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TUTTLE v. WAYMENT FARMS6/17/1997
endered under the influence of passion or prejudice, then a new trial should be granted. Id.; Pratton v. Gage, 122 Idaho at 853, 840 P.2d at 397 (1992). It has been held that "the disparity must `shock the conscience' of the trial judge or lead [the judge] to conclude that it would be `unconscionable' to let the damage award stand as the jury set it. Quick v. Crane, 111 Idaho at 769-770, 727 P.2d at 1197-98.
Further, the court in Quick v. Crane recognized a motion for remittitur of damages as purely an alternative to I.R.C.P. 59(a)(5). Id. at 770, 727 P.2d at 1198. The trial judge can only grant an additur or remittitur by offering a new trial as an alternative, and then only if the court determines that the disparity between the jury's award and the court's evaluation of damages was the result of passion or prejudice. Howes v. Fultz, 115 Idaho 681, 686, 769 P.2d 558, 563 (1989).
Tuttle argues on appeal that the trial court gave undue weight to the testimony that Tuttle was able to do "medium to heavy work," and disregarded the expert testimony as to Tuttle's projected future loss of income. However, "it is the judge's sense of a disparity and the reason for it, rather than the dollar difference per se, which is critical to his proper exercise of discretion." Sawyer v. Claar, 115 Idaho 322, 324, 766 P.2d 792, 794 (Ct. App. 1988). In this case, the trial court concluded that the difference between the amount the court would have awarded, in comparison to the jury's verdict of $175,000, was not so inadequate as to appear that the jury's award was given under passion or prejudice. The trial court ruled that the verdict was not so disparate from the court's determination as to shock the court's conscience, and described the verdict as reasonable and fair in light of the evidence produced at trial. Here, the required finding that the award was the result of passion or prejudice was not present. Accordingly, we find no error in the exercise of the trial court's discretion in denying the motion for new trial or for an addititur under I.R.C.P. 59(a)(5).
II. Wayment Farms, Inc.'s Motion for Offset
Tuttle argues that the district court erred when it reduced the jury's award, less Tuttle's proportionate share of fault, by the amount of the settlement from Wes's Inc. which was made prior to the start of trial. At the time the release agreement was entered into in 1993, Tuttle asserts that no offset against the amount of the judgment toward another tortfeasor was authorized under I.C. Section 6-805(2), unless the release specified that the settlement was to reduce the plaintiff's claim against the other tortfeasor. Because the release in question did not by express terms provide for such a reduction, Tuttle argues that Wayment Farms was not entitled to an offset for the settlement from Wes's Inc.
In its motion for setoff, Wayment Farms claimed that I.C. Sections 6-805 and -1606 provided that a release from one tortfeasor reduced the amount of the jury award, and it sought to have the verdict reduced by the $38,500 paid by Wes's Inc. However, Wayment Farms argued that its right to a setoff was derived from I.C. Section 6-805 as it existed when the action was filed in June 1991, citing Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986) and Curtis v. Canyon Highway Dist. No. 4, 122 Idaho 73, 831 P.2d 541 (1992), where the court in each case upheld an offset based on I.C. Section 6-805 prior to its 1991 amendment. Wayment Farms claimed that to be denied the setoff based on the statute as it existed when the release was executed in 1993 would constitute an unlawful retroactive application of the amendment to the statute which became effective July 1, 1991.
T
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