldrich, 538 So.2d 1390 (Fla. 3d DCA 1989) was totally misplaced. That case involved an allegedly inadequate verdict in which, because it was possible that the jury had compromised on liability, a new trial on both liability and damages was required. This case, in which the jury specifically found 100% defense liability and the opposite of inadequacy is alleged, requires a different result.

II.

Turning to the real issues in the case, which arise from the damage verdicts, we likewise find the new trial order unjustified. This is because the bases of that ruling—that the $1,000,000 award for future expenses is inconsistent with the zero verdict for future intangibles and excessive for that element of damages when considered in isolation—are both legally flawed.

1. Inconsistency. Even assuming arguendo both that an award for future expenses is necessarily legally inconsistent with a zero verdict for future pain and suffering, but see Allstate Ins. Co. v. Manasse, 681 So.2d 779, 784 (Fla. 4th DCA 1996)(Klein, J., dissenting), and the even more dubious proposition that the defendant may be heard to complain about it,[3] compare Allstate Ins. Co. v. Manasse, 681 So.2d 779 (Fla. 4th DCA 1996) (plaintiff contending that zero verdict for future non-economic damages was inadequate and inconsistent with award for future medicals), there is no doubt that such an inconsistency may, and if possible, should be cured by permitting the jury to resolve it. See Cowart v. Kendall United Methodist Church, 476 So.2d 289 (Fla. 3d DCA 1985). In this case, the jury, after being told that *577 the two verdicts could not stand together, could have transposed the awards, divided the $1,000,000 between the two elements, or even left the $1,000,000 where it stood and added an additional amount for future intangibles. By objecting to the plaintiff's specific request that the jury be allowed to obviate the inconsistency problem in any of these ways, the appellee effected a binding waiver of its right to a new trial on that ground. See Cushman & Wakefield, Inc. v. Comreal Miami, Inc., 683 So.2d 208 (Fla. 3d DCA 1996); see also Higbee v. Dorigo, 66 So.2d 684 (Fla.1953); Hendelman v. Lion Country Safari, Inc., 609 So.2d 766 (Fla. 4th DCA 1992)(Dell, J., concurring specially), review dismissed, 618 So.2d 209 (Fla.1993); Alamo Rent-A-Car, Inc. v. Clay, 586 So.2d 394 (Fla. 3d DCA 1991); Cowart, 476 So.2d at 289; Wiggs & Maale Constr. Co. v. Harris, 348 So.2d 914 (Fla. 1st DCA 1977); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973). In Savoca v. Sherry Frontenac Hotel Operating Co., 346 So.2d 1207 (Fla. 3d DCA 1977), we held that the plaintiffs' successful resistance to a request to resubmit the issue barred a subsequent contention that a zero verdict for the husband's derivative claim was "inconsistent" with a damage award for the injured wife. By the same token, this defendant's post trial challenge to the inconsistency of a plaintiff's verdict is likewise barred. Thus, this aspect of the general rule requiring the timely assertion below of correctable error, Cowart, 476 So.2d at 290, which is directly applicable both on appeal and with respect to a motion for new trial, see Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974); see generally Cushman & Wakefield, 683 So.2d at 208, requires reversal.

2. Excessiveness. The other, but closely interrelated, complaint about the $1,000,000 verdict for future expenses is that it was "excessive" as unjustified by the evidence as to that particular issue. For two reasons, we again disagree.

In the first place, any reconsideration by the jury of the case as a whole, could have—and therefore, it must be presumed, would have—resulted in a reduction or elimination of the future medical award to a point of inexcessiveness or nonexistence, respectively. Thus, the defendant's successful objection below waived this claim as well. On this point, we endorse Judge Dell's opinion in Hendelman, 609 So.2d at 767:

It follows that a party may not circumvent these cases by later arguing the verdict is inadequate or contrary to the manifest weight of the evidence. It also seems logical that in most cases an inconsistent verdict would be either inadequate or contrary to the manifest weight of the evidence.

Plainly, the inadequacy situation there is the same as the excessiveness issue involved here.

Moreover, the excessiveness contention incorrectly views the verdict on the future expenses issue alone and without reference to the entire case.

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Bluebook (online)
693 So. 2d 574, 1997 Fla. App. LEXIS 918, 1997 WL 43447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delva-v-value-rent-a-car-fladistctapp-1997.