        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                JEFFREY P. ARNOLD and TINA ARNOLD,
                             Appellants,

                                      v.

             SECURITY NATIONAL INSURANCE COMPANY,
                            Appellee.

                               No. 4D13-0061

                            [September 16, 2015]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No.
312010CA073563.

  Philip M. Burlington and Adam J. Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, and Brian J. Connelly of Gould
Cooksey Fennell, P.A., Vero Beach, for appellants.

  Rosemary B. Wilder of Marlow, Adler, Abrams, Newman & Lewis, Coral
Gables, for appellee.

CONNER, J.

    Jeffrey P. Arnold appeals the trial court order reducing the jury awards
for past and future pain and suffering against Security National Insurance
Company (“Security”) by a total of $996,000.1 We reverse the order
because the record fails to identify or explain what establishes the need
and appropriate amount for a remittitur. We remand for a further
determination by the trial court on the issue of remittitur.




1Arnold’s wife is also an appellant, but we craft our opinion with reference to
only Jeffrey Arnold to facilitate easier reading.
              Factual Background and Trial Court Proceedings

    Arnold sued Security, his uninsured motorist carrier, after being
injured in a car accident. His coverage was limited to $100,000.2 Arnold
alleged that he suffered physically, emotionally, and financially as a result
of the uninsured driver’s negligence.

   At trial, Arnold produced expert testimony to support his claims for
past and future medical expenses related to a herniated disc caused by
the accident.3 He also produced evidence in support of his claims for past
and future pain and suffering. The specific evidentiary contention that
frames most of the arguments on appeal revolves around whether, in the
future, Arnold will either have to (1) undergo a disc fusion surgery or (2)
endure a life of pain, if the microdiscectomy surgery that was scheduled
to occur shortly after trial was not substantially successful.

   Regarding the need for future medical treatment, Arnold’s expert
testified that Arnold needed the microdiscectomy surgery. The expert
further testified on direct examination that “[t]he majority of patients after
the [microdiscectomy] surgery have most resolution of their symptoms, but
a substantial number may go on to have either persistent pain or recurrent
pain at that level or even a recurrent herniation, and that will require
future surgical treatment.” The expert also testified that the future
surgical treatment needed to address a recurrent herniation would be a
disc fusion surgery. However, on cross-examination, the expert admitted:

      Q.     We don’t know what is going to happen to Mr. Arnold?
      A.     No, we don’t.
      Q.     You don’t know if he’s going to need an additional
             surgery at all, do you?
      A.     That’s correct.




2 By separate order, we have denied Security’s motion to dismiss this appeal on
the grounds that the $100,000 limitation on coverage makes this appeal moot.
See GEICO Gen. Ins. Co. v. Paton, 150 So. 3d 804, 807 (Fla. 4th DCA 2014)
(holding that a jury verdict in excess of policy limits fixes the amount of damages
in a first-party bad faith action); Lund v. Dep’t of Health, 708 So. 2d 645, 646
(Fla. 1st DCA 1998) (citing Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992)) (“A
generally recognized exception precluding dismissal of an otherwise moot case
occurs in situations wherein collateral legal consequences affecting the rights of
a party may flow from the issues to be decided.”).
3 Security’s defense was that Arnold’s physical condition was caused by previous

injuries or normal degenerative processes.

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    After deliberating, the jury returned a verdict awarding damages in the
following amounts:

      Past Medical Damages            $ 26,413
      Future Medical Damages          $126,000
      Past Lost Earnings              $ 35,000
      Past Pain and Suffering         $500,000
      Future Pain and Suffering       $800,000

This amounted to a total award of $1,487,413.

   Post-trial, Security filed a motion for new trial and a motion for
remittitur. Both motions were predicated in part on the contention that
the award of future medical expenses for a disc fusion surgery was based
on speculative evidence. Security argued, post-trial, that Arnold’s expert
testimony supported an award of only $30,000 for future medical
expenses, representing the cost of a microdiscectomy surgery and not the
cost of a disc fusion surgery.

    The trial court denied the motion for new trial, but granted the motion
for remittitur, stating:

      D. The Plaintiff’s treating physician testified that the
      discectomy being planned at a cost of approximately $30,000
      was to resolve his symptoms. Evidence of a Plaintiff’s pain
      and suffering over the last three years was limited and the
      Plaintiff was able to work full-time and resume his normal
      activities. Any surgeries after the discectomy and expenses
      related thereto were merely speculative. The jury speculated
      on the future optional surgery and as a result, the future
      medical expenses are excessive. Thus, the future medical
      expenses award should be remitted to $30,000 (not
      $126,000).

      E. In light of the testimony, the verdict and all of the facts and
      circumstances of this case, the Court finds that the
      noneconomic damages were not within a reasonable range of
      damages for the Defendant’s injury and were indicative of
      prejudice or passion or misconception of the merits of the case
      and the amount does not bear a reasonable relation to the
      amount of damages proven and injury suffered by the Plaintiff.
      The Court further finds that the amount awarded is not
      supported by the evidence and could not be adduced in a
      logical manner by reasonable persons and after carefully


                                      3
      considering the criteria set forth in Section 768.74(5), finds
      the noneconomic damages were excessive and should be
      remitted.

In total, the trial court granted remittitur in the amount of $996,000 as
follows:

Category                       Jury Award         Amount After Remittitur
Future Medical                 $126,000           $30,000
Past Pain & Suffering          $500,000           $200,000
Future Pain & Suffering        $800,000           $200,000

This, accordingly, reduced the final judgment amount to $491,413. Arnold
gave notice he was appealing the grant of remittitur.

                            Appellate Analysis

   A trial court’s determination that a damage award is excessive and
requires a remittitur or a new trial is reviewed under a clear abuse of
discretion standard. Azoulay v. Condo. Ass’n of La Mer Estates, Inc., 94
So. 3d 686, 687 (Fla. 4th DCA 2012) (citing Aills v. Boemi, 41 So. 3d 1022,
1027 (Fla. 2d DCA 2010)).

   Our supreme court has observed that

      [t]here is an element of speculation in most personal injury
      verdicts, but this is a matter for jury discretion. The court
      may review their discretion but not the amount awarded
      unless shown to be clearly arbitrary.

Sproule v. Nelson, 81 So. 2d 478, 481 (Fla. 1955). Additionally, the court
has written that

      the question of damages is one lodged in the sound discretion
      of the jury within reasonable bounds, and the findings of a
      jury in respect to damages will not be disturbed by this Court
      unless it plainly appears that the verdict was induced by
      prejudice or passion or some misconception of the law or
      evidence, or that the jury failed to consider all the elements of
      the damages involved or the issues submitted.

Higbee v. Dorigo, 66 So. 2d 684, 686 (Fla. 1953).

   In granting a remittitur or an additur, there is always the concern that
the trial court is usurping the function of the jury. What makes the

                                     4
concern more difficult is that “[t]he line of demarkation [sic] between the
province of the court and that of the jury in this, as in all other mixed
questions of law and fact, is often difficult to distinguish.” De la Vallina v.
De la Vallina, 107 So. 339, 339 (Fla. 1926). Nonetheless, the law is clear
that “the trial judge does not sit as a seventh juror with veto power.”
Laskey v. Smith, 239 So. 2d 13, 14 (Fla. 1970); see also Malpass v.
Highlands Ins. Co., 387 So. 2d 1042, 1043 (Fla. 3d DCA 1980) (“[T]he trial
court improperly sat as a seventh juror and, simply disagreeing with the
size of the verdict, exercised a veto power over it. This a court cannot do.”).

    In discussing the function of the trial court when addressing a motion
for remittitur, the court has written:

         In requiring the entry of a remittitur to correct an excessive
      verdict or judgment, the general rule seems to be that the
      amount of the excess must clearly appear from the record,
      and then, if on the whole showing made by the record it
      appears that the damages awarded by the jury are excessive,
      the court may require a remittitur for the amount of the excess
      on condition that the judgment stand for the balance,
      otherwise a new trial will be granted.

          From a study of the foregoing cases, and many others of
      similar import, it is at once apparent that from the face of the
      record the amount of the excess cannot always be worked out
      with a mathematical precision, nor do we think the rule
      contemplates this. It is, of course, preferable, if capable of
      being determined to mathematical exactness, but may be
      arrived at through any process of reasoning actuated and
      controlled by the facts in the record and guided by an honest,
      sincere purpose to do justice to both parties to the cause in the
      lgiht [sic] of these facts.

De la Vallina, 107 So. at 339 (emphasis added) (internal citations omitted).
More recently, the court has written:

      The problem of determining whether a verdict is excessive is
      not so subjective as to prevent the formulation of standards
      to be used in the exercise of the court’s power. Nor should
      judges have the unfettered latitude for decision that might be
      afforded by the imprecision of the rules that they themselves
      formulated.



                                      5
         Where recovery is sought for a personal tort, . . . we cannot
      apply fixed rules to a given set of facts and say that a verdict
      is for more than would be allowable under a correct
      computation. In tort cases damages are to be measured by
      the jury’s discretion. The court should never declare a verdict
      excessive merely because it is above the amount which the
      court itself considers the jury should have allowed. The
      verdict should not be disturbed unless it is so inordinately
      large as obviously to exceed the maximum limit of a
      reasonable range within which the jury may properly operate.

Bould v. Touchette, 349 So. 2d 1181, 1184-85 (Fla. 1977).

    Arnold raises no contention on appeal that the trial court erred in
remitting the jury award for future medical expenses down to $30,000.
Instead, Arnold contends that the trial court erred in reducing the jury
awards for past and future pain and suffering. As to the reduction for past
pain and suffering, Arnold argues the record does not support the trial
court’s finding that (1) there was only limited evidence of Arnold’s pain and
suffering during the three years preceding trial, and (2) Arnold was able to
work fulltime and resume his normal activities. As to the reduction for
future pain and suffering, Arnold argues the record does not support the
trial court’s implied finding that his future microdiscectomy surgery would
resolve all of his future pain.

   Security argues that we should affirm the trial court because Arnold
has failed to demonstrate an abuse of discretion. More specifically,
Security argues that an award of $1,300,000 for pain and suffering shocks
the judicial conscience and has no rational relationship to the amount of
damages proved and the injury suffered. Security also argues that the
combination of evidence that the microdiscectomy surgery would relieve
Arnold’s pain and the need for a fusion surgery was highly speculative,
coupled with one hour of jury deliberation resulting in a verdict that
mirrors the damages sought by Arnold’s closing argument, demonstrates
that the jury (1) was motivated by passion or prejudice or (2) based its
award on matters outside the evidence or irrelevant matters. Finally,
Security contends that the comparison of the total pain and suffering jury
award in this case with the pain and suffering awards in three other
Florida cases and four out-of-state cases, as argued to the trial court,
establishes the reasonableness of the trial court’s decision on remittitur.

   Section 768.74, Florida Statutes (2013), sets forth the factors for a
court to consider when determining whether to grant a remittitur. Section
768.74(5) states:

                                     6
      (5) In determining whether an award is excessive or
      inadequate in light of the facts and circumstances presented
      to the trier of fact and in determining the amount, if any, that
      such award exceeds a reasonable range of damages or is
      inadequate, the court shall consider the following criteria:

      (a) Whether the amount awarded is indicative of prejudice,
      passion, or corruption on the part of the trier of fact;

      (b) Whether it appears that the trier of fact ignored the
      evidence in reaching a verdict or misconceived the merits of
      the case relating to the amounts of damages recoverable;

      (c) Whether the trier of fact took improper elements of
      damages into account or arrived at the amount of damages by
      speculation and conjecture;

      (d) Whether the amount awarded bears a reasonable relation
      to the amount of damages proved and the injury suffered; and

      (e) Whether the amount awarded is supported by the evidence
      and is such that it could be adduced in a logical manner by
      reasonable persons.

§ 768.74(5), Fla. Stat. (2013).

    In addition to the statutory factors to be considered, Florida Rule of
Civil Procedure 1.530(f) has been construed to impose a requirement that
an order granting remittitur provide “an explanation founded in the
record” for the reduction in the jury award. See Wackenhut Corp. v. Canty,
359 So. 2d 430, 434 (Fla. 1978) (“[T]o facilitate intelligent appellate review
of such orders the reasons which produced the need for the new trial [after
the trial court finds remittitur is appropriate] must be set forth in the
order.”); Zambrano v. Devanesan, 484 So. 2d 603, 608 (Fla. 4th DCA 1986)
(holding that an order granting new trial if plaintiff did not accept
remittitur amount did not comply with Rule 1.530(f) because it failed to
provide specific reasons for its decision to reduce the award of punitive
damages by a specific amount); Webb Auto. Distribs., Inc. v. Baxter, 574
So. 2d 1139, 1140-41 (Fla. 4th DCA 1991) (explaining that an order
granting remittitur but failing to explain the reasons for the amount of the
remittitur rendered the order “deficient,” citing Wackenhut and Zambrano).
Moreover, an order which “contains an incantation of conclusory
statements,” and merely tracks the language of section 768.74 as reasons
for the reduction and does not explain what in the record supports its
conclusion for the need and the amount of remittitur is likewise “deficient.”

                                      7
Zambrano, 484 So. 2d at 608-09; Wackenhut, 359 So. 2d at 434
(“[R]equiring a remittitur without an explanation founded in the record and
. . . without stating reasons capable of demonstration in the record or
beyond the record (such as influences which aroused the passion and
prejudice of the jury), the trial court left the District Court of Appeal to
grasp at straws when it reviewed the order.”).

   Rule 1.530(f) also states that “[i]f such an order is appealed and does
not state the specific grounds, the appellate court shall relinquish its
jurisdiction to the trial court for entry of an order specifying the grounds.”
Because the trial court in this case failed to explain what in the record
demonstrates the need for remittitur regarding the awards for pain and
suffering, and the reason for the amount chosen, we are unable to
determine if the trial court’s reduction is in accord with the law.

    For two reasons, we reject Security’s argument that the comparison of
pain and suffering awards in other cases shows a basis to affirm the trial
court. First, all but one of the comparison cases cited by Security were
decided between 1997 and 2003; the 2010 comparison case awarded a
much higher amount. The comparison data may be stale or not
representative. Second, Security argued to the trial court that the
comparison cases showed an average award of $375,000. The transcript
of the hearing indicates the trial court may have been contemplating a
higher amount than the comparison cases suggested, but the trial court
gave no insight as to what factors affected the court’s decision to arrive at
a total of $400,000. There is nothing in the record or written order that
makes it apparent why $200,000 is the appropriate amount, separately,
for both past and future pain and suffering.4

   There have been instances in which appellate courts have been able to
avoid the need for remand for findings of fact and explanations by the trial
court because a review of the record on appeal provided a sufficient
explanation. See Fordham v. Carriers Ins. Co., 370 So. 2d 1197, 1199 (Fla.
4th DCA 1979); Hawk v. Seaboard Sys. R.R. Inc., 547 So. 2d 669, 672 (Fla.
2d DCA 1989) (suggesting an independent review of the evidence may be
a basis to affirm a remittitur where the written order does not state specific
findings). However, the record in this case does not allow us to avoid such
a remand. Therefore, we reverse the trial court’s order and remand the
case for entry of an order which contains the necessary findings and


4 Given the number of years between the accident and trial (three years), as
compared to Arnold’s life expectancy post-trial (Arnold was 38 years old at the
time of trial), it seems unusual that one would conclude the amount awarded for
pain and suffering for both periods would be equal.

                                      8
conclusions to support the remittitur of the jury’s award for pain and
suffering in this case.

  Reversed and remanded with instructions.

DAMOORGIAN and FORST, JJ., concur.

                         *           *       *

  Not final until disposition of timely filed motion for rehearing.




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