Opinion
C057567
7-15-2009
JEFFREY SHINN, Plaintiff and Respondent, v. LARRY SHERRILL, Defendant and Appellant.
Not to be Published
This is an appeal from the trial courts order granting a new trial limited to noneconomic damages. Jeffrey Shinn sued Larry Sherrill for damages arising from a traffic accident. The jury found for Shinn and awarded damages for medical expenses and lost wages, but no noneconomic damages. The trial court granted a new trial solely on the issue of noneconomic damages unless Sherrill agreed to an additur of $5,000. Sherrill refused the additur and appeals from the new trial order, contending there is insufficient evidence that the jurys verdict was inadequate as a matter of law and that limiting the new trial to the issue of noneconomic damages was a prejudicial abuse of discretion. We find the order for a new trial was within the trial courts discretion and affirm.
FACTS
The collision occurred in October 2004. Larry Sherrill was driving a Ford F250 pickup truck north on Elk Grove-Florin Road. He was traveling at approximately 20 mph. He went through an intersection and hit a Ford Expedition SUV that was stopped. The Expedition was pushed forward and hit Jeff Shinns Dodge Ram 4x4 pickup. Shinn was stopped, with the truck in neutral and the brake on. He was leaning across the seat to pick up his coffee when he was hit. He was thrown against the seat and then forward.
After the accident, Shinn went to his chiropractor, Ron Martin. Martin diagnosed cervical sprain/strain, thoracic sprain/strain, and lumbar sprain/strain. Martin recommended Shinn take a week off work. Shinn continued to have problems so Martin extended the temporary disability to February 8, 2005, at which time he returned Shinn to work without restrictions.
In late January 2005, Martin referred Shinn to Christopher Molitor, a board certified orthopedic surgeon. Molitor assessed Shinn as having neck pain after an automobile accident. He found Shinns neck was objectively sound and there was nothing to keep Shinn from working.
Shinn is a heavy equipment operator; he usually drives a bulldozer. In 2004, he was working for Teichert Construction. He belonged to a union and also worked for other companies. Shinns work was seasonal and dependent on the weather. He last worked October 17, 2004, a few days before the accident. He returned to work in April 2005. There were gaps in his work history from April to June in 2004; he quit Teichert in June 2005 and returned in July 2006.
Shinn continued to see Martin for treatment in 2005; he still had chronic pain. In September 2005, Martin referred Shinn for an MRI. The MRI showed no injury. By December 2005, Martin assessed Shinn as having maximum medical improvement but sustained residuals that will cause pain and stiffness. Shinn would need future care.
At trial, Sherrill conceded liability. The issues were the extent of Shinns injuries and the amount of damages. The experts agreed Shinn had been injured in the accident and two to three months off work was reasonable. Shinn claimed that due to the accident he missed work for three months thereafter and also July to December of 2005. With benefits he made $48 an hour. In addition to lost wages, he lost pension and medical benefits. The cost of treatment from Martin alone was $6,786; he had total medical expenses of $11,000. Shinn also sought unspecified noneconomic damages for pain and suffering.
The defense contended it was a minor accident with minor injury and Shinn was trying to cash in. The defense stressed Shinn had a prior history of neck and back pain and often saw a chiropractor in the years before the accident, including the week before, yet he failed to disclose either prior problems or treatment in discovery. Shinns work was seasonal and he failed to establish he would have been working the period after the accident. His lack of injury was shown by the fact that he continued to show horses. The defense experts claimed only six to nine chiropractic visits were reasonable treatment. The defense argued for a couple of hundred or a thousand dollars for pain and suffering and no wage loss.
The jury returned a special verdict finding Sherrills negligence was a cause of Shinns injuries. The jury awarded Shinn $5,839 in medical expenses, $5,775 in lost income, $1,504.44 in lost pension benefits, and nothing for lost medical benefits or noneconomic damages.
Shinn moved for a new trial on the basis of jury misconduct, inadequate damages and insufficient evidence. Shinn argued there was evidence of his pain and suffering and the jury failed in its duty to award damages for pain and suffering. Shinn asked the court to consider an additur of $15,000 to $40,000.
The trial court granted the motion for a new trial limited to the issue of noneconomic damages unless Sherrill consented to an addition of $5,000 for noneconomic damages. The court found the jury ignored either the evidence or the instructions, or both, and rendered an inadequate damage award in light of the uncontradicted evidence. The jury found Shinn sustained an injury that required medical care and required him to be off work, and the jury awarded damages for medical expenses, lost wages and lost pension benefits. Martin testified Shinns pain was sufficient to disable him for three months and the defense experts agreed it was reasonable for Shinn to be off work for two to three months. Shinn testified his injuries and pain prevented him from working as a heavy equipment operator and disrupted his family life, causing substantial stress.
Sherrill objected to the amount of the additur as it would result in a verdict that barely exceeded the $17,208 arbitration award and thus would permit Shinn to recover costs and preclude Sherrill from recovering costs under Code of Civil Procedure section 1141.21. Sherrill also argued limiting the new trial to noneconomic damages would give Shinn an unfair advantage and asked the court to reconsider its ruling.
The court denied the request for reconsideration and Sherrill appealed.
DISCUSSION
I. Standard of Review
The parties disagree as to the standard of review because they disagree as to the proper inquiry of this court. Generally, the trial courts ruling on a new trial motion is reviewed for an abuse of discretion. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) Sherrill contends the trial court abused its discretion because there was insufficient evidence to establish that the jurys verdict was inadequate as a matter of law. This is the proper inquiry in an appeal from a judgment that awarded no general damages. (See, e.g., Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 936.) That is not the situation here. Although Sherrill purported to appeal from both the judgment and the order for a new trial, his contentions on appeal address only the order for a new trial. In this situation, the standard of review is clear.
Code of Civil Procedure section 657, subdivision 5, provides a new trial may be granted for excessive or inadequate damages. An order granting a new trial on inadequate damages must state this ground in the order and it is conclusively presumed the order was made only for the specified reasons. (Code Civ. Proc., § 657.) "[A]nd such order shall be reversed as to such ground only if there is no substantial basis in the record for any such reasons." (Ibid.)
The California Supreme Court has discussed the role of an appellate court in reviewing an order granting a new trial for inadequate damages: "Thus, we have held that an order granting a new trial under section 657 `must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial courts] theory. [Citation.] Moreover, `[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . . [Citation.] In other words, `the presumption of correctness normally accorded on appeal to the jurys verdict is replaced by a presumption in favor of the [new trial] order. [Citation.]" (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)
In ruling on a motion for a new trial, the trial court sits as an independent trier of fact and thus its factual determinations are entitled to the same deference that an appellate court would normally accord the factual determinations of a jury. (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) "The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jurys verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons. [Citation.]" (Ibid.)
Sherrill does not dispute the adequacy of the trial courts statement of reasons for ordering a new trial. Therefore, we consider only whether substantial evidence in the record supports those reasons.
II.
The Trial Court Did Not Abuse Its Discretion in Granting a New Trial
The parties argue whether this case is more similar to Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555 or Dodson v. J. Pacific, Inc., supra, 154 Cal.App.4th 931. In Miller, on which Sherrill relies, plaintiff claimed her arm was severely burned by an electric shock. The jury awarded her only the exact amount of medical expenses and she moved for a new trial on the basis of inadequate damages. The trial court denied the motion and the appellate court affirmed. The court noted there was evidence from which the jury could have concluded plaintiff suffered no injury. "[I]t seems entirely probable that the jury felt that although plaintiff was entitled to no more than nominal damages, the kindest disposition of the case was to award to her an amount at least equivalent to her medical bills. Obviously the trial court so appraised the situation and permitted the judgment to stand." (Miller v. San Diego Gas & Electric Co., supra, at p. 560.)
In Dodson, which Shinn contends is on point, again the jury awarded plaintiff only economic damages, plaintiff moved for a new trial and the trial court denied the motion. The appellate court held, "where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that defendants negligence was a cause of plaintiffs injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law." (Dodson v. J. Pacific, Inc., supra, 154 Cal.App.4th at p. 933.)
We find neither case dispositive because each arises in a different procedural context than that presented here. In Miller and Dodson the trial court denied a motion for a new trial; the issue was whether the judgment was inadequate as a matter of law. Here the trial court granted the motion for a new trial; accordingly, the issue is whether substantial evidence supports the trial courts reasons. It does.
As the court stated in its ruling, all of the experts testified Shinn was injured in the accident and it was reasonable for him to take two to three months off work. Martin documented that Shinn continued to suffer pain after the accident. Shinn testified he had constant pain after the accident and he was not able to perform his usual chores or play with his children. This evidence is sufficient to support the trial courts order for a new trial. Indeed, the defense appeared to concede there was some pain and suffering; in closing argument counsel told the jury that Shinn was entitled to a modest amount for pain and suffering.
III.
The Trial Court Did Not Abuse its Discretion in Limiting the New Trial to Noneconomic Damages
Sherrill contends the trial court abused its discretion in limiting the new trial to the issue of noneconomic or general damages. First, he contends if Shinn or the trial court believed the jury failed to follow the instructions, the matter should have been returned to the jury with instructions for further deliberation. This contention has no merit.
Under Code of Civil Procedure section 619, a verdict that is "informal or insufficient, in not covering the issue submitted," may be corrected under advice of the court or the jury may be sent out again for further deliberations. The court proceeded under this section in Sherwood v. Rossini (1968) 264 Cal.App.2d 926. Sherwood was a case for damages from an automobile accident where liability was conceded. The jury returned a verdict assessing damages as "no sum." The court asked the jury if it understood it was to find some damages and a juror responded they were confused about future damages. The court explained the presentation presupposed a verdict in some amount and sent the jury out to deliberate. Later that day, the jury returned a verdict of $3,000. (Id. at p. 928.) On appeal, plaintiff contended the court erred in returning the jury for further deliberations. The appellate court affirmed. In finding the "no sum" verdict insufficient under Code of Civil Procedure section 619, the court distinguished the situation where the damage award was inadequate; in that situation "the verdict is erroneous, and the proper remedy is a new trial [citation]." (Id. at p. 929.) Here the jury did not fail to assess any damages, but, in the trial courts opinion, inadequate damages. As stated in Sherwood, the proper remedy was a new trial.
Second, Sherrill contends the issues of general and special damages are intertwined and cannot be separated; limiting the new trial to general damages will prejudice him. Sherrill contends he will be prejudiced because the same facts that give rise to Shinns claimed injuries and special damages help develop the facts surrounding his claim for general damages. In a new trial only on general damages, the jury "will lose sight of the bigger picture" and not see the inconsistencies in Shinns case. Sherrill fails to show prejudice.
"A trial court ruling on a new trial motion may order a new trial on a limited issue if a trial on that issue alone would not prejudice any party. [Citations.]" (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696.) "The primary reasons to order a new trial limited to an issue, or issues, that can be determined separately without prejudice to any party are to relieve the trial court and the parties of the unnecessary burden of relitigating issues that have been decided, and to respect and preserve the results of a trial on issues as to which the appellant has not shown error. [Citations.] Whether an issue can be tried separately without prejudice to any party depends on the particular circumstances of each case. [Citation.] Any doubts as to whether a new trial limited to damages is appropriate should be resolved in favor of a complete new trial. [Citations.]" (Id. at pp. 696-697.)
In Bullock, the court found instructional error as to punitive damages and remanded for a new trial limited to the amount of such damages. (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 696.) Philip Morris sought a new trial on liability as well, arguing the second jury might base its award on conduct the prior jury did not find committed with oppression, fraud, or malice. (Id. at pp. 673, 699.) The court found although much of the same evidence would again be presented in the second trial, a limited retrial would result in some time savings and neither party was entitled to reduce or increase the amount of compensatory damages and the findings of liability, and oppression, fraud or malice should be undisturbed. (Id. at pp. 700-701.) "The trial court in the new trial, in the exercise of its discretion, should admit evidence relevant to determining the amount of punitive damages in the same manner that a trial court in a new trial limited to the amount of compensatory damages should admit evidence relevant to determining that amount." (Id. at p. 701.) If the jury awarded an excessive amount, there was an adequate remedy by way of a new trial motion or an appeal; limiting the new trial to the amount of punitive damages did not prejudice Philip Morris. (Ibid.)
The same reasoning applies here. The trial court in the new trial will have discretion to admit evidence relevant to the issue of noneconomic damages and if the amount awarded is excessive, Sherrill has an adequate remedy.
Finally, Sherrill contends the trial court abused its discretion because the circumstances indicate the verdict was the result of compromise.
"The question whether a limited new trial is appropriate typically arises in cases involving excessive or inadequate compensatory damages. [Citation.] A new trial limited to determining the amount of compensatory damages ordinarily is proper unless the record indicates that the finding of liability resulted from a compromise verdict, in which case the new trial should encompass both liability and damages. [Citations.]" (Bullock v. Philip Morris USA, Inc., supra, 159 Cal.App.4th at p. 697.)
Here the verdict cannot be seen as a compromise between liability and damages because Sherrill conceded liability; the only issue was damages. Nonetheless, Sherrill contends the jurys verdict awarding no general damages indicates a compromise in the damage award and therefore a new trial should be granted as to all damages. We disagree.
First, this is not a case where the issue of damages was close. (See Leipert v. Honold (1952) 39 Cal.2d 462, 467 [abuse of discretion to limit new trial to damages where damage award inadequate, issue of liability close, and other circumstances indicate verdict result of prejudice, sympathy or compromise].) While the parties hotly disputed the amount of damages, Sherrill effectively conceded there was some damage. His experts agreed Shinn was injured and it was reasonable to take at least two months off work.
Second, the trial court expressly rejected this view of the verdict. The courts take on the verdict "was that the jury just absolutely totally and completely disregarded anything I told them. All they wanted to do was get out of here; the faster they could do it, the better. Ive never seen a jury like that." As discussed above in reference to the standard of review, we defer to the trial court because it is in the best position to assess the reliability of the jurys verdict. (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.)
DISPOSITION
The judgment (order for new trial) is affirmed. Shinn shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur:
SIMS, Acting P. J.
HULL, J.