MAY, J.
An insurer appeals a jury verdict in an uninsured motorist case. It argues the trial court erred in denying its motions for new trial and remittitur. We agree and reverse.
An uninsured motorist rear-ended the plaintiff's vehicle. When the plaintiff's insurer did not tender its uninsured motorist coverage upon demand, the plaintiff filed a complaint against the insurer. The insurer admitted the existence of coverage, but claimed the plaintiff's injuries were pre-existing and not caused by the accident.
The plaintiff presented testimony from multiple doctors, who testified that the accident aggravated the insured's preexisting herniated discs, making them symptomatic for the first time. The plaintiff and her husband also testified.
The plaintiff admitted that she did not strike anything inside of her vehicle during the accident. She sustained no cuts or bruises; she told the other driver she was okay. She did not seek medical treatment immediately following the accident, but she began experiencing pain and muscle stiffness in her neck later that night. She went to an urgent care facility a few days later.
Eight months later, the plaintiff was seen by a chiropractor. She did not provide the chiropractor with any medical records; he was unaware of her prior medical condition.
Two years later, a pain doctor performed two epidural steroid injections, which revealed evidence of disc disease and arthritis. He reported the plaintiff was suffering from nerve entrapment in the back going down to the right leg and bilateral lumbar facet arthritis, a degenerative condition in the form of bony spurs in the spine, with drying out of spinal discs. He testified that multiple level disc herniations and bulges are more likely caused by aging than trauma.
A physiatrist, specializing in physical medicine and rehabilitation, reviewed x-ray and MRI films taken before and after the accident. He testified:
He testified that the plaintiff had a permanent increase in the frequency, duration, and intensity of her neck and back pain as a result of the accident, and sustained a thirteen-percent impairment. He opined that the plaintiff would have a five-year reduction in work life expectancy.
The plaintiff's forensic economist offered two models for future medical care costs. The economist testified that his opinions were based on the physiatrist's opinions concerning the plaintiff's condition and need for medical care. In his more conservative approach, he estimated future medical expenses of $514,750. In his more expensive model, including surgical intervention, he estimated the cost to be $745,107.
If the plaintiff was required to stop working five years early due to her injuries, she would lose approximately $135,300 in salary, plus an estimated ten to twenty-five percent reduction in vocational capacity, i.e., the lack of opportunity to get new jobs, for which he added another $115,667. When these two additional amounts were added to the more expensive cost of medical care, the total lifetime future losses totaled $958,229. Adding past medical expenses of $53,391, the economist testified to total damages of $1,017,657.
The defense expert, an orthopedic surgeon, testified that he examined the plaintiff and found nothing abnormal. At most, the plaintiff might have suffered a temporary exacerbation of preexisting conditions from the accident, but not a permanent aggravation or new injury, and certainly not an aggravation to the degeneration in her lumbar spine.
He opined the plaintiff "does not need any ongoing medical treatment in chiropractic, in physical therapy, base procedures, surgery or any other treatment as a result of this accident." He placed no activity or work-related restrictions on the plaintiff.
During cross-examination, plaintiff's counsel asked the defense expert a series of questions concerning the doctor's use of foreign help to transcribe his medical records. Specifically, the doctor was asked to explain why he sends his dictation to India to be transcribed. Plaintiff's counsel also asked a series of questions concerning the defense expert's insistence that plaintiff disrobe and wear a flimsy paper robe during the examination, insinuating that the doctor had some perverse sexual orientation. Defense counsel immediately objected to the second line of questioning as argumentative, inappropriate, and highly inflammatory.
The trial court held a sidebar conference, sustained the objection, but denied the request for a curative instruction. The court also denied the defense motion for mistrial. The court commented: "This is — I'll tell you truthfully, that made me uncomfortable. And I think it does prejudice
The defense then played the video deposition of a radiologist, who testified that the MRI images revealed abnormalities prior to the accident that were not related to trauma, but from degenerative disc disease. The MRIs done after the accident revealed a "drying out process" in the disc space that occurs over a long period of time, and was not caused by the accident.
The court denied the insurer's motion for directed verdict on past medical bills and on permanency. During deliberations, the jury had many questions, which were returned unanswered. It ultimately returned a verdict finding causation, but
When the jury returned with its verdict, the court noticed the jury had failed to total the verdict. The court returned the verdict form to the jury, instructing it that "the last line, it says `TOTAL.'" When the jury returned to deliberate, the trial court inquired if there was any irregularity in the verdict. Plaintiff's counsel answered "no." Defense counsel responded: "From a form standpoint, Your Honor ... other than the total, no. From an evidentiary standpoint, yes. But that argument is for another day." At that point, plaintiff's counsel stated: "Neither party is waiving their right on other issues."
When the jury returned, it totaled the numbers and reached a verdict of $568,141. Defense counsel then asked the court to poll the jury to insure that the award was for future medical treatment. After some discussion, the court agreed to poll the jury, but not to ask a specific question about the damage amount.
The insurer filed a Motion for New Trial, Renewed Motion for Directed Verdict or, in the Alternative, Motion for Remittitur. The latter motion argued that the verdict was excessive because the jury awarded lifetime future medical expenses without a finding of permanency. The court denied the motions. With respect to the argument that the award of lifetime future medical expenses was excessive, the court stated:
The court entered a final judgment for $100,000, the amount of coverage, and subsequently awarded costs of $21,195.57. From this judgment, the insurer now appeals.
The insurer argues the trial court erred in denying its motion for a mistrial based on the cross examination of the defense expert, which attempted to show the expert was: (1) "un-American" by outsourcing transcription jobs to India; and (2) a sexual predator or pervert because he made the examinees wear "a very thin piece of paper cloth over their body." The plaintiff responds that the trial court acted within its discretion in denying the motion for mistrial on this ground. We agree and find no error in the court's handling of this issue.
The insurer next argues that because the jury found no permanent injury, the award of damages for future medical treatment was excessive. Further, the insurer argues that the excessive verdict also resulted from the incendiary and inflammatory impeachment of the defense expert, as noted by the trial court during the post-trial hearing: "[T]he questioning of [the defense expert] by the Plaintiff's counsel was prejudicial to the Defense's case as a result of the fact that [the defense expert] was in large part the entirety of the defense's case."
And last, the insurer argues the trial court abused its discretion in failing to order a remittitur because "only medical expenses which are reasonably certain to be incurred in the future are recoverable." Truelove v. Blount, 954 So.2d 1284, 1287 (Fla. 2d DCA 2007) (quoting Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953)). Here, the award of future medical expenses is excessive based on the jury's finding of no permanent injury.
The plaintiff responds that the insurer failed to preserve the excessiveness issue because it really is an inconsistent verdict argument in disguise. Because the insurer did not object to the inconsistent verdict before the jury was excused, it waived the issue. Alternatively, the verdict is not excessive as it is supported by the evidence.
We first address preservation. Looking back over almost eighty years of Florida case law reveals a consistent goal of ensuring that "the intent of the jury in rendering the verdict may fairly and with certainty be gleaned from the words used. ..." Gen. Motors Acceptance Corp. v. Judge of Circuit Court, 102 Fla. 924, 136 So. 621, 622 (1931). To that end, Florida courts have required any objection to the form of the verdict to be made before the discharge of the jury to allow correction of a correctable error. Higbee v. Dorigo, 66 So.2d 684, 685 (Fla.1953). When that verdict is rendered and "no objection appears to have been made to the form of verdict when the same was presented to the court, the form thereof was waived." General Motors, 136 So. at 622. This requirement has withstood the test of time and remains the law today. See Atl. Coast Line R. Co. v. Price, 46 So.2d 481, 483 (Fla.1950); Dep't of Transp. v. Stewart, 844 So.2d 773, 774 (Fla. 4th DCA 2003); Moorman v. Am. Safety Equip., 594 So.2d 795, 799 (Fla. 4th DCA 1992).
On the other hand, objections to the inadequacy or excessiveness of a verdict can be raised in motions for new trial without the need for an objection prior to the jury's discharge. See Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941).
Id. at 377-78.
In recent years, the line of demarcation between inconsistent and excessive or inadequate verdicts has been blurred. Scott v. Sims, 874 So.2d 21 (Fla. 1st DCA 2004) (acknowledging confusion in the case law concerning verdicts that are both inconsistent and inadequate). This is especially true in the area of no fault litigation and with the advent of special interrogatory verdict forms. Massey v. Netschke, 504 So.2d 1376, 1377 (Fla. 4th DCA 1987) (finding that the "[defendants have confused an inconsistent verdict with an inadequate verdict"). What might appear as an inconsistent verdict may actually be an excessive or inadequate verdict. The confusion has in part occurred because these arguments are often combined or intertwined, thereby obfuscating the line between the two. We use our judicial pen to draw a clearer line for preservation purposes.
In doing so, we acknowledge language in Stewart, which might suggest that an excessive or inadequate verdict argument cannot be made if an objection is not lodged prior to discharge of the jury. 844 So.2d at 774-75. However, in Stewart, the appellant argued the verdict was both inconsistent and excessive. Id. at 774. We stated:
Id. (internal citations omitted). To the extent Stewart suggests these arguments can never be separately made, we clarify that an inconsistent verdict is an argument that can be made separately from an argument of excessiveness of inadequacy. See Delva v. Value Rent-A-Car, 693 So.2d 574, 576-77 (Fla. 3d DCA 1997).
Consistent with common law and its evolution throughout Florida case law, a jury verdict which is truly inconsistent
Here, the insurer consistently argued the verdict was excessive without mentioning the word "inconsistent." When the trial court gave defense counsel the opportunity to raise the issue of an inconsistent verdict, counsel responded there was an irregularity "[f]rom an evidentiary standpoint" but that "that argument is for another day." By raising the excessiveness issue in the motions for new trial and remittitur, defense counsel preserved the issue for consideration. See Radiant Oil, 200 So. at 377-78. The trial court erred in refusing to consider the issue based upon a lack of preservation. In fact, plaintiff's counsel reassured defense counsel and the court that "[n]either party is waiving their right on other issues." The trial court agreed, stating it is "[u]nderstood" and there is "[n]o question." We turn now to the merits of the excessiveness issue.
A trial "court should not order a new trial unless it believes that the amount awarded is so great `as to indicate that the jury must have found it while under the influence of passion, prejudice or gross mistake.'" State Farm Mut. Auto. Ins. Co. v. Rindner, 996 So.2d 932, 934-35 (Fla. 4th DCA 2008) (quoting Glabman v. De La Cruz, 954 So.2d 60, 62 (Fla. 3d DCA 2007)). "`Remittitur cannot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice.'" City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008) (quoting Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004)).
Section 768.043, Florida Statutes, requires a trial court to review a jury's award of damages in personal injury actions arising out of automobile accidents:
§ 768.043(1), Fla. Stat. (2008). Subsection (2) requires the trial court to consider five criteria "[i]n determining whether an award is clearly excessive ... and in determining the amount ... that such award exceeds a reasonable range of damages...." Id. These factors are:
§ 768.043(2), Fla. Stat.
The defendant argues the jury's award of future medical expenses demonstrated the jury's prejudice against the defense expert, based on the improper questions concerning his out-sourcing of work and requiring examinees to disrobe. The defendant couples this argument with the economist's reliance on opinions of the plaintiff's physiatrist to justify his opinion on future medical expenses. While the physiatrist testified that the plaintiff suffered a permanent injury, the jury in fact found the opposite. This argument essentially encompasses all five factors of section 768.045(2), Florida Statutes.
After the Florida Supreme Court's pronouncement in Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla.1995), Florida has permitted awards of future economic damages even when the jury finds no permanent injury. As the trial court recognized, while not a prerequisite, a permanent injury "is a significant factor in establishing the reasonable certainty of the future damages." Id. at 91; see also Owen, 793 So.2d at 1018.
Here, the trial court did not undertake an analysis of the five factors of section 768.045(2) because it found the verdict inconsistent and the error unpreserved.
Because we find the excessiveness issue preserved, we reverse and remand the case to the trial court. On remand, the trial court should focus on whether the verdict was excessive given the jury's finding of no permanent injury under the factors outlined in section 768.043(2), Florida Statutes, and whether a new trial or remittitur should be granted.
Reversed and Remanded.
HAZOURI, J., concurs.
FARMER, J., dissents with opinion.
FARMER, J., dissenting.
The majority opinion poses a false dichotomy. The choice is not between a verdict that is inconsistent and one that is excessive, each cancelling the other. We are not called here to exercise a facility in nomenclature and taxonomy. Rather, the question presented is one of composition: whether the damages fixed for future medical expenses were legally precluded because of the Jury's finding of no permanent injury.
In Florida Department of Transportation v. Stewart, 844 So.2d 773 (Fla. 4th DCA 2003), where we faced the same issue presented by this case, we held:
844 So.2d at 774.
Stewart explicitly holds that for this kind of verdict the choice between inconsistency and excessiveness is false. When the excess represents an amount not authorized by the Jury's specific finding of fact (in Stewart, and here, a lack of permanent injury) the verdict is truly inconsistent — in consequence of which it contains excessive damages. To preserve the issue the party opposing such damages as are inconsistent with the factual finding is required to act before the jury is discharged. Stewart could not possibly be more definitive and conclusive on this point.
The majority's analysis seems to reflect a culture of treating this specific preservation requirement as an inconvenience freely excusable by deconstructing various aspects embraced in damages and elevating them to undeserved import. I think this is contrary to the policy on which the preservation requirement is based. We explained in Moorman v. American Safety Equipment, 594 So.2d 795 (Fla. 4th DCA 1992), that:
594 So.2d at 800. Progressive had a handy tool available to settle the inconsistency problem with future economic damages while the Jury was still in the courtroom. The Judge could have then properly reinstructed the Jury on the issue and required a new verdict. Instead the party claiming prejudice from the inconsistency elected to "take it up later" in spite of the rule of preservation requiring consideration then and there or lose it. There is nothing unjust about an appellate court declining to engage in linguistic metaphysics to save an unpreserved verdict inconsistency.
In sum, the problem with the future damages here is not simply an issue of either-or. It is instead a single compositional error involving an award of future damages forbidden unless the injury is permanent. Under Moorman it is improper to "use our judicial pen to draw a clearer line for preservation purposes" when a more apt clarity results by simply and correctly restating the rule itself. Stewart, 844 So.2d at 774-75; Colon, 725 So.2d at 1145. The majority's decision conflicts with our decisions in Stewart and Moorman and the Third District's in Colon.
I would affirm.