112 So. 3d 118
Fla. Dist. Ct. App.2013Background
- Thelma Burke was injured when a Fyock truck rear-ended her car; Rolon drove the truck.
- Burke sued Fyock and Rolon; a jury awarded some damages but Burke sought additur or a new trial for inadequate damages.
- The trial court granted Burke’s motion, noting two evidentiary errors and that Burke would need ongoing care for spinal and TMJ injuries.
- The court granted a new trial on all damages and the permanency issue, not limited to the contested damages identified in Burke’s motion.
- On appeal, Rolon and Fyock challenge the broad grant; Burke cross-appeals the inclusion of damages not raised in her motion.
- The appellate court affirms the new-trial grant in part but reverses on the scope; remands to limit retrial to contested damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of new trial on damages | Burke contends the new trial should cover only contested damages. | Fyock/Rolon argue broader retrial is warranted due to evidentiary errors. | New trial limited to contested damages; reverse to the extent broader than contested. |
| Permanency and noneconomic damages | Burke asserts permanency and related noneconomic damages were properly includable. | Defendants challenge permanency findings and related noneconomic damages as disputed. | Evidence supported permanency; noneconomic damages affected by permanency allowed to stand within scope. |
Key Cases Cited
- ITT Hartford Ins. Co. of the Se. v. Owens, 816 So.2d 572 (Fla.2002) (abuse of discretion standard for new-trial reversal)
- City of Tampa v. Long, 638 So.2d 35 (Fla.1994) (permanency can be based on subjective complaints)
- Wald v. Grainger, 64 So.3d 1201 (Fla.2011) (before noneconomic damages for all injuries related to the accident after permanency finding)
- Howard v. Perez, 707 So.2d 845 (Fla.2d DCA 1998) (reversing a broadened new-trial order where issues were not substantially disputed)
- Astigarraga v. Green, 712 So.2d 1183 (Fla.2d DCA 1998) (new trial limited to contested damages and related issues)
- State v. Aetna Cas. & Sur. Co., 92 So. 871 (Fla.1922) (organic right to jury trial limited to contested issues involving facts)