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SULLIVAN v. DAVIS1/30/1995
ived over forty pints of blood. After his release he convalesced at a nursing home for two additional months. When Albert finally returned home, he had a temporary colostomy. His medical bills totalled $131, 157.61. Additionally, Dr. Oliver Wood, an economic loss expert, estimated a total economic loss of approximately $100,000.
After hearing all the testimony, the jury began deliberating. While they were deliberating, they sent the trial judge two inquiries:
1. We would like the exhibit of Mr. Sullivan's
medical expenses.
2. The jury requests information pertaining to
what medical expenses incurred by Mr. Sullivan
that have not been paid and which are not
covered under existing insurance.
The Record on Appeal does not contain the court's responses to the inquiries. Therefore, we assume the court correctly advised the jury it should not consider insurance in its deliberations. State v. Vanderhorst, 257 S.C. 114, 184 S.E.2d 540 (1971) (where the trial judge's instructions are not printed in the record, the appellate court must presume the judge correctly charged the jury); see also Dunn v. Charleston Coca-Cola Bottling Co., 311 S.C. 43, 426 S.E.2d 756 (1993) (voir dire question on whether any members of the venire believed damages should be limited in order to reduce insurance rates was inherently prejudicial); cf. Landry v. Hilton Head Plantation Property Owners Ass'n, Inc., Op. No. 2272 (S.C. Ct. App. filed Dec. 12, 1994) (Davis Adv. Sh. No. 27 at 66) (neither the existence nor the contents of a defendant's liability policy may be disclosed to the jury); Norris v. Ferre, 315 S.C. 179, 181, 432 S.E.2d 491, 493 (Ct.App. 1993), cert. denied, (Mar. 4, 1994) (" he Supreme Court has been meticulous in keeping the issue of insurance coverage away from the jury.")
The jury returned a verdict of only $20,000 in Albert's case. The judge granted a new trial nisi to $44,022.38, the amount of Medicare's allowed charges. Albert argues first the trial judge erred in not granting Albert a new trial. In the alternative he alleges the trial judge improperly calculated the additur. Porter contends his liability for medical expenses, if any, should be limited to compensating Albert for the reasonable costs which Medicare paid, together with miscellaneous coinsurance, deductible, and non-Medicare covered expenses.
Under the circumstances the trial court should not have granted a new trial nisi. The jurors obviously did not follow the court's instructions to disregard insurance. Toole v. Toole, 260 S.C. 235, 195 S.E.2d 389 (1973). The verdict is not rationally supported by the evidence in this case. Because the
Porter further argues Albert cannot challenge the additur because, having requested an additur, and gotten it, he cannot now complain about the amount. Kalchthaler v. Workman, Op. No. 2246 (S.C. Ct. App. filed October 24, 1994) (Davis Adv. Sh. No. 24); Stroud v. Stroud, 299 S.C. 394, 385 S.E.2d 205 (Ct.App. 1989). In Stroud the jury awarded the plaintiff $4,765.17, the amount of his medical bills, and the judge granted a new trial nisi additur of $4,000. We affirmed that amount, but noted:
Motions for a new trial on the ground of
either excessiveness or inadequacy are
addressed to the sound discretion of the trial
judge. His exercise of such discretion,
however, is not absolute and it is the duty of
this Court in a proper case to review and
determine whether there has been an abuse of
discretion amounting to an error of law.
Id. at 397, 385 S.E.2d at 206 (citation omitted). Kalchthaler also involved the adequacy of a new trial nisi. In that case we specifically found the amount
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