BEAUMONT COURT OF APPEALS SUPPORTS JURY AWARD OMITTING FUTURE DAMAGES & TRIAL COURT ORDER GRANTING NEW TRIAL WAS IMPROPER
The Beaumont Court of Appeals recently considered a trial court’s grant of a new trial based on a jury’s failure to award future physical pain and suffering, mental anguish and physical impairment damages and found that there was factually sufficient to support the jury’s finding, and therefore, the trial court’s granting plaintiff a new trial was improper. In most cases, a trial court’s grant of a new trial remains intact but In re Allstate Property and Casualty Insurance Company, 2020 WL 1879659 (Tex. App.—Beaumont Apr. 16, 2020, no pet. h.), the Beaumont conditionally granted Allstate’s petition for a writ of mandamus effectively reversing the trial court’s order granting a new trial.
The insured Depew sought underinsured motorist benefits from Allstate after an auto accident in August of 2014. After a jury trial more than four years later, the jury refused to award future physical pain and suffering, mental anguish and physical impairment damages. So, Depew filed a motion for new trial and the trial court found the jury’s rejection of these damages went against the great weight and preponderance of the evidence and, accordingly, ordered a new trial. But the day before the new trial was to begin, Allstate filed a petition for writ of mandamus seeking to have the appellate court overturn the trial court’s order granting the new trial. In response, Depew argued (1) Allstate failed to diligently pursue its complaint; (2) the order granting a new trial stated sufficient facts to grant a new trial; and (3) Allstate failed to show an abuse of discretion by the trial court.
The Beaumont Court of Appeals held while there is not an exact timeframe for seeking a mandamus petition, Allstate was able to show a reasonable explanation for their seven-month delay and Depew could not demonstrate a detrimental change in his position. Allstate showed it had communicated with the court reporter about getting a copy of the record the month after Depew’s motion was granted, paid for the record a few months later, and filed their mandamus petition shortly after receiving the record and prior to the case being retried. While Depew did show he was inconvenienced, he was not able to show any detrimental change in his position. Thus, the court held Allstate provided a reasonable explanation for its delay in seeking mandamus relief and Depew’s position was not detrimentally changed.
Turning its analysis to the order granting a new trial, the court focused on whether the trial court provided an understandable and reasonably specific explanation for setting aside the jury’s verdict that was legally appropriate and specific enough to indicate the basis for the trial court’s decision. The trial court’s rationale was based upon testimony about the insured’s daily struggle with knee pain, the likelihood of continued suffering in the future from his knee condition, the jury’s failure to award future damages with past damages was inconsistent, and the uncontroverted testimony of Depew, his wife, and an adult granddaughter. Then the court reviewed the entire record, using a factual sufficiency standard, to determine whether the record supported the trial court’s reasoning.
The evidence and record showed that, in September 2014, Depew had arthroscopic surgery to his left knee to repair a torn meniscus for injuries from the accident. Depew went on to get post-surgery physical therapy. Towards the end of his physical therapy, he reported that his pain level was probably one out of ten with one being the least amount of pain. An orthopedic surgeon told Depew, he would eventually need a knee replacement, but Depew chose not to have the surgery because he feared possible complications. The last treatment to his left knee was in December 2015, over three years prior to the trial. The only evidence Depew’s condition worsened after medical treatment or that he still experienced mental anguish or impairment came from the testimony of Depew, his wife, and his granddaughter. But, their testimonies were not supported by any objective evidence.
In light of their review of the record, the court felt the trial court had (1) credited the record with showing the insured still experienced knee pain; (2) credited that Depew managed his pain with over-the-counter analgesics; (3) credited the testimony of Depew’s physical limitations affect his ability to perform household and leisure activities; (4) credited the witness descriptions that Depew had limitations and feared staying employed; (5) failed to rely on the lack of medical records or testimony rejecting the jury’s conclusion that Depew had fully recovered from the injury; and (6) relied on the fact the jury awarded sums for past damages, which the trial court viewed as inconsistent with the jury’s failure to award future damages.
In doing so the court felt that the trial court usurped the jury’s right to weigh the evidence and determine the credibility of the testimony presented. Additionally, the court felt that the trial court failed to recognize that the jury could have compared the testimony of the interested witnesses against a lack of any supporting objective medical evidence of future damages and reached their own conclusion. Finally, the trial court did not explain why the jury could not have considered the fact that it had been several years since Depew has received any medical treatment in making their decision that he had recovered and failed to meet his burden of future damages. The court held the trial court abused its discretion in granting a new trial, since the record did not support the trial court’s reasons for granting a motion for new trial.
Accordingly, the Beaumont Court of Appeals conditionally granted Allstate’s request for mandamus relief. The order is conditional in that a writ would only issue if the trial court failed to vacate the order granting a new trial.