Opinion
No. 4-033 / 03-0766
Filed February 27, 2004
Appeal from the Iowa District Court for Woodbury County, Jeffrey Neary, Judge.
The defendant in a personal injury and property damage action appeals from a district court ruling that conditionally granted the plaintiff's motion for a new trial. AFFIRMED; REMANDED.
Michael Frey of Hellige, Frey Roe, Sioux City, for appellant.
Alan Fredregill of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Defendant Justin Giersdorf appeals from the district court's post-trial ruling granting plaintiff Vicky Lohry's motion for a new trial. The district court's ruling was conditioned on Giersdorf's rejection of an additur to the jury's award of damages for past and future loss of bodily function. Upon our review for the correction of errors at law, Iowa R. Civ. P. 6.4, we affirm the district court.
In August 1997, Vicky Lohry and Justin Giersdorf were involved in a two-car accident. In July 1999 Lohry sued Giersdorf seeking to recover for personal injuries and property damage. Giersdorf admitted fault, and the issues of proximate cause and damages were tried to a jury in March 2003. Over Lohry's objection, Giersdorf was allowed to testify, in general terms, about his military service from 1998 to the time of trial.
The jury returned a special verdict in Lohry's favor. It awarded her $12,728 in damages as follows:
1. Past medical expenses. $3,428.
2. Future medical expenses. $0
3. Past pain and suffering. $2,100.
4. Future pain and suffering. $4,000.
5. Past loss of time from business. $0.
6. Past loss of bodily function. $200.
7. Future loss of bodily function. $0.
8. Loss of market value for vehicle. $3,000.
Lohry filed a new trial motion, arguing the damage award was unconscionably low, and affected by improper evidence of Giersdorf's military service. The district court concluded the verdict amounts were not a result of prejudice from the military service testimony, but determined the awards for past and future loss of bodily function were lacking in evidential support and "flagrantly inadequate and . . . so out of reason as to shock one's sense of justice." The court relied on the fact that Lohry had admitted evidence through her treating chiropractor of a six-percent whole body impairment, which was "largely uncontested by the Defendant except for the manner and timing in which the rating was obtained." After concluding the evidence at trial supported larger damage awards for both items, the court ordered a new trial, but conditioned it on Giersdorf's rejection of an additur of $4,000 to the past loss of function award, and $6,000 to the future loss of function award. Giersdorf did not accept the additur, and appealed. On appeal, he argues substantial evidence supported the two awards, and thus in conditionally ordering a new trial the district court substituted its own judgment for that of the jury.
The district court has considerable discretion in ruling on a new trial motion premised on allegedly inadequate damages. See Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999). The court must consider whether the verdict is supported by sufficient evidence:
"[A] verdict will not be set aside or altered unless it is, (1) flagrantly excessive or inadequate; or (2) so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is the result of passion, prejudice or other ulterior motives; or (4) is lacking in evidential support.
If the verdict has support in the evidence the others will hardly arise, if it lacks support they may all arise. The real question in most cases . . . is the amount and sufficiency of evidence to support the award made. Certainly where the verdict is within a reasonable range as indicated by the evidence the courts should not interfere with what is primarily a jury question."
Cowan v. Flannery, 461 N.W.2d 155, 158 (Iowa 1990) (citations omitted). However, the determinative question is always "`whether under the record, giving the jury its right to accept or reject whatever portions of the conflicting evidence it chose, the verdict effects substantial justice between the parties.'" Id.; see also Iowa R. App. P. 6.14(6)( c).
We are slower to interfere with a grant of a new trial motion than with its denial, and will reverse the court's decision only when an abuse of discretion is shown. See Winchester v. Strottman, 535 N.W.2d 480, 481 (Iowa Ct. App. 1995). We find such abuse if the court exercised its discretion based on clearly unreasonable grounds or to a clearly unreasonable extent. Kalvik ex rel. Kalvik v. Seidl, 595 N.W.2d 136, 140 (Iowa Ct. App. 1999). In reviewing the unique circumstances of each case, this court must afford weight to the fact the district court's decision was aided by seeing and hearing the witnesses, observing the jury, and having all incidents of the trial before it. Id.
The record in this matter does contain evidence that would support loss of function awards larger than those awarded by the jury. Lohry's chiropractor assessed her as having a six-percent permanent whole-body impairment. In addition, Lohry testified that up to April 1998, some eight months following the accident, her injuries prevented her from performing and/or impaired her ability to perform a number of work-related and home-care tasks. She also testified that she had not yet returned to full functioning. Lohry acknowledged her injuries no longer prevented her from performing any specific job or chore, but indicated she was able to complete certain tasks only by altering the manner in which she approached the tasks and the pace at which she completed them.
Giersdorf, however, contends the record contained conflicting evidence on the questions of past and future loss of function, and thus the jury's awards were supported by substantial evidence. See Cowan, 461 N.W.2d at 158. He points to certain facts in the record, and certain minor inconsistencies in Lohry's testimony, that the jury might have reasonably relied on to reject all or part of the evidence of Lohry's past and future loss of function. We agree with Giersdorf that credibility assessments and the weighing of the evidence were matters for the jury, and the jury could have rejected even uncontroverted testimony. See Seastrom v. Farm Bureau Life Ins. Co., 601 N.W.2d 339, 346 (Iowa 1999); Jackson v. Roger, 507 N.W.2d 585, 589 (Iowa Ct. App. 1993). Were we sitting as the trial court in this matter, we might well have concluded that the verdict awards were within the reasonable range presented by the evidence. See Cowan, 461 N.W.2d at 158.
Geirsdorf highlights the fact the impairment rating was done for the purpose of litigation and some three years after Lohry last sought treatment; Lohry's admission that she was able to resume all her former activities by at least April 1998; the fact Lohry alleged at trial, but not in her pre-trial deposition, that her injuries had interfered with her ability to walk her dog; and that much of Lohry's testimony focused on her pain while doing certain activities, rather than actual physical impairment.
However, the question is not what this court would have done had it been standing in the district court's stead. Rather, the question is whether the district court was clearly unreasonable in concluding the verdict awards lacked evidential support, were flagrantly inadequate, and shocking to one's sense of justice. Based on the evidence presented by Lohry, and the nature of the facts Giersdorf relies on to impugn that evidence, we conclude it was not. We therefore affirm the district court's decision to conditionally grant a new trial, and remand this matter for proceedings not inconsistent with this opinion.
Lohry argues a new trial was further warranted because Giersdorf's testimony regarding his military service so inflamed the jury's patriotic zeal that it wrongfully reduced her loss of function damages. See Cowan, 461 N.W.2d at 158. Lohry also contends the district court abused its discretion in admitting this testimony over her objection, because it was both irrelevant and unduly prejudicial. See Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002) (reversing evidentiary rulings only upon a showing court abused its broad discretion, to prejudice of complaining party). Because this issue could reoccur in a new trial we address, and reject, both arguments. See Johnston Equip. Corp. v. Industrial Indem., 489 N.W.2d 13, 16 (Iowa 1992) ("a successful party need not cross-appeal to preserve error on a ground urged but ignored or rejected in trial court"). Giersdorf's testimony was not prejudicial to Lohry. It did not attempt to portray Giersdorf as a "war hero," but rather was a succinct, unembellished recitation of his location and activities since the accident. The district court did not abuse its discretion in admitting this testimony.
AFFIRMED; REMANDED.
Miller and Hecht, JJ., concurring; Zimmer, P.J., concurring in part; dissenting in part.
I concur with the majority's rejection of Lohry's argument that a new trial is warranted because Giersdorf's testimony regarding his military service had the effect of influencing the jury by passion and prejudice. Giersdorf gave a succinct and unembellished account of his activities since the accident. His testimony helped explain that the delay in bringing this case to trial was in large part due to his service in the military. Nothing in the record suggests that Giersdorf attempted to portray himself as a "war hero" in an effort to prejudice the jury's consideration of this case. I agree with the majority's conclusion that this testimony was not prejudicial to Lohry. The district court did not abuse its discretion in admitting this evidence and properly concluded that the evidence was not a basis for granting a new trial.
I respectfully dissent from the majority's decision to affirm the district court's ruling granting of a new trial on other grounds. I believe the evidence regarding the plaintiff's loss of past and future bodily function was conflicting. Although the record contains evidence which would support a higher award for those items of damage, the jury was free to reject that evidence in settling a disputed fact question. I do not find the jury's award flagrantly inadequate and it does not shock my conscience. I believe there is substantial evidence in the record to support the jury's verdict and I see no reason to disturb it. Accordingly, I would find the trial court acted unreasonably in granting a new trial.