Grandstaff v. Hawks5/31/2000
ly supported by the evidence. Based on our review of the evidence, we find that the evidence does not preponderate against the trial court's conclusion.
A.
The impact of the collision propelled Ms. Grandstaff forward, causing her head to break the windshield. Ms. Grandstaff suffered cuts and bruises on her face, shoulder, and hip, and some particles of the windshield became embedded in her face. According to the evidence, Ms. Grandstaff also had a pre-existing lower back problem that was worsened by a new injury caused to her neck by the collision.
Ms. Grandstaff incurred medical expenses of $10,218.37, and will continue to see her chiropractor at least once a month, at a cost of $50 per visit, for the foreseeable future. She may also have to undergo one or two additional office procedures with her doctor to remove any glass in her skin that has not yet been found. The cost of such procedure ranges between $1,000 and $1,500. Ms. Grandstaff did have some scarring, but by the time of trial, her plastic surgeon testified that the scars had healed, and were almost indiscernible.
The jury found that Ms. Grandstaff's damages were $138,218.37. In its judgment of April 14, 1997, the trial court ordered each defendant to pay Ms. Grandstaff $67,727 (49% of the total damages), for a total of $135,454. In a June 18, 1997 letter addressed to counsel for State Farm and Ms. Grandstaff, the trial court made clear its intention to suggest a remittitur of $63,000, "reducing the original Judgment from One Hundred Thirty-eight Thousand ($138,000.00) Dollars to Seventy-five Thousand ($75,000) Dollars." Ms. Grandstaff accepted this remittitur under protest. On September 10, 1997, the court entered an order granting the remittitur, "therefore granting a Judgment to Plaintiff in the amount of $75,000.00, of which one-half (1/2) of that Judgment shall be awarded against . . . [Mr.] Forrest, the claim against [Mr. Hawks] having been settled post-trial."
B.
In personal injury cases, calculation of damages is within the province of the jury. See Lunn v. Ealy, 176 Tenn. 374, 376, 141 S.W.2d 893, 894 (1940). Nevertheless, the trial court may suggest remittitur of a verdict if the court finds that the verdict is excessive. See Tenn. Code Ann. § 20-10-102(a) (1994). If the party in whose favor the verdict has been rendered refuses to make the remittitur, the trial court must grant a new trial. See City of Gatlinburg v. Fox, 962 S.W.2d 479, 481 (Tenn. 1998). If, however, the party accepts the remittitur under protest, the party may then appeal the trial court's finding that the verdict was excessive. See Tenn. Code Ann. § 20-10-102 (a); City of Gatlinburg v. Fox, 962 S.W.2d at 481.
Trial courts should suggest remittitur if it would accomplish justice between the parties without the cost and delay inherent in a new trial. See Turner v. Jordan, 957 S.W.2d at 823; Thrailkill v. Patterson, 879 S.W.2d 836, 840 (Tenn. 1994). If possible, the courts should utilize the remedy of remittitur, rather than ordering a new trial based on the size of the jury verdict. See Thrailkill v. Patterson, 879 S.W.2d at 840; United Brake Sys., Inc. v. American Envtl. Protection, Inc., 963 S.W.2d 749, 760 (Tenn. Ct. App. 1997).
This court reviews a trial court's remittitur under the standard of Tenn. R. App. P. 13(d). See Tenn. Code Ann. §§ 20-10-102(b); Thrailkill v. Patterson, 879 S.W.2d at 841. Accordingly, when reviewing a trial court's suggestion of remittitur, we must use the standard of review that applies to findings of a trial judge, see Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 331 (Tenn. 1996), and determine whether the evidence preponderates against t
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