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Ziemak v. Schnakenberg5/31/2005
ch renders that portion of the judgment "more favorable" to the claimant party. See § 12-133(I). Thus, we hold that any prejudgment interest must be included when calculating the amount of the judgment for purposes of comparing that judgment to an arbitration award pursuant to § 12-133(I) and Rule 76(f).
2. Was the jury's calculation of Ziemak's damages improper?
Ziemak next contends that the jury miscalculated her damages and that the trial court erred when it denied her motion for additur to conform the award to the evidence she had presented at trial. " he question of additur is left to the greatest possible discretion of the trial court, and its decision will not be disturbed on appeal except for a case of clear abuse." Bustamante v. City of Tucson, 145 Ariz. 365, 366, 701 P.2d 861, 862 (App. 1985).
Ziemak presented evidence that she had paid $14,752.54 for medical expenses. The jury awarded her only $13,150.50 before reducing the award to conform to its findings of relative degrees of fault. In its January 30, 2004, minute entry (signed on August 17, 2004) denying her motion for additur, the trial court concluded that the reduced award had been based upon the jury's findings that, even if Ziemak had been insured under the Conseco policy at the time of the injury , she still would have incurred costs that were not covered, such as her deductible, prescription medications, and office copays. We cannot say that the trial court abused its discretion when it reached that conclusion.
Schnakenberg elicited testimony at trial suggesting that Ziemak would have had some out-of-pocket expenses regardless of whether she was covered by Conseco in February 2002. Other evidence was produced to corroborate the testimony. Because the amount of the jury verdict closely tracked the evidence that was presented, we cannot say that the trial court erred by assuming that the verdict reflected the jury's consideration of that evidence. Ultimately, " he amount of damages for personal injury is a question particularly within the province of the jury." Meyer v. Ricklick, 99 Ariz. 355, 357, 409 P.2d 280, 281-82 (1965). And in considering an appeal on a motion for additur, our supreme court held in Creamer v. Troiano, 108 Ariz. 573, 576-77, 503 P.2d 794, 797-98 (1972), that "the trial judge should not interfere with what is peculiarly the jury's function, and if he does not, we will nearly always uphold him . . . if the verdict is supported by adequate evidence, it will not be disturbed." Here, the verdict was supported by sufficient evidence. The trial court did not abuse its discretion when it denied Ziemak's motion for additur.
Conclusion
We affirm the trial court's denial of Ziemak's motion for additur. We vacate the judgment entered in favor of Schnakenberg and instruct the court to enter judgment in favor of Ziemak to include prejudgment interest and her recoverable costs pursuant to A.R.S. § 12-341.
PETER J. ECKERSTROM, Judge
CONCURRING:
JOSEPH W. HOWARD, Presiding Judge
PHILIP G. ESPINOSA, Judge
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