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Jones v. Double Properties4/27/2005
This is a consolidated appeal arising from a personal injury action filed by appellants, Edward C. Jones (Jones) and Debra Jones (collectively "appellants"), for injuries sustained by Edward Jones when the truck he was driving to haul corn from appellee's, Flor-Ag Corporation (Flor-Ag), farm fields was struck by a bulldozer (owned by Flor-Ag) driven by a Double D Properties (Double D) employee. Jones maintained that the bulldozer, which was supposed to lead his truck out of the corn fields, improperly backed into the truck, causing his injuries. Debra Jones filed a loss of consortium claim.
We affirm in part, reverse in part and remand for a new trial on damages only on Debra Jones's loss of consortium claim. We reverse the trial court's ruling awarding attorney's fees and costs against Debra Jones and affirm as to all other issues raised, including the denial of appellees' motion for attorney's fees and costs raised in appellees' appeal in Case No. 04-25.
Following a jury trial, a verdict was entered in favor of Jones, finding him seventy (70%) percent at fault and a Double D Properties' employee thirty (30%) percent at fault. Total damages for Jones were assessed at $349,505.04; his wife, Debra Jones, received a zero verdict on her loss of consortium claim.
Loss of Consortium
Appellants argue that the zero verdict on Debra Jones's loss of consortium claim was in error in light of the substantial competent evidence presented at trial demonstrating that she suffered a loss of consortium from her husband as a result of his injury.
When the claiming spouse presents evidence that is substantial, undisputed, and unrebutted concerning the impact the injury had on the marital relationship, such spouse is entitled to receive at least nominal damages for loss of consortium. See Fleming v. Albertson's, Inc., 535 So. 2d 682, 684 (Fla. 1st DCA 1988), review denied, 542 So. 2d 1333 (Fla. 1989); see also Aurbach v. Gallina, 721 So. 2d 756, 758 (Fla. 4th DCA 1998), approved, 753 So. 2d 60 (Fla. 2000)(on a consortium claim, where sufficient undisputed evidence was presented that would require an award of at least nominal damages, a zero verdict is inadequate as a matter of law); Christopher v. Bonifay, 577 So. 2d 617 (Fla. 1st DCA 1991)(a spouse is entitled to reversal of a zero verdict only if it can be established that the record contains substantial, undisputed evidence of loss of consortium).
If the zero verdict on the loss of consortium claim is inadequate as a matter of law, then only a new trial on damages for loss of consortium is required. See Bradshaw v. State Farm Auto. Ins. Co., 714 So. 2d 620, 622 (Fla. 5th DCA 1998). Upon retrial, if the evidence of a substantial loss of consortium is again unrefuted, the jury should be instructed that an award for loss of consortium must be given. See id. at 623.
In this case, the record evidence concerning the impact the injury had on the marital relationship was largely unrebutted. Debra Jones testified that the couple no longer had an active social life, that she must tend to her husband's basic needs in bathing, dressing and preparing meals, that due to his sensitivity to extreme temperatures, they must turn off the air conditioning and must forego going out, even to church, because Jones cannot stand the change in temperature. Debra stated that she subs as a teacher due to the fact that she must take off often in order to drive Jones to his appointments.
Appellees relied heavily upon the fact that the couple filed separate tax returns and that Jones stated that the two lived apart for several months, and were "on-again-off-again." However, Jones explained that he was oft
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