VETERANS AUTO SALES AND LEASING COMPANY, INC., Appellant, v. Jenny POOLE, as Personal Representative of the Estate of Rebecca Ann Pritchard, deceased, Appellee, 649 So. 2d 264

PETERSON, Judge. The primary issue in this appeal is whether the trial court exceeded its authority by granting a motion for additur made by Jenny Poole, as personal representative of the Estate of Rebecca Ann Pritchard, deceased. The decedent was killed while a passenger on a motorcycle that collided with an automobile titled in the name of Veterans Auto Sales and Leasing, Inc. The personal representative sought damages for the decedent’s three children who, for various reasons, had not resided with their mother for significant periods of time.

That factor, and the relationship between the decedent and her children, became an important feature of the trial. The jury’s total award was $98,042.76, an award that favored Veterans’ suggestion in closing arguments of an award of approximately $100,000 rather than the personal representative’s suggestion of $1.1 million. The trial court granted the personal representative’s motion for additur by tripling the $80,000 awarded by the jury for pain and suffering. Veterans was given the option to try anew only the issue of damages if it declined to pay the additional award.

Two statutes must be considered in determining whether the trial court properly exercised its discretionary authority to triple the jury’s award.

Section 768.043, enacted in 1977, provides for remittitur and additur in actions arising out of the operation of motor vehicles.

Section 768.74, part of the Tort Reform Act of 1986, provides for remittitur and additur in any case where the trier of fact finds liability exists on the part of the defendant and a verdict is rendered awarding money damages to the plaintiff. This latter statute tracks nearly all of the language of

section 768.043.

Section 768.74, however, appears to give the trial court more discretion in altering a jury verdict.

Section 768.043 allows alteration of awards which the trial court finds to be “clearly excessive or inadequate in light of the facts and circumstances presented.”

Section 768.74 allows alteration where the court simply finds “that the amount awarded is excessive or inadequate.” Both statutes list several criteria for consideration when evaluating whether an award is excessive or inadequate. These factors include: (

a) whether the amount awarded is indicative of prejudice, passion or corruption on the part of the trier of fact; (

b) whether it clearly appears (the new

section 768.74 eliminates the word “clearly”) that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amount of damages recoverable; (

e) whether the amount awarded is supported by the evidence such that it could be adduced in a logical manner by reasonable persons. In the instant case the evidence reflects that the decedent bore three children in two unsuccessful marriages and that the children lived out of state with their fathers. Neither communication nor visitation between the mother and children was frequent or extended. Employment obligations did not appear to interfere with communication, although financial restraints may have been a factor.

The personal representative introduced a videotape of a clinical psychologist who testified that the death had a significant effect on the children and that extensive and expensive psychotherapy was needed. A private school was recommended for one child. The jury had the opportunity to compare that testimony with that of the children.

In view of the limited contacts the children had with their mother, the jury’s ability to observe the children’s demeanor, and the arguments of counsel as to the value to be placed on the pain and suffering of the children, it does not appear that the jury ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the damages. Neither does the award appear to be the product of corruption or passion.

While the trial court disagreed with the damages awarded by the jury and while we may agree that the award was unquestionably a low one, the award is nonetheless supported by the evidence and could be adduced in a logical manner by reasonable persons. The second district had the task of considering the appropriateness of a remittitur order in Hawk v. Seaboard System R.R., Inc., 547 So.2d 669 (Fla. 2d DCA), rev. dis’m, 549 So.2d 1014 (Fla.1989). The trial court ordered remittitur in a case involving a large monetary verdict for the loss of children in an auto-train accident.

The district court reinstated the jury verdict. Although Hawk involved remittitur, the comments, citations and reasoning in that opinion together with that of Judge Altenbernd’s concurring opinion are just as appropriate in this case involving additur. The majority opinion quoted the rule set forth by the supreme court in Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977); Hawk at 672. Like Hawk, Bould was a case in which the appellant thought the damages were excessive, but the concept is also appropriate in this additur case.

We find that the award in the instant case for pain and suffering was not “so inordinately [small] as obviously to [be below] the [minimum] of a reasonable range within which the jury may properly operate.” Bould at 1184-85. While

section 768.74 may give slightly greater discretion to the trial court to alter a jury verdict than that which existed previously, we find it was an abuse of discretion to alter the pain and suffering award even under

section 768.74. The trial court, however, correctly granted additur for the requested increase in support for the two younger children and for $10,599 for medical expenses. The jury had deducted $10,599 from its award for medical and funeral expenses because a credit was allowed on the decedent’s hospital bill for removal of the decedent’s organs.

Section 768.21(6)(b), Florida Statutes (1993) allows the personal representative to recover medical or funeral expenses due to a decedent’s injury or death. The personal representative is entitled to the gross amount of the hospital bill paid by or on behalf of the decedent without deduction for the post-mortem payment given because the decedent’s organs were removed for the use of others. The decedent’s estate should not be penalized for this gesture and the removal of the organs may be looked upon as a payment in kind to the extent of their value.

We therefore affirm the additur order as it relates to the support and medical expense award but reverse that portion of the additur affecting the pain and suffering awards. Additionally, we join in certifying to the supreme court the matter set forth in Judge Harris’ concurring opinion. ORDER VACATED; CAUSE REMANDED. DIAMANTIS, J., concurs. HARRIS, C.J., concurs and concurs specially, with opinion.