Monday, June 1, 2009

New Trial on Liability and Damages Appropriate when Additur Necessary

In Westminster Comm. Care Svcs., Inc. v. Mikesell (5D08-1326), the Fifth District held that the trial court erred by refusing to grant a new trial as to liability when it granted a new trial as to damages. The court held:

Westminster is correct that the trial court should have granted its request for a new trial on both liability and damages. A line of decisions rendered by the district courts, including this court, hold that despite the limiting provision in section 768.74(4), when a jury award is inadequate and an additur is necessary to correct the inadequacy, a new trial on the issues of liability and damages is appropriate when the liability issue was hotly contested by the parties. Frasher v. Whitehurst Family, Inc., 948 So. 2d 36, 38 (Fla. 3d DCA 2006); Scott v. Sims, 874 So. 2d 21, 22 (Fla. 1st DCA 2004) (“[B]efore new trial should be allowed on damages alone, a defendant’s liability must be unequivocally established and not substantially disputed at trial; nor can it be the result of the jury’s compromise on the liability issue . . . .”); Food Lion v. Jackson, 712 So. 2d 800, 803 (Fla. 5th DCA 1998) (noting the provision in section 768.74(2) that instructs that the adverse party be given the choice of accepting the amount of additur or a new trial on damages only, and holding that a new trial on the issue of liability should also be ordered if liability was hotly contested); Newalk v. Florida Supermarkets, Inc., 610 So. 2d 528, 529-30 (Fla. 3d DCA 1992) (holding new trial on all issues required where damage award was inadequate and liability was hotly contested); Broward County Sch. Bd. v. Dombrosky, 579 So. 2d 748, 49-50 (Fla. 4th DCA 1991); Watson v. Builders Square, Inc., 563 So. 2d 721, 722 (Fla. 4th DCA 1990) (“[W]hen a damage award is clearly inadequate and the issue of liability is hotly contested, such circumstances give rise to a suggestion that the jury may have compromised its verdict.”). These decisions are premised on the generally accepted notion that in such cases the jury may have returned a compromised verdict that does not reflect a true and just decision based on the evidence and the pertinent law.


Post a Comment