         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


LARS PAUL GUSTAVSSON,

             Appellant,

 v.                                                             Case No. 5D16-1442

CAROL MARIE HOLDER AND
SEAN LEONARD BECK,

             Appellees.

________________________________/

Opinion filed January 5, 2018

Appeal from the Circuit Court
for Volusia County,
Sandra C. Upchurch, Judge.

Nancye R. Jones and Mark A. Matovina, of
Politis & Matovina, P.A., Port Orange, for
Appellant.

Elizabeth C. Wheeler, of Elizabeth C
Wheeler, P.A., Orlando, for Appellees.


EGAN, R., Associate Judge,

      Lars Paul Gustavsson appeals the denial of his motion for additur or new trial

following judgment entered in his favor, as well as the denial of his subsequent motion for

reconsideration. Gustavsson also argues the trial court abused its discretion by declining

to grant a new trial on damages and liability based on a compromised verdict. We reverse

on the issue of past non-economic damages only and affirm on the issue of future non-
economic damages. We also affirm on the issue of liability based on a compromised

verdict because Gustavsson did not preserve that issue for appeal.

       Gustavsson sued appellees Carol Marie Holder and Sean Leonard Beck after

being struck and injured as a pedestrian by a vehicle owned by Holder and driven by

Beck.1 With respect to damages, the parties did not dispute that Gustavsson sustained a

serious and permanent injury as a result of the accident. He sustained a displaced right

femur fracture that required surgical repair with a titanium rod. He also suffered a facial

laceration, which required plastic surgery that resulted in permanent facial scarring.

Recovery from the leg injury did not go well. Over the three years following the accident,

Gustavsson was diagnosed with three MRSA infections of the leg that required at least

four additional surgical procedures, including irrigation and debridement of the infected

tissue and removal of the titanium rod, which was believed to be the source of the

infection. During this time, Gustavsson spent more than eighteen weeks in the hospital,

and at trial, he claimed $507,874.95 in past medical expenses.

       All of his treating physicians agreed that the subject motor vehicle accident was

the cause of the infection and that the initial injury, as well as the subsequent infections,

were very painful for Gustavsson. In addition, orthopedic surgeon Thomas Broderick,

M.D., performed three compulsory medical examinations on behalf of Beck, culminating

in a final written report in January 2015. According to Dr. Broderick, Gustavsson's right

knee had stabilized by that time but had a permanent decrease in motion. The right thigh

had suffered significant atrophy, and the knee examination was consistent with chronic

inflammation. Dr. Broderick agreed that the leg injury would have been painful, opined



       1   Carol Marie Holder, Beck’s mother, does not participate on appeal.


                                             2
new trial is granted or denied 'absent fraud or clerical error' . . . 'the court is without

authority to entertain or consider a petition for re-hearing addressed to such an order'");

Owens v. Jackson, 476 So. 2d 264, 264 (Fla. 1st DCA 1985). Specifically, an order

granting or denying a new trial confers a substantive right and is not interlocutory in

nature. Burton, 314 So. 2d at 137; Owens, 476 So. 2d at 264. Accordingly, unlike an

interlocutory order, it is not subject to modification. Huffman v. Little, 341 So. 2d 268, 269

(Fla. 2nd DCA 1977).

       With respect to the issue of additur or new trial based on inadequate non-economic

damages awarded in a motor vehicle accident case, section 768.043, Florida Statutes

(2015), provides that courts "shall consider" the following factors for "determining whether

an award is clearly 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":

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

              (b) Whether it clearly appears that the trier of fact ignored the
                  evidence in reaching the 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 or conjecture.

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

              (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.




                                              5
              (a) The jury found that Defendant's negligence was the legal
                  cause of injury and or loss to Plaintiff. However, the jury
                  failed to award the damages for any future medical
                  expenses based on the manifest weight of the evidence;

              (b) The jury found that Defendant's negligence was the legal
                  cause of injury or loss to Plaintiff, however the jury award
                  for past pain and suffering damages was inadequate
                  based on the manifest weight of the evidence;

              (c) The jury found that Defendant's negligence was the legal
                  cause of injury and or loss to Plaintiff, however the jury
                  award for future pain and suffering damages was
                  inadequate based on the manifest weight of the evidence;

              (d) The jury misconceived the merits of the case relating to
                  the amount of damages recoverable.

Gustavsson made no mention of a request for new trial based on the issue of liability due

to a compromised verdict.

       The trial court denied the motion without a hearing, and Gustavsson then moved

for reconsideration on similar grounds, again without reference to a compromised verdict.

The trial court allowed a hearing on the motion, where Gustavsson mentioned for the first

time the issue of a compromised verdict as follows:

              [I]f there was a hotly contested liability issue then you get a
              new trial on damages and liability. And there's no question
              this one was hotly contested. In fact, my opinion is, that this
              was a compromised verdict because of the 99 to 1 percent,
              somebody was holding out, and they compromised the one
              percent.

The trial court denied reconsideration.

       We find that Gustavsson did not preserve the issue of new trial on liability based

on a compromised verdict because the initial denial of the motion was jurisdictional and

not subject to reconsideration or modification. See State v. Burton, 314 So. 2d 136, 137

(Fla. 1975) (approving the district court's correct legal conclusion that "when a motion for



                                             4
new trial is granted or denied 'absent fraud or clerical error' . . . 'the court is without

authority to entertain or consider a petition for re-hearing addressed to such an order'");

Owens v. Jackson, 476 So. 2d 264, 264 (Fla. 1st DCA 1985). Specifically, an order

granting or denying a new trial confers a substantive right and is not interlocutory in

nature. Burton, 314 So. 2d at 137; Owens, 476 So. 2d at 264. Accordingly, unlike an

interlocutory order, it is not subject to modification. Huffman v. Little, 341 So. 2d 268, 269

(Fla. 2nd DCA 1977).

       With respect to the issue of additur or new trial based on inadequate non-economic

damages awarded in a motor vehicle accident case, section 768.043, Florida Statutes

(2015), provides that courts "shall consider" the following factors for "determining whether

an award is clearly 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":

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

              (b) Whether it clearly appears that the trier of fact ignored the
                  evidence in reaching the 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 or conjecture.

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

              (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.




                                              5
         Here, considering these factors, we conclude that the trial court erred by not

granting additur or a new trial on the issue of past non-economic damages. The jury

initially awarded no non-economic damages despite: (1) the unanimous opinion of all

physicians involved that Gustavsson sustained a serious and painful injury that resulted

in numerous MRSA infections requiring more than four months of hospitalization; (2)

being instructed that Gustavsson had sustained a permanent injury as a matter of law;

and (3) awarding over half a million dollars in past medical expenses. After the trial court

instructed the jury to award damages for pain and suffering, it deliberated for only eleven

more minutes before awarding $1000 for past non-economic damages and $1000 for

future non-economic damages. Under the facts of this case, the award for past non-

economic damages was inadequate as a matter of law and subject to additur or a new

trial.

         This case is similar to Sanchez v. Hernandez, 971 So. 2d 944, 945-46 (Fla. 3d

DCA 2007), in which the defendant's vehicle struck the plaintiff as he crossed a road,

resulting in multiple surgeries to the left knee, recurring pain, and a 15 to 20% permanent

disability. The jury awarded past medical expenses of $55,402.43, future medical

expenses of $16,000, and past wage loss of $5000, but only $702.21 for past non-

economic damages and the same amount for future non-economic damages. Id. at 946.

The Third District Court of Appeal held, "Unlike the disparity between past and future

components of damages considered in [Allstate Insurance Co. v. Manasse, 707 So. 2d

1110 (Fla. 1998)], and other cases cited by the defendants, the jury's awards to Sanchez

for non-economic damages simply have no explanation in the record." Id.




                                             6
       Here, the evidence of past non-economic damages was both overwhelming and

undisputed. Under the facts of this case, the jury's verdict on such damages has no

explanation in the record, and it is apparent that the trier of fact ignored the evidence in

reaching the verdict or misconceived the merits of the case relating to the amount of past

non-economic damages recoverable. Likewise, the amount of past non-economic

damages awarded bears no reasonable relation to the substantial amount of economic

damages proved and the injury suffered.2

       Accordingly, we reverse the denial of the motion for additur and remand for either

an additur award or a new trial on past non-economic damages only in accordance with

section 768.043, Florida Statutes.

       REVERSED and REMANDED.

COHEN, C.J. and EISNAUGLE, J., concur.




       2We do not disturb the jury’s verdict or the trial court’s ruling regarding future
economic or non-economic damages because future damages are, by nature, less certain
than past damages. See Manasse, 707 So. 2d at 1111. In this case, the jury made no
award for future medical expenses, and Gustavsson testified the pain had improved and
there were periods in between surgeries where he indicated no pain.


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