UNITED AUTOMOBILE INSURANCE COMPANY

v.

NIURKA GARCIA AS MOTHER AND LEGAL REPRESENTATIVE O

NIURKA GARCIA as mother and legal Representative of Roeio Fumes, Appellee. g ” ¢ .

MJS

‘ W v__RCF = - H 1//Isew MA IN THE cmcuir comm" OF THE 11'“

JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

* * * * *

TRIAL COURT

e

CASENO.: os-3449 cc * =1: ("(73 _ ‘*1 . §.»"‘:-w- H K» . ‘t _ e, |._,, ...‘ h‘ ea?a 3% .-1:» _ &a.‘,,. ‘ P * A57-It‘.--'7 '3 E-'-{L . - ~ .c. rqx :5: M “|\"l Q-_ ‘--w iv .‘=1-<-3 ‘ -4. /1 d ' eeeeeeewl _/ Opinion filed! '3§&"\';§- Q2014. u I ' On Appeal from the County Court, Miami-Dade County, Florida, LOURDBS SIMON, Judge. Lara J. Edelstein, Esq., for Apgieilant. Marlene S. Reiss, Esq., f01‘App611$€>. Before SANTOVENIA, FIGAROLA, and HANZMAN, JJ. SANTOVENTA, Judge. Page1of7 ‘ [*2] -14-'14 14;3g Fag» T—094 P0002/0010 F-‘:84 .,_.__.........._._._7 ._7 ..._.._ -.w._.—. — __' This is an appeal from an Order granting a motion for a new trial. We have jurisdiction. l The Plaintiff below (now Appellee) sued the Defendant-Insu1'e1' (now Appellant) for unpaid bills in the amount of $16,120 and the ease was tried before ajury. 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 ofthe policy deductible. However, during trial testimony was presented regarding the $1,000 deductible in the insurance policy. The Plaintiff (Appellee) (lid not move for a mistrial and the trial cotnt determined that the examinationshould 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 Page 2 of 7 vat.-.. -:-_¢,-,->_'. 4;;-.-‘_~=Ii .-la-___-_'=.».-. »<1.

5.

< » 1' t z l [*3] manifest weight of the evidence. Brown v. Estate ofA.P. Stuckey, 749 So. ‘Zd 490, 495 (Fla. 2000). However, the trialjudge must refiain from acting as an additional juror. Laskey v. Smith, 239 So. 2d 13, l⁴ (Fla. 1970). l If there is insufficient evidence to support the conclusion that the jury failed to follow the trial judge’s htstructions, then the jury’s verdict should stand. Mouser‘ & Mourcrj, Inc. v. Terry, 787 So. 2d 220, 221 (Fla. 2d DCA 2001). 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 ofreasonable medically necessary charges. It must be stressed that the jurywas 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 argu'ment.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? Page⁴ of7 [*4] U —l4-’l4l1l:39FRUl\l [of medically necessary charges for se1'vices]"'. 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 oou1t’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. t 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 0p1I110I1. - l The Appellanfis rnotion for attorney’s fees is DENIED as being premature because the trial court nmst first enter judgment in Appellant’s favor, which has not yet occurred. 'FIGAROLA and HANZMAN, JJ, Concur. HANZMAN, II, Concurs * Questions one through three of the verdietfornt evidence that question four of the verdict form refers to medically necessary charges for services: ‘ 1. Are any ofthe services related to the accident of September 27, 2007'? Yes - No 2. Are any ofthe services medically necessa1'y‘? 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 detennine a reasonable amount for the charge or charges, then proceed to question - ' Page 5 of7 _ T-094 P0005f0010 F-154 ._~=.\;‘u a '4 [*5] - 4114 1,439 Fg(]u- T—0l'i⁴ 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 alter applying the deductible, and thereby recover attorney’s fees -a 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. Pot 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 Page 6 of7 [*6] 04-14114 14=39 rR0u~ T—094 P0001/0010 F-184 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 “¢0fifusi0n” card if— and only if ~ the verdict eame in at $1,000.00 or less. And we will not authorize a new trial based on a game of“gotcha.” See S. C’. v. Dc-zp’t 0fChiId?'en & Families, 8'77 S0. 2d 831 (Fla. 4th DCA 2004). eemee §1'irx%e;§s§§;m ‘are eeweezaa. FR$(l‘GRfiAI-*4}? ‘T⁰

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