Opinion
Case No. 2D99-2584.
Opinion filed September 27, 2000.
Appeal from the Circuit Court for Hills borough County; Sam D. Pendino, Judge.
David H. McClain of McClain Associates, P.A., Tampa, for Appellant.
James W. Holliday and Timothy F. Prugh of Prugh and Associates, P.A., Tampa, for Appellee.
The Florida Department of Transportation (DOT) appeals from the trial court's order granting a new trial in this personal injury action. DOT argues that the record supports the jury's finding of no damages as a result of the accident and, therefore, the trial court erred in overturning the verdict. We agree and reverse.
On May 22, 1997, the appellee, Errol Rosario, was stopped in traffic on State Road 60 in Brandon when his vehicle was struck in the rear in a chain-reaction accident caused by a vehicle owned by DOT. Rosario sued DOT, claiming that he had sustained back injuries as a result of the accident. The trial court granted summary judgment on the issue of liability in Rosario's favor, and the case went to trial on the issues of causation and damages.
Rosario had suffered from back problems prior to the 1997 accident. He had a laminectomy in 1991 and was treated for back pain in 1993. He again sought treatment for his back after he suffered a serious one-car accident in 1995. In obtaining treatment for the 1997 accident involving DOT, he neglected to inform his treating physicians of the 1995 accident or the 1993 treatment. He also neglected to inform DOT in his answers to interrogatories of twenty-four treatments for back pain by Dr. Keller in 1993-1995. At trial, his explanation was that he had forgotten about the treatments.
Rosario's doctors testified that Rosario suffered a permanent injury in the 1997 accident. DOT's expert testified that he did not. DOT showed the jury a surveillance videotape of Rosario lifting and carrying produce in his delivery job. At the close of the evidence, the court granted Rosario a directed verdict as to the reason ableness and necessity of his medical expenses, leaving only the issue of causation for the jury. The jury found that DOT's negligence was not a legal cause of damage to Rosario and that Rosario did not suffer a permanent injury as a result of the accident. The trial court granted Rosario a new trial on the issue of damages, finding that "it was undisputed that the Plaintiff did suffer some damages from this collision" and that the verdict was against the manifest weight of the evidence.
Rosario argues that he is entitled to at least nominal damages because he incurred expenses for diagnostic testing and treatment for the aggravation of his preexisting back condition. He relies on Sparks-Book v. Sports Authority, Inc., 699 So.2d 767 (Fla. 3d DCA 1997), for the proposition that he was entitled to the cost of diagnostic testing to determine whether the accident caused his injuries notwithstanding the jury's finding of no causation. He also cites Short v. Ehrler, 510 So.2d 1110 (Fla. 4th DCA 1987), for the proposition that the aggravation of his preexisting condition required at least an award of nominal damages.
These arguments do not support Rosario's position because of the manner in which the case was tried and submitted to the jury. Rosario never pleaded, argued, or presented evidence of costs related to diagnostic testing, nor did he request a jury instruction on such damages. The verdict form, as submitted and approved by counsel for both parties, asked in question one as follows:
1. Was the negligence of Defendant DEPARTMENT OF TRANSPORTATION a legal cause of damage to Plaintiff ERROL ROSARIO?
YES ________ NO ________
If your answer to question 1 is YES, please answer question 2. If your answer to question 1 is NO, your verdict is for the defendant, and you should not proceed further, except to date and sign this verdict from and return it to the courtroom.
(Emphasis supplied.) By agreeing to the verdict form and failing to request an instruction on nominal damages, Rosario waived the issue. The jury simply followed the court's instructions and, upon answering question one in the negative, skipped over the issue of damages and signed and returned the verdict. Rosario also failed to preserve these issues for review because he did not request the trial court to reinstruct the jury and send it back for further deliberations. See Beverly Health Rehab. Servs., Inc. v. Freeman, 709 So.2d 549 (Fla. 2d DCA), review denied, 719 So.2d 892 (Fla. 1998).
The record reflects that: Rosario had preexisting back problems for which he had surgery and extensive treatments; he showed a lack of candor with his treating physicians and in his answers to interrogatories; a videotape depicted his on-the-job physical capabilities; and expert medical opinions conflicted as to the issue of causation. Based on this substantial competent evidence and the instructions presented to it, the jury could conclude that Rosario suffered no damages as a result of the 1997 accident. Thus, because the jury's verdict was not against the manifest weight of the evidence, we determine that the trial court abused its discretion in granting the motion for a new trial. See Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999); Smith v. Brown, 525 So.2d 868 (Fla. 1988).
Reversed.
FULMER and WHATLEY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.