21 Fla. L. Weekly Supp. 625a
Online Reference: FLWSUPP 2107NGARInsurance — Personal injury protection — Where nothing in record indicates that jury did not follow instructions to determine amount of reasonable medically necessary expenses in reaching $1,000 verdict and instead took into consideration $1,000 deductible that was mentioned at trial notwithstanding motions in limine and applied deductible to expenses before reaching verdict, trial court abused discretion by granting new trial
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. NIURKA GARCIA as mother and legal Representative of Rocio Fornes, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-276 AP. L.T. Case No. 08-3449 CC 26. April 14, 2014. On Appeal from the County Court, Miami-Dade County, Florida, Lourdes Simon, Judge. Counsel: Lara J. Edelstein, for Appellant. Marlene S. Reiss, for Appellee.
(Before SANTOVENIA, FIGAROLA, and HANZMAN, JJ.)
(SANTOVENIA, Judge.) This is an appeal from an Order granting a motion for a new trial. We have jurisdiction. The Plaintiff below (now Appellee) sued the Defendant-Insurer (now Appellant) for unpaid bills in the amount of $16,120 and the case was tried before a jury. The jury reached a verdict in the amount of $1,000 in favor of Appellee.
Prior to trial, both parties moved in limine to preclude any mention of the policy deductible. However, during trial testimony was presented regarding the $1,000 deductible in the insurance policy.
The Plaintiff (Appellee) did not move for a mistrial and the trial court determined that the examination should proceed. Furthermore, during closing argument, the Plaintiff (Appellee) attempted to explain the evidence of the deductible that had been presented to the jury through the Appellant’s adjuster. After an objection by the Appellant, the Appellee’s closing argument was presented with no further mention of the deductible.
Neither party requested a jury instruction with regard to the policy deductible. As such, standard instructions were given which directed the jury to render a verdict based upon the evidence before it.
The jury reached a verdict in the amount of $1,000 in favor of the Appellee. Appellee took the position below that since the jury heard evidence of the deductible, along with the trial court’s instruction to render a verdict based upon the evidence before it, then the jury must have taken the deductible into consideration and applied it before reaching its verdict of $1,000.
Conversely, Appellant argued that there was no reason to believe that the jury took into consideration the policy deductible when the jury deliberated. Therefore, the Appellant reasoned that the trial court should apply the $1,000 deductible to reduce the $1,000 jury verdict and enter a zero judgment in its favor.
The trial court accepted Appellee’s contention that the jury verdict raised questions as to whether the jury deliberations took into consideration the policy deductible evidence that the jury had heard notwithstanding the motions in limine. The trial court concluded that it was impossible to determine whether the jury, having heard evidence of the deductible, did or did not apply the deductible before rendering its verdict for $1,000 in favor of the Appellee. The trial court, however, did not find that the jury failed to follow the jury instructions. Notwithstanding, the trial court granted a new trial and this appeal timely ensued. For the reasons stated below, we reverse the trial court’s order granting a new trial and remand this case for further proceedings consistent with this opinion.Analysis
The standard of review of a trial court’s order granting a new trial is abuse of discretion. City of Tampa v. Companioni, 74 So. 3d 585, 586 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2549a]. A trial judge may grant a new trial if the verdict is contrary to the manifest weight of the evidence. Brown v. Estate of A.P. Stuckey, 749 So. 2d 490, 495 (Fla. 2000) [24 Fla. L. Weekly S397a]. However, the trial judge must refrain from acting as an additional juror. Laskey v. Smith, 239 So. 2d 13, 14 (Fla. 1970).
If there is insufficient evidence to support the conclusion that the jury failed to follow the trial judge’s instructions, then the jury’s verdict should stand. Mourer & Mourer, Inc. v. Terry, 787 So. 2d 220, 221 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1283a]. In the case at bar, we find that nothing in the record indicates that the jury did not follow the instructions in reaching a verdict amount of $1,000. As such, this panel finds that the jury’s verdict (to be reduced by the trial judge by the policy deductible amount) should stand and that the trial judge abused its discretion when it granted a motion for a new trial.
Further, the record does not reflect any error below regarding the jury’s determination of the amount of reasonable medically necessary charges. It must be stressed that the jury was not asked to determine the total amount of Plaintiff’s damages. Rather, the verdict form (to which Appellee did not object per Appellee’s admission at the oral argument on appeal) clearly states that the jury was asked to determine the amount of reasonable medically necessary expenses in responding to the following question: “What is the amount you find reasonable? [of medically necessary charges for services]”1. R. 296 at question 4. As such, there is no dispute that what the jury was asked to determine and did determine when it reached its verdict for $1,000 was the amount of reasonable medically necessary charges. Once the jury’s determination is clear, the trial court’s application of the $1,000 deductible to reduce that $1,000 amount of reasonable medically necessary charges to a zero award is a fairly straightforward exercise.
For these reasons, the order granting a new trial is REVERSED. This cause is REMANDED to the trial court for further proceedings consistent with this opinion.
The Appellant’s motion for attorney’s fees is DENIED as being premature because the trial court must first enter judgment in Appellant’s favor, which has not yet occurred. (FIGAROLA and HANZMAN, JJ, Concur.)
__________________
1Questions one through three of the verdict form evidence that question four of the verdict form refers to medically necessary charges for services:
1. Are any of the services related to the accident of September 27, 2007?
___Yes ___No
2. Are any of the services medically necessary?
___Yes ___No
3. Are the charges for the services reasonable? If you find a charge or the charges reasonable, you should proceed to number 4. However, if you find the charge or charges unreasonable, you must determine a reasonable amount for the charge or charges, then proceed to question 4.
__________________
(HANZMAN, J, Concurs) I concur in my colleague’s decision to reverse the order granting Appellee a new trial because, as Judge Santovenia correctly points out, the “deductible” had absolutely nothing to do with the question the jury was charged with answering. The jury was asked — and answered — a very simple question; namely, how much were Appellee’s reasonable, related and necessary medical expenses. Whether a “deductible” was contained in the policy — and if so its amount — had no bearing whatsoever on this issue. Thus, Appellee’s purported basis for a new trial — i.e., the alleged “confusion” over whether the jury considered the deductible — was simply manufactured.
Furthermore, to sanction a “do-over” in this case would be to countenance a “heads I win — tails you lose” game Appellee played with its opponent and the jury. If a verdict in excess of $1,000.00 had been returned — thus allowing Appellee to “prevail” even after applying the deductible, and thereby recover attorney’s fees — I have no doubt it would have permitted the deductible to be applied without objection, and unhesitatingly accepted its favorable judgment and attorney’s fee award. But if — as happened here — the verdict returned was $1,000.00 or less it would profess jury “confusion” regarding the deductible as a basis for a new trial. Put simply, Appellee set up an “option” the law does not — and should not — permit. If Appellee was sincerely concerned that the jury might be “confused” as to whether to apply the deductible, it should have asked the trial court to reiterate to the jury the obvious: that the “deductible” had no relevance to the question posed and should not be considered. Appellee was not free to sit back and play its “confusion” card if — and only if — the verdict came in at $1,000.00 or less. And we will not authorize a new trial based on a game of “gotcha.” See S.C. v. Dep’t of Children & Families, 877 So. 2d 831 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D1603a].
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