Unless you have been involved in a high stakes injury trial, you are probably unfamiliar with the terms “remittitur” and “additur.” They aren’t common knowledge, but they can have a substantial impact on any personal injury lawsuit.
In Florida, remittitur and additur come into play after the jury has rendered a verdict. Either side can ask the judge for a remittitur (a reduction of damages, usually by motion of the defense) or an additur (additional damages awarded, usually by motion of the plaintiff). The judge has discretion to decide whether such a request is appropriate. Some of the things the judge will consider include:
- Whether jurors obviously ignored evidence or facts presented at trial;
- Whether there is a reasonable connection between the evidence and amount of the verdict award;
- Whether the award was too small or too big because of some prejudice or bias;
- Whether the verdict is logical based on the evidence.
F.S. 768.74 is what governs judicial power on this. It’s an element of a case cannot be ignored, as it can significantly impact the amount you receive following a serious injury. Remittiturs and additurs can also be subject to appeal. Statutes on this power vary from state-to-state.
In a recent trucking accident case out of Tennessee dealt in part with a granted request for remittitur, and subsequent appeal.
According to court records from the Tennessee Supreme Court, it started with sequential rear-end collisions involving three tractor-trailers. Plaintiff’s tractor-trailer was rear-ended by another owned by defendant, which in turn was rear-ended by a third truck. Plaintiff, a 30-year-old trucker delivering air products, had slowed down for traffic backed up on an interstate, and both trucks behind him failed to stop.
Initially, plaintiff didn’t note much pain and even continued his delivery, despite being shaken. However, days later he began to suffer neck and back pain.
Plaintiff sued the drivers and owners of both vehicles, seeking compensation for personal injuries sustained in the crash. Before trial, plaintiff entered into a pre-trial settlement with the owner of the third truck and agreed not to pursue further action against that defendant. He later ended up requiring surgery. Although he did obtain workers’ compensation benefits (as he’d been on-the-job at the time of the crash), it didn’t cover all his injuries.
The case against the owner/ driver of the second tractor-trailer went to trial, and jurors handed down a verdict favoring the plaintiff in the total amount of $3.7 million – including $1.5 million for loss of earning capacity, $750,000 for physical pain and mental suffering, $750,000 for permanent injury and $750,000 for loss of life enjoyment.
Defendant filed a motion for a new trial or, in the alternative, a remittitur of damages. Trial court denied the motion for a new trial, but did agree to reduce the amount of damages from $3.7 million to $2.1 million. Plaintiff accepted the reduced award – but under protest – to avoid having a new trial.
He appealed, arguing damages should not have been awarded. Defendant argued reduced damages were appropriate because the pre-trial settlement with the other defendant violated public policy, and should have proportionately reduced the amount defendant had to pay. Plaintiff argued defendant waived any objections to his pre-trial agreement. The appellate court issued a divided opinion. The court held defendant had waived any objections to the pre-trial agreement with other defendant as they were not raised until after trial. However, appellate panel altered the remittutr of damages – keeping it at the $2.1 million amount, but increasing some elements and reducing others.
The state supreme court affirmed the appellate court’s decision about the pre-trial settlement not being against public policy, but ruled the court erred in it’s change of remittitur of damages. The case was remanded back to the trial court for further proceedings solely on the issue of damages.
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Borne v. Celadon Trucking Services, Inc., Oct. 20, 2017, Tennessee Supreme Court
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