Rosenberg, N. v. United Financial Casualty

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2025
• Docket: 2717 EDA 2023
• Status: Unpublished

Opinion

J-A24008-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

NANCY ROSENBERG, INDIVIDUALLY : IN THE SUPERIOR COURT OF AND AS ADMINISTRATOR OF THE : PENNSYLVANIA ESTATE OF NEIL LIPSCHUTZ, : DECEASED : : Appellant : : : v. : No. 2717 EDA 2023 : : UNITED FINANCIAL CASUALTY : COMPANY, ERIC FONNER AND : FONNER INSURANCE ASSOCIATES, : HATIM RAMADAN AND NOHAD : RAMADAN :

Appeal from the Judgment Entered October 17, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 210101684

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 10, 2025

Nancy Rosenberg (Plaintiff),1 individually and as Administrator of the

Estate of Neil Lipschutz, Deceased, appeals from the judgment, entered in the

Court of Common Pleas of Philadelphia County, against Fonner Insurance

Associates and Eric Fonner (collectively, Fonner Defendants) in the amount of

$456,250.00 after the court denied her post-trial motion seeking judgment

notwithstanding the verdict (JNOV) and/or additur, as well as delay damages.

After careful review, we affirm.

____________________________________________

1 Plaintiff was married to Decedent at the time of his death. J-A24008-24

On November 26, 2019, Decedent was fatally injured as he walked along

the sidewalk on Township Line Road in Abington, Montgomery County, and

was struck by a motor vehicle driven by Hatim Ramadan, in which Nohad

Ramadan was a passenger. Following the accident, Plaintiff made a claim

upon the Ramadans and their insurer, Root Insurance Company (Root),

seeking damages. In response, Root tendered its policy limits of $25,000.00.

At the time of the accident, Decedent had personal motor vehicle

insurance coverage (personal policy) through Progressive Insurance Company

(Progressive). The personal policy had $275,000.00 in underinsured motorist

(UIM) coverage. Progressive had also issued a commercial auto policy

(commercial policy) to Decedent’s business, J.D. Matthews, LLC (business).

The business was the named insured on the commercial policy and Decedent

was listed as a “Rated driver” on the commercial policy. The commercial policy

was sold to Decedent and his business by the Fonner Defendants and had a

$1 million UIM limit2 for a Mazda Miata.3 The Miata was titled and registered

as a corporate vehicle for the business.

Plaintiff advised Progressive that she intended to proceed under the UIM

provisions of both the personal and commercial automobile policies. In

response, on April 29, 2020, Progressive sent Plaintiff a letter advising that

2 Decedent waived stacked UIM limits under the commercial policy as well as

the personal policy.

3 Both policies were issued by United Financial Casualty Company (UFCC), d/b/a Progressive insurance Company.

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the $1 million limit from the commercial policy was not available to her

because Decedent was not occupying an insured vehicle at the time of the

accident and Decedent did not have pedestrian coverage under the

commercial policy.

On January 26, 2021, Plaintiff filed a complaint against Progressive and

the Fonner Defendants, alleging professional negligence and vicarious

liability.4 Plaintiff alleged that, due to their existing business relationship and

the fact that Decedent’s personal policy covered pedestrian accidents, the

Fonner Defendants knew or should have known to recommend that Decedent

include pedestrian coverage in the commercial policy.

Plaintiff filed an amended complaint on April 6, 2021, asserting the

above-stated claims, as well as additional claims for breach of fiduciary duty

and negligent failure to train/supervise against the Fonner Defendants. The

Fonner Defendants filed preliminary objections to the amended complaint.

The court sustained the objections, in part, and dismissed the negligent failure

to train/supervise count.5, 6 ____________________________________________

4 The complaint also alleged counts of wrongful death and survival against the

Ramadans. Nohad Ramadan was dismissed from the case, without prejudice, prior to trial. See Pa.R.C.P. 229(b). The jury returned a verdict against Hatim Ramadan in the amount of $10,000.00. He is not a party to the instant appeal.

5 On November 8, 2022, the parties stipulated to discontinue the action against Progressive.

6 On November 8, 2022, Fonner Defendants filed a motion for summary judgment. On December 15, 2022, the court granted the motion, with (Footnote Continued Next Page)

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Prior to trial, the parties stipulated that “in the event the jury enters a

verdict in favor of [P]laintiff, and against [Fonner D]efendants[,] and the

verdict amount is in excess of $1 [million], the verdict will be molded to $1

prejudice, “as Plaintiff failed to answer and[,] therefore, this motion is uncontested.” Order, 12/15/22. Plaintiff moved for reconsideration of the order granting the Fonner Defendants’ motion for summary judgment, alleging that “Plaintiff had every intention of timely filing her opposition to [Fonner D]efendants’ motion for summary judgment . . . [but u]nfortunately, due to confusion and administrative error by [P]laintiff’s counsel, the answer was not filed.” Plaintiff’s Motion for Reconsideration, 12/22/22, at ¶ 18. Fonner Defendants filed an answer opposing Plaintiff’s motion for reconsideration. On March 1, 2023, the trial court entered an order denying Plaintiff’s motion for reconsideration, concluding it lacked jurisdiction to act further in the matter. See Trial Court Order, 3/1/23 (indicating after 30 days from date of court’s order granting summary judgment, court lacks jurisdiction to act in matter). On March 29, 2023, the trial court granted Plaintiff’s motion for reconsideration, vacated its prior order granting the Fonner Defendants’ summary judgment motion, and ordered Plaintiff to file a response to the Fonner Defendants’ motion for summary judgment. See Trial Court Order, 3/29/23. Plaintiff complied and filed a response to the Fonner Defendants’ motion. On March 31, 2023, the trial court entered an order denying Fonner Defendants’ motion for summary judgment.

We note that “a trial court has the inherent power to reconsider its own rulings.” Key Automotive Equip. Specialists v. Abernethy, 636 A.2d 1126, 1128 (Pa. Super. 1994). If a trial court fails to grant a motion for reconsideration within 30 days after the motion is filed, the trial court loses jurisdiction to act on the motion. See Gardner v. Consolidated Rail. Corp., 100 A.3d 280, 283 (Pa. Super. 2014). However, the 30-day limit applies only to final orders. See Key Automotive Equip. Specialists, 636 A.2d at 1128, citing 42 Pa.C.S.A. § 5505 (limiting time for modification or rescinding of final orders to within 30 days after its entry). Here, the trial court’s grant of the Fonner Defendants’ motion for summary judgment was an interlocutory order because it did not dismiss Defendant Ramadan from the action. See Pa.R.A.P. 341(b) (final order disposes of all claims and all parties). In other words, the order did not “effectively place [Plaintiff] out of court or otherwise end the lawsuit.” Key Automotive Equip. Specialists, 636 A.2d at 1128. Thus, the trial court had the authority to reconsider its ruling at that time.

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[million] as to [Fonner D]efendants.” Trial Stipulation Regarding Damages

against Fonner Defendants, 6/22/23.

The case proceeded to a five-day jury trial, commencing on June 26,

2023. At trial, the evidence established that Decedent would have had UIM

coverage under the commercial policy if he had executed a “Drive Other Car”

endorsement that would have provided him protection as a pedestrian. During

cross-examination, the Fonner Defendants’ expert witness testified that the

Fonner Defendants had, in fact, breached the standard of care for insurance

brokers, which caused Plaintiff to lose the opportunity to claim the full UIM

benefits available under the commercial policy, i.e., $1 million.

At the close of evidence and after the charging conference and finalizing

of the jury verdict slip,7 Plaintiff’s counsel moved for a directed verdict, stating

the following:

7 The verdict sheet, submitted to the jury for its deliberations, included the

following questions:

VERDICT SHEET

Question 1:

Do you find the Eric Fonner or Fonner Insurance Associates were negligent?

Yes ______ No ______

If you answered “Yes” to the foregoing question, proceed to the next question. If you answered “No” to the foregoing question, proceed to Question 3. (Footnote Continued Next Page)

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Question 2:

Do you find that the negligence of Eric Fonner or Fonner Insurance Associates was a factual cause of damages to Plaintiff?

Proceed to Question 3.

Question 3:

Do you find that the Fonner Defendants owed [Decedent] a fiduciary duty?

If you answered “Yes” to the foregoing question, proceed to Question 4. If you answered “No” to the foregoing question, proceed to Question 6.

Question 4:

Do you find that the Fonner Defendants breached a fiduciary duty owed to [Decedent]?

If you answered “Yes” to the foregoing question, proceed to Question 5. If you answered “No” to the foregoing question, proceed to Question 6.

Question 5:

Do you find that the Fonner Defendants’ breach of a fiduciary duty owed to [Decedent] was a factual cause of damages to Plaintiff?

Question 6:

Was [Decedent] or JD Matthews, LLC negligent? (Footnote Continued Next Page)

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Your Honor, I’m going to move for a directed verdict given that their expert literally just admitted on the stand that the defendant breached the standard of care. So[,] Question 1 on the verdict sheet as to [the Fonner Defendants] should be marked as [“]yes.[”] And I also asked him on cross-examination, and he admitted, that did that cost him [] to lose the opportunity to protect his family with a million dollars, and he said [“]yes.[”]

So based on those two specific answers, admissions by the defense expert, I believe that I should be entitled to a directed verdict.

N.T. Jury Trial, 6/30/23, at 94 (emphasis added). The trial court denied the

motion.

Ultimately, the jury returned a verdict in favor of Plaintiff and against

the Fonner Defendants, in the amount of $456,250.00, for failure to procure

proper coverage for Decedent. Plaintiff filed post-trial motions seeking a JNOV

and/or additur, as well as delay damages. The trial court denied the motions. ____________________________________________

Question 7:

Was the negligence of [Decedent] or JD Matthews, LLC[,] a factual cause of damages to Plaintiff?

If you answered “Yes” to the foregoing question, cease deliberations and return to the courtroom. If you answered “No” to the foregoing question, proceed to Question 8.

Question 8:

State the amount of damages, if any, you award to Plaintiff regarding the clams against the Fonner Defendants.

$_______________________

Advise the court officer that you have reached a verdict.

Verdict Sheet, 7/1/23.

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Plaintiff filed a timely notice of appeal. Both Plaintiff and the trial court have

complied with Pa.R.A.P. 1925.

Plaintiff raises the following issues for our consideration:

(1) Whether the trial court erred in denying [P]laintiff’s motion for JNOV against the [Fonner D]efendants where the [Fonner D]efendants admitted to breaching the standard of care and their expert changed his opinion, ultimately opining not only that [the Fonner D]efendants breached the standard of care[,] but also that [the Fonner D]efendants’ breach [of] the standard of care caused [P]laintiff to lose the benefit of $1 [million] in [UIM] coverage in connection with the death of [P]laintiff’s husband?

(2) Whether the trial court erred in denying [P]laintiff’s motion for additur against the [Fonner D]efendants where the admitted loss caused by the [Fonner D]efendants’ negligence was $1 [million] in [UIM] coverage and where the jury determined the value of [P]laintiff’s claim exceeded the $1 [million] in [UIM] coverage that should have been available by more than $8 [million]?

(3) Whether the trial court erred in rejecting [P]laintiff’s requested verdict sheet and instead used a verdict sheet including a separate award of damages against the [Fonner D]efendants where the verdict against the [Fonner D]efendants was directly and legally determined by the jury’s determination of the value of the claim against the third[-]party tortfeasor?

Plaintiff’s Brief, at 4-5.

In her first issue, Plaintiff argues the trial court erred in denying her

motion for JNOV. As a preliminary matter, Plaintiff argues that she properly

preserved her right to pursue a JNOV by moving for a directed verdict during

trial “as to the entirety of the claim against the Fonner [D]efendants.” Brief

of Appellant, at 39-40. To support her preservation argument, Plaintiff points

to that portion of the trial transcript in which she moved for a directed verdict

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based on the testimony of the Fonner Defendants’ expert witness, who

testified that the Fonner Defendants breached their duty of care in a way that

“caused [P]laintiff to lose the opportunity to protect his family with

$1,000,000[.00] in underinsured motorist coverage.” Id. at 41, citing N.T.

Jury Trial, 6/30/23, at 94.

Regarding her substantive claim, Plaintiff asserts that “the

uncontroverted evidence established not only numerous breaches, but that

the requested coverage to protect [P]laintiff existed and was not purchased.”

Id. at 47. This evidence includes testimony by Eric Fonner, who testified that

he knew that when Decedent requested uninsured and UIM coverage for his

commercial policy, he was requesting “equivalent coverages of a personal

policy,” and that Fonner had an obligation to explain the differences between

personal and commercial auto policies. Id. at 48, citing N.T. Jury Trial,

6/27/23, at 99-100. Plaintiff also points to Defendants’ expert witness’s

testimony that the Fonner Defendants breached applicable standards of care,

which cost Decedent the opportunity to receive $1 million in UIM coverage.

Id. at 46 n.1. Plaintiff further cites the testimony of David Hale, Progressive’s

underwriting representative, who testified that Decedent could have obtained

$1 million in underinsurance coverage by “stacking” his policies. Id. at 49-

51.

Additionally, Plaintiff argues the trial court erred by denying JNOV on

the basis of the pre-trial stipulation to limit damages against the Fonner

Defendants. Id. at 59. Plaintiff argues that the Fonner Defendants had “a

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clear understanding that a single verdict should be entered[,] as they stood

in the shoes of the underinsurance company.” Id. at 60. In support of this

assertion, Plaintiff quotes the Fonner Defendants’ motion to bifurcate trial in

which they acknowledged “economic damages sought against UFCC and [the

Fonner Defendants] are capped at the [UIM] coverage limits under the

commercial auto policy, $1 million [and] insurance damages sought, namely

an additional capped $1 million in UIM coverage sought under the commercial

auto policy of JD Matthews, LLC.” Id. at 60. Plaintiff proffers that “[a]t the

time the stipulation was entered, both parties were aware that the Fonner

[D]efendants’ liability was capped at the $1 [million] in [UIM] coverage that

was alleged should have been procured by the Fonner [D]efendants.” Id. at

61. Plaintiff claims that when the trial court permitted the jury to enter

separate damages verdicts for the Fonner Defendants and Defendant

Ramadan, it “impermissibly [] chang[ed] and extend[ed] the language of the

stipulation,” as “there is no language that permits the trial court to deny a

motion for JNOV because there is an agreed cap on damages against the

Fonner [D]efendants.” Id. at 62-63.

Our standard of review for the denial of a motion for JNOV is plenary,

as it involves a question of law. Foster v. Maritrans, Inc., 790 A.2d 328,

330 (Pa. Super. 2002). This Court reviews all evidence in the light most

favorable to the verdict winner. Reott v. Asia Trend, Inc., 7 A.3d 830, 835

(Pa. Super. 2010). “We will reverse a trial court’s grant or denial of a JNOV

only when we find an abuse of discretion or an error of law that controlled the

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outcome of the case.” Corvin v. Tihansky, 184 A.3d 986, 990 (Pa. Super.

2018). An abuse of discretion “occurs only where the trial court has reached

a conclusion that overrides or misapplies the law, or when the judgment

exercised is manifestly unreasonable, or is the result of partiality, prejudice,

bias[,] or ill-will.” Ball v. Bayard Pump & Tank Co., 67 A.3d 759, 767 (Pa.

2013).

A JNOV may be entered upon one of two bases: “one, the movant is

entitled to judgment as a matter of law and/or two, the evidence is such that

no two reasonable minds could disagree that the outcome should have been

rendered in favor of the movant.” Campisi v. Acme Markets, Inc., 915 A.2d

117, 119 (Pa. Super. 2006). A JNOV is warranted upon the first basis if this

Court “reviews the record and concludes that, even with all factual inferences

decided adverse to the movant, the law nonetheless requires a verdict in [the

movant’s] favor.” Id. A JNOV is warranted upon the second basis if this

Court, after review of the evidentiary record, concludes “that a verdict for the

movant was beyond peradventure.” Id. “If any basis exists upon which the

[jury] could have properly made its award, then we must affirm the trial

court’s denial of the motion for [JNOV].” Garced v. United Cerebral Palsy

of Philadelphia and Vicinity, 307 A.3d 103, 113-14 (Pa. Super. 2023).

However, a “party moving for JNOV must have preserved during trial

the claim on which it predicates its JNOV motion.” Kimble v. Laser Spine

Institute, LLC, 264 A.3d 782, 792 (Pa. Super. 2021), citing Pa.R.C.P.

227.1(b). The moving party may accomplish this by filing a motion for a

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directed verdict referencing a particular point of contention or requesting a

binding jury instruction regarding the claim. Id.

Under Pennsylvania law, “[a] plaintiff acquires a cause of action against

his broker or agent where the broker neglects to procure insurance, or does

not follow instructions, or if the policy is void or materially defective through

the agent’s fault.” Laventhol & Horwath v. Dependable Ins. Assocs., 579

A.2d 388, 391 (Pa. Super. 1990). If such fault arises, the broker is “liable to

the same extent as the insurer would have been liable had the insurance been

properly effected.” Id. (“[Broker], therefore, stands in the position of [the

insurer] if the [insurer’s] policy would have covered [insured]’s loss but for

[broker’s] fault.”). See also Wisniski v. Brown & Brown Ins. Co., 906

A.2d 571, 578 (Pa. Super. 2006) (“An ‘insurance broker’ is one who acts as a

middleman between the insured and the insurer[.]”). It is not disputed that

the Fonner Defendants were Decedent’s insurance brokers.

Here, the trial court denied Plaintiff’s JNOV motion on several grounds.

First, the court found that Plaintiff had waived her JNOV claim. The trial court

found that Plaintiff’s “motion for a directed verdict did not reference the issue

of whether she was entitled, by law, to a verdict of $1 [million] in the event

of the Fonner Defendants’ negligence.” Trial Court Opinion, 1/22/24, at 7.

Instead, “[h]er motion was limited to the issue of liability on the part of the

Fonner Defendants,” an issue that the trial court found to be “different from

that raised in her post-trial motion” for JNOV. Id. at 7-8. Additionally, the

trial court found that Plaintiff “failed at any point during the trial to request a

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binding jury instruction on the issue of the particular damages owed by the

Fonner Defendants.” Id. at 8. Consequently, the trial court found that

Plaintiff failed to preserve her post-trial JNOV claim.

Additionally, the trial court noted that a “stipulation on damages

becomes the ‘law of the case’ on the issue of damages and that the parties

become bound by its terms.” Id., citing Foley Bros. v. Com. Dep’t. of

Highways, 163 A.2d 80, 83 (Pa. 1960). Before trial, the parties stipulated

that a verdict against the Fonner Defendants that exceeded $1 million would

be molded to $1 million. See Trial Stipulation, 6/22/23. However, “[t]he

stipulation here contain[ed] no prohibition on the jury returning a verdict

against the Fonner Defendants of less than $1 [million],” meaning Plaintiff

“effectively agreed” that the jury award “could be less than $1 [million].” Trial

Court Opinion, 1/22/24, at 8 (emphasis added). The trial court, therefore,

concluded that the $456,250.00 award against the Fonner Defendants was

consistent with the law of the case, leaving it with “no basis . . . to interfere

with the lawful determination of the jury.” Id.

Our review of the record reveals Plaintiff did not preserve the issue of

damages for her post-trial JNOV. At trial, Plaintiff moved for a directed verdict

after the Fonner Defendants’ expert witness testified that the Fonner

Defendants breached the applicable standard of care, and that the breach cost

Decedent “the opportunity to protect his family with a million dollars” of

coverage. See N.T. Jury Trial, 6/30/23, at 40-41, 53-54, 94. That is, Plaintiff

did not reference the particular point of contention—damages—in her motion

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for a directed verdict. Kimble, supra. She instead referenced the Fonner

Defendants’ liability and Decedent’s lost opportunity to receive up to $1 million

in UIM coverage. Decedent’s lost opportunity to receive $1 million in UIM

coverage is not the same as Decedent actually losing $1 million in coverage.

Ultimately, the particular point of contention referenced in Plaintiff’s motion

for a directed verdict was Decedent’s opportunity to obtain insurance, not the

actual loss of that coverage. Kimble, supra.

While Decedent may have had this opportunity had the Fonner

Defendants not breached the applicable standards of care, it was disputed at

trial that he would have actually received $1 million in coverage. Campisi,

supra. Plaintiff did not present expert testimony to analyze potential

coverages or claims, nor did she offer any witnesses that testified the “Drive

Other Car” endorsement would have definitely provided $1 million in UIM

coverage. Additionally, there was language in Decedent’s commercial policy

that subtracted the value of any other policies from the $1 million payout.

See N.T. Jury Trial, 6/28/23, at 67-70. For instance, Decedent’s commercial

policy stated that it would be reduced by $250,000.00—the value of his

personal policy. See id. at 79-80. There was also conflicting testimony

regarding whether stacking—which would have allowed a full payout despite

the existence of another insurance policy—was available under the commercial

policy. Compare id. at 81-82 (Eric Fonner testifying stacking not available

for commercial policy), with id. at 108 (Plaintiff’s witness David Hale

testifying stacking available for commercial policy). Moreover, Plaintiff did not

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request a binding jury instruction regarding damages. Kimble, supra.

Consequently, Plaintiff did not preserve the issue of damages for her post-trial

JNOV and, accordingly, has waived it for purposes of appeal.

In her second issue, Plaintiff argues that the trial court erred in denying

her motion for additur. Plaintiff notes that “additur is appropriate where there

are no disputes regarding the facts, and ‘a new trial could not result in a

different outcome.’” Brief of Appellant, at 64, quoting Fiorenza v. Kohn, 577

A.2d 1384, 1386 (Pa. 1990). Plaintiff proffers that the “uncontroverted

evidence, including the admissions of [the Fonner Defendants’] expert witness

that the Fonner [D]efendants breached the applicable standard of care and

caused [P]laintiff to lose the protection of $1 [million] in [UIM] benefits,”

justify the additur to amend the verdict against the Fonner Defendants from

$456,250.00 to $1 million—the value of the UIM coverage that the Fonner

Defendants failed to procure. Brief of Appellant, at 64-65.

The standard of review for a trial court’s ruling on a motion for additur

is an abuse of discretion. Kohn, 577 A.2d at 1386. “An abuse of discretion

exists when the trial court has rendered a judgment that is manifestly

unreasonable, arbitrary, or capricious, has failed to apply the law, or was

motivated by partiality, prejudice, bias[,] or ill will.” Mader v. Duquesne

Light Company, 241 A.3d 600, 607 (Pa. 2020). So long as the verdict is

reasonably related to the damages proved, “the appellate court will not disturb

the verdict merely because the damages are less than the reviewing court

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might have awarded.” Slaseman v. Myers, 455 A.2d 1213, 1215 (Pa. Super.

1983).

The trial court dismissed Plaintiff’s motion for additur, finding that “it

lacked the authority” to grant the motion. Trial Court Opinion, 1/22/24, at

10. The trial court noted that the instances in which it may grant a motion

for additur are rare, such as when “damages are not disputed and a jury was

required to fix damages to a certain amount but failed to do so.” Id. at 9,

citing Dougherty v. McLaughlin, 637 A.2d 1017, 1019 (Pa. Super. 1994),

abrogated on other grounds by Davis v. Mullen, 773 A.2d 764 (Pa. 2001).

It also noted that “in cases where the injustice of the verdict ‘shines forth like

a beacon,’ or when the verdict ‘is so contrary to the evidence as to shock one’s

sense of justice,’ the proper remedy is to grant the aggrieved party a new trial

so that the injustice may be corrected.” Trial Court Opinion, 1/22/24, at 10,

quoting Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). Ultimately, the court

found that the value of the damages the Fonner Defendants owed was

disputed at trial, and the jury was not required to return a damages verdict of

$1 million against Defendants. Id.

As discussed above, damages were, in fact, disputed at trial. Plaintiff

moved for a directed verdict as to the Fonner Defendants’ breach of the

standard of care, and to Decedent’s lost opportunity to receive $1 million in

UIM coverage. See N.T. Jury Trial, 6/30/23, at 40-41, 53-54, 94. Plaintiff

did not, however, present expert testimony to establish that the Fonner

Defendants’ breach did, in fact, cost Decedent $1 million in coverage, nor did

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Plaintiff establish that the coverage would have equaled $1 million. See id.,

6/28/23, at 67-70. Since the damage amount was disputed, the jury was not

required to return a damages verdict of $1 million against the Fonner

Defendants. Dougherty, supra.

Additionally, the damage award bears a reasonable relationship to the

damages proved. Slaseman, supra. Again, it was not established at trial

that the Fonner Defendants cost Decedent $1 million in underinsurance

coverage, nor was it established that the policy would have ultimately paid

out $1 million. See N.T. Jury Trial, 6/28/23, at 67-70 (discussing language

in Decedent’s policy that would reduce commercial policy by value of other

policies). Thus, the inadequacy of the jury award does not shine forth like a

beacon, Kiser, supra, and the trial court’s denial of additur is not manifestly

unreasonable. Mader, supra. Accordingly, the trial court did not err in

denying Plaintiff’s motion for additur.

In her third and final issue, Plaintiff argues that the trial court erred in

rejecting her requested verdict sheet that included a single damages verdict

for the Fonner Defendants and Ramadan. Ultimately, the trial court used its

own verdict sheet, which included separate damages lines for the Fonner

Defendants and Ramadan. Plaintiff concedes that she did not traditionally

preserve the issue of the verdict sheet by objecting to the trial court’s ruling

to use a verdict sheet with separate damages lines. See Brief of Appellant,

at 58. However, Plaintiff argues that verdict sheets are analogous to jury

charges, which our Supreme Court held can be preserved if a party “make[s]

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requested points for charge part of the record pursuant to Pa.R.C.P. 226(a),

obtain[s] an explicit trial court ruling upon the challenged instruction, and

raise[s] the issue in a post-trial motion.” Id., quoting Jones v. Ott, 191 A.3d

782, 789 (Pa. 2018) (plurality).

Generally, the standard of review for verdict sheets is an abuse of

discretion. See Hyrcza v. West Penn Allegheny Health System, Inc., 978

A.2d 961, 968 (Pa. Super. 2009). A trial court abuses its discretion when its

pursued course “represents not merely an error of judgment, but where the

judgment is manifestly unreasonable or where the law is not applied or where

the record shows that the action is a result of partiality, prejudice, bias, or ill

will.” Rose v. Annabi, 934 A.2d 743, 746 (Pa. Super. 2007).

The trial court found that Plaintiff did not preserve this issue for appeal

because Plaintiff did not object to the court’s use of the chosen verdict sheet.

See Trial Court Opinion, 1/22/24, at 6. The trial court concluded that neither

Plaintiff’s proposed verdict sheet nor her argument that the Fonner

Defendants “stood in the shoes of the underinsurance company” was an

objection to the trial court’s use of its own verdict sheet. Id., citing N.T. Jury

Trial, 6/28/23, at 4-8. Consequently, the court concluded that “it cannot be

said that [Plaintiff] preserved the issue of the verdict sheet for appeal.” Id.

Our review of the record reveals that Plaintiff waived her challenge to

the verdict sheet. We note at the outset that the Jones waiver analysis

argued by Plaintiff was joined only by two justices; a third justice concurred

with a different waiver analysis. See Jones, supra. Therefore, the Jones

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waiver analysis—that a party preserves an issue for appeal if it files points for

charge, receives an explicit trial court ruling on the challenged instruction, and

raises the issue in a post-trial motion—did not garner a majority vote and,

thus, is not binding. See Lomas v. Kravitz, 130 A.3d 107, 123 n.11 (Pa.

Super. 2015) (en banc) (clarifying plurality opinion’s binding authority or

precedential value does not extend beyond parties in particular case).

Before submitting the case to the jury, the trial court asked the parties

if they had “any problems, slash, suggestions” with the court’s proposed

verdict sheet. N.T. Jury Trial, 6/29/23, at 153. Plaintiff did not object to the

court’s decision to include two damages lines on the verdict sheet. In fact,

Plaintiff concedes that she did not object to the trial court’s final order

regarding the verdict sheet. See Brief of Appellant, at 58. Because Plaintiff

did not object to the trial court’s verdict sheet, she has waived this issue on

appeal. See Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015)

(“Failure to raise [a timely] objection results in waiver of the underlying issue

on appeal.”).

Judgment affirmed.

Date: 4/10/2025

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