Make sure you ask for additur – if it is granted and the defense denies it, you get a new trial.

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August 22, 2017
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August 28, 2017

Make sure you ask for additur – if it is granted and the defense denies it, you get a new trial.

Thomas Wayne Akers II, and his wife Cassandra Akers, filed a personal injury action against Donald Emmons, as a result of an automobile accident. Mr. Akers changed his existing negligence action, from a separate automobile accident, to include a claim against Emmons. Mr. Akers sought damages for bodily injury, medical expenses, and loss of earnings, as well as damages for the aggravation of a pre-existing condition. Mrs. Akers sought damages for loss of consortium.   For the accident involving Emmons, the jury returned a verdict for Mr. Akers finding he had suffered a permanent injury or an aggravation of a pre-existing condition as a result of the accident.  Thus, the jury awarded $13,983.85 for past medical expenses, and $4,500 in future medical expenses. They also awarded $1,000 respectively for past pain and suffering, future pain and suffering, past loss of consortium, and future loss of consortium.

The Akers moved for additur, arguing that the awards for future medical expenses, past and future pain and suffering, and past and future loss of consortium were inadequate in light of the evidence that was uncontested from the defense. Emmons responded that additur would be improper since there was conflicting evidence, and the jury could have reached its verdict in a manner consistent with the evidence. The trial court entered an order granting additur or told Emmons there would be a new trial. The order granted an additur in the amount of $195,000 for future medical expenses, $100,000 for past and future pain and suffering, and $100,000 for past and future loss of consortium. Alternatively, the order granted a new trial if the additur was rejected. Emmons rejected the additur, and appealed to Florida’s First District Court of Appeal. Emmons argued that the jury’s award was supported by the evidence and that the court erred by disturbing the verdict

The appellate court affirmed the lower court’s ruling, noting that by statute “[i]f the party adversely affected by an additur does not agree to the additur, the court must order a new trial in the cause on the issue of damages only,” and that the trial court’s conclusions were not unreasonable.  While the trial court must give substantial deference to the jury’s verdict in determining whether to grant an additur, precedent requires this Court to give deference to the trial court’s order granting new trial. Applying this standard, the court affirmed the order under review.

Read the opinion:

Source: &

Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law.

An additur (Latin: “it is added to”) is a legal term referring to the practice of a trial judge adding damages additional to the original amount awarded by the jury Source:

Section 768.043, Florida Statutes (2014), requires a trial court, upon motion, to grant an additur if the amount awarded was “inadequate in light of the facts and circumstances which were presented to the trier of fact.” The statute sets out criteria that the court must consider before awarding additur:

(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 that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.

(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.

(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.

(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.


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