SUPINGER v. STAKES


SUPINGER v. STAKES


January 9, 1998
Record No. 970423

LORI ANN SUPINGER

v.

GLORIA STAKES

OPINION BY JUSTICE CYNTHIA D. KINSER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Arthur B. Vieregg, Jr., Judge
Present: All the Justices


At issue in this appeal is the constitutionality of Code
? 8.01-383.1(B) in cases where the damages are
unliquidated.[1] This section allows a trial
court to use additur when it determines that the damages awarded
by a jury are inadequate. Because we find that Code
? 8.01-383.1(B), as written and as applied in this case,
violates an individual’s right to a jury trial as guaranteed in
the Constitution of Virginia art. I, ? 11, we will reverse
the judgment of the circuit court.

I.

This appeal arises from a jury verdict rendered in a case
involving an automobile accident that occurred between Lori Ann
Supinger (Supinger) and Gloria Stakes (Stakes) on August 22,
1994, in Fairfax County. Following the accident, Supinger filed a
motion for judgment alleging that Stakes’ negligence caused the
collision. After a trial, the jury returned a verdict in favor of
Supinger and awarded her damages in the amount of $515.50. On
June 11, 1996, the trial court entered a final order in
accordance with the jury’s verdict.

Following entry of the court’s order, Supinger moved the trial
court to set aside the jury verdict and to award her a new trial.
On June 25, 1996, the trial court suspended its final order
pending the disposition of Supinger’s motion. Subsequently, in a
letter opinion dated July 23, 1996, the trial court agreed with
Supinger that the jury’s damage award was inadequate as a matter
of law. However, the court denied Supinger a new trial, and held,
instead, that the use of additur would be appropriate. The court
determined that an award of $5,000 would "fairly
compensat[e]" Supinger for her pain and suffering, her time
lost from work, and any inconvenience caused by the accident. The
court then gave Stakes the option of either paying the $5,000 to
Supinger or submitting to a new trial.[2] Finally,
the court stated that, contrary to Supinger’s assertions, it
"may order additur irrespective of whether or not additur is
specifically sought by a disappointed plaintiff."

In response, Supinger filed a motion to reconsider arguing, inter
alia
, that Code ? 8.01-383.1(B) violates her right to a
jury trial because this statute allows the trial court to use
additur without her consent. In a letter opinion dated September
16, 1996, the trial court denied Supinger’s motion and upheld the
constitutionality of Code ? 8.01-383.1(B), stating that the
court "must presume the constitutionality of acts of the
General Assembly in the absence of a clear indication that the
legislative act is unconstitutionally unsound." After also
denying Supinger’s supplemental motion for reconsideration, the
trial court entered final judgment in favor of Supinger on
December 2, 1996, and awarded her $5,000 in damages. Supinger
appeals.

II.

Supinger contends that Code ? 8.01-383.1(B) violates her
constitutional right to a jury trial because it allows the trial
court to use additur without her consent. In considering her
constitutional challenge, we adhere to the well-settled principle
that all actions of the General Assembly are presumed to be
constitutional. Etheridge v. Medical Center Hospitals, 237
Va. 87, 94, 376 S.E.2d 525, 528 (1989). This Court, therefore,
will resolve any reasonable doubt regarding a statute’s
constitutionality in favor of its validity. Blue Cross of
Virginia v. Commonwealth
, 221 Va. 349, 358, 269 S.E.2d 827,
832 (1980). Any "judgment as to the wisdom and propriety of
a statute is within the legislative prerogative," and this
Court "will declare the legislative judgment null and void
only when the statute is plainly repugnant to some provision of
the state or federal constitution." Id., 269 S.E.2d
at 832-33 (citing Newport News v. Elizabeth City County,
189 Va. 825, 831, 55 S.E.2d 56, 60 (1949)).

Article I, ? 11 of the Constitution of Virginia
provides, inter alia, "[t]hat in controversies
respecting property, and in suits between man and man, trial by
jury is preferable to any other, and ought to be held
sacred." "In Virginia, the right to trial by jury
extends to civil litigants . . . ," and they are
entitled to a fair and impartial jury trial. Edlow v. Arnold,
243 Va. 345, 347, 415 S.E.2d 436, 437 (1992); see Code
? 8.01-336. "Trial by jury is a sacred right, and
should be sedulously guarded." Buntin v. City of Danville,
93 Va. 200, 212, 24 S.E. 830, 833 (1896).

The role of a jury is to settle questions of fact. Forbes
& Co. v. So. Cotton Oil Co.
, 130 Va. 245, 263, 108 S.E.
15, 33 (1921). "The resolution of disputed facts continues
to be a jury’s sole function." Etheridge, 237 Va. at
96, 376 S.E.2d at 529. "Without question, the jury’s
fact-finding function extends to the assessment of damages."
Id. The initial question, therefore, is whether in cases
involving unliquidated damages, the use of additur without the
plaintiff’s consent usurps the jury’s fact-finding function and
thus deprives the plaintiff of a full and fair jury trial.[3]

Before a trial court can utilize remittitur or additur, it
must first find that a jury verdict is either excessive or
inadequate, respectively, as a matter of law. See Code
? 8.01-383.1. Inherent in such a conclusion is the trial
court’s finding that the jury was "influenced by passion,
corruption or prejudice" or "misconceived or
misunderstood the facts or the law," and that, therefore,
the verdict was not "the product of a fair and impartial
decision." Rutherford v. Zearfoss, 221 Va. 685, 689,
272 S.E.2d 225, 227-28 (1980) (quoting Smithey v. Refining Co.,
203 Va. 142, 146, 122 S.E.2d 872, 876 (1961)). In this situation,
the aggrieved party has not had a proper jury trial and is
therefore entitled to a new trial. Thus, when the trial court
uses remittitur or additur in lieu of proceeding with a new
trial, it is attempting to restore the benefits of the
constitutional right to a full and fair jury trial. Indeed, prior
to the General "ssembly’s 1994 amendment of Code
? 8.01-383.1 allowing for the use of additur, a plaintiff
who demonstrated that the verdict was inadequate as a matter of
law was entitled to a new trial. See Code
? 8.01-383.

However, an examination of the analytic differences between
remittitur and additur raises the question whether the use of
additur, without the plaintiff’s consent, does, in fact, restore
to the plaintiff the right to a full and fair jury trial. In
remittitur, the trial court reduces an excessive verdict to an
amount supported by the evidence. The amount of damages
eventually awarded by the trial court is an amount that the jury
actually passed on in arriving at its verdict.[4] Thus,
the jury determines the damages, and the court merely reduces the
verdict to an amount that represents a full and fair award.
"Once the jury has ascertained the facts and assessed the
damages, . . . the constitutional mandate is
satisfied," and "it is [then] the duty of the court to
apply the law to the facts." Etheridge, 237 Va. at
96, 376 S.E.2d at 529.

In contrast to remittitur, when a trial court uses additur,
the increased award is not an amount passed on by the jury in
arriving at its verdict. Thus, in additur, the ultimate award
includes an amount that was never assessed by the jury.
Therefore, the use of additur without the plaintiff’s consent
requires the plaintiff to forego the right to have a jury fully
and fairly determine the amount of damages, thereby violating the
plaintiff’s right to a jury trial guaranteed in art. I,
? 11 of the Constitution of Virginia. To avoid
constitutional infirmity, the additur process must allow the
plaintiff the option of either having a new trial or submitting
to additur. The presence of such an option recognizes that the
plaintiff has a right to a second jury trial, since the first one
was defective, and, therefore, renders additur a constitutionally
adequate substitute for a new trial.

Although not binding on this Court because it addressed the
right to a jury trial under the Seventh Amendment of the United
States Constitution, see Pearson v. Yewdall, 95
U.S. 294 (1877), we find the reasoning in Dimick v. Schiedt,
293 U.S. 474 (1935), persuasive. In Dimick, the Court
stated that the remittitur practice in the case of an excessive
verdict "is not without plausible support in the view that
what remains is included in the verdict along with the unlawful
excess — in [the] sense that it has been found by the jury –
and that the remittitur has the effect of merely lopping off an
excrescence." Id. at 486. In contrast, however, where
an inadequate verdict is increased by the court, there is a
"bald addition of something which in no sense can be said to
be included in the verdict." Id. Further, if additur
is done with the consent of the defendant alone, the plaintiff is
compelled to forego his "constitutional right to the verdict
of a jury and accept ‘an assessment partly made by a jury which
has acted improperly, and partly by a tribunal which has no power
to assess.’" Id. at 487.

Contrary to Stakes’ argument, our decision in Etheridge
does not compel a different result. In Etheridge, we held
that the limitation on medical malpractice recoveries contained
in Code ? 8.01-591.15 does not violate the plaintiff’s
right to a jury trial. We reasoned that since the trial court
applies the statutory remedy only after the jury has fulfilled
its fact-finding function, Code ? 8.01-591.15 allows a jury
to resolve disputed facts and assess damages. As in remittitur,
when a jury returns a verdict in excess of the statutory cap, the
amount of the cap is an amount passed on by the jury. Moreover,
the original jury verdict in Etheridge exceeded the
statutory limit but was not otherwise the result of jury
misunderstanding or prejudice. Etheridge, 237 Va. at
96-97, 376 S.E.2d at 529. Therefore, a new trial was not
necessary as the plaintiff had not been denied the right to a
full and fair jury trial. In contrast to Code
? 8.01-591.15, an inadequate verdict, with the explicit
finding of jury misconduct or misunderstanding, and ensuing right
to a new trial initiate the use of additur.

Therefore, we conclude that for the additur process to be
constitutional in cases involving unliquidated damages, the
plaintiff must have the opportunity either to consent to the use
of additur or to have a new trial. This conclusion is not meant
to disparage or discourage the laudable goal of judicial
efficiency that the utilization of additur promotes. Rather, this
decision is limited to what procedure is necessary to render the
additur process constitutionally sound. Accordingly, we now
examine Code ? 8.01-383.1(B) to determine if it permits the
plaintiff to consent to the use of additur and is therefore
constitutional.

The discussion of a statute’s constitutionality necessarily
requires a close examination of the statutory language. In doing
so, this Court is mindful that "[t]he province of
[statutory] construction lies wholly within the domain of
ambiguity, and that which is plain needs no interpretation."
Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d
728, 731 (1954). "Language is ambiguous when it may be
understood in more than one way, or simultaneously refers to two
or more things. If the language is difficult to comprehend, is of
doubtful import, or lacks clearness and definiteness, an
ambiguity exists." Lee-Warren v. School Bd. of Cumberland
County
, 241 Va. 442, 445, 403 S.E.2d 691, 692 (1991). We hold
that Code ? 8.01-383.1(B) as written is clear on its face;
therefore, in interpreting the statute, this Court will look no
further than the plain meaning of the statute’s words. City of
Winchester v. American Woodmark Corp.
, 250 Va. 451, 457, 464
S.E.2d 148, 152 (1995).

In applying the plain meaning rule, this Court constantly
strives to determine and to give effect to the intention of the
legislature. Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Therefore, "we
must . . . assume that the legislature chose, with
care, the words it used when it enacted the relevant statute, and
we are bound by those words as we interpret the statute." Id.
In sum, "[c]ourts are not permitted to rewrite statutes.
This is a legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be applied.
There can be no departure from the words used where the intention
is clear." Anderson v. Commonwealth, 182 Va. 560,
566, 29 S.E.2d 838, 841 (1944).

Turning to Code ? 8.01-383.1(B), we find that the
statute gives the trial court two options after it determines the
verdict to be inadequate as a matter of law:

[T]he trial court may (i) award a new trial or (ii)
either require the defendant to pay an amount in excess of
the recovery of the plaintiff found in the verdict or submit
to a new trial.

(Emphasis added). Notably, the trial court, not the plaintiff,
has the initial choice of awarding a new trial or employing
additur to correct the verdict. Once the trial court decides to
use additur, the defendant, not the plaintiff, can either accept
additur or submit to a new trial. Thus, reading the words as
written and chosen by the General Assembly, the statute does not
give the plaintiff the option of consenting to or declining to
accept the use of additur. The statute instead compels the
plaintiff to accept the trial court’s decision either to conduct
a new trial or to utilize additur.

Nor do we find that Code ? 8.01-383.1(B) implicitly
gives the plaintiff the option of either consenting to additur or
choosing a new trial. The General Assembly knew how to provide a
party with options as ? 8.01-383.1(A) explicitly requires
the plaintiff either "to remit part of his recovery
. . . or submit to a new trial." Further, the last
sentence in ? 8.01-383.1(B) provides both parties with the
option of accepting additur with or without protest.[5] The presence of explicit
options in other areas of the statute suggests that the absence
of any statutory language giving the plaintiff the right to
choose to consent to additur over a new trial was an intentional
omission. In other words, the General Assembly intended the
plaintiff’s only option to be whether to protest the amount
awarded and not whether to consent to additur.

As stated earlier, we will not infer a legislative intent that
is not evident in the statutory language. To do otherwise would
be to rewrite the statute, giving it a construction not intended
by the legislature. Therefore, we conclude that, in cases
involving unliquidated damages, Code ? 8.01-383.1(B), as
written, violates art. I, ? 11 of the Constitution of
Virginia because it fails to require the plaintiff’s consent to
additur.[6]

III.

Following the jury verdict in the instant case, Supinger filed
a motion for a new trial. After finding that the verdict was
inadequate as a matter of law, the trial court, acting pursuant
to Code ? 8.01-383.1(B), sua sponte increased the
award to an amount it found to be sufficient to compensate
Supinger. Supinger did not have the opportunity to consent to the
use of additur and was required to forego her right to have a new
jury assess her damages. Thus, the trial court, in its
application of Code ? 8.01-383.1(B), denied Supinger her
right to a jury trial.

For these reasons, we hold that Code ? 8.01-383.1(B) is
unconstitutional, both as written and as applied in this case.
Accordingly, we will reverse the judgment of the circuit court
and remand this case for proceedings consistent with this
opinion.[7]

Reversed and remanded.

JUSTICE KOONTZ, concurring.

I concur with the holding of the majority in this case insofar
as it determines that the trial court erroneously applied
? 8.01-383.1(B) to deny the plaintiff her right to a jury
trial on the amount of her damages when she did not request or
consent to additur.

However, in light of the well established principles of
deference to the constitutionality of acts by the legislature
acknowledged in the majority’s scholarly analysis, it is not
necessary or warranted to hold that ? 8.01-383.1(B), as
written, violates the plaintiff’s right to a jury trial as
guaranteed by the Constitution of Virginia. We have consistently
held that "[i]f a statute can be made constitutionally
definite [and, thus, not repugnant to some provision of the
constitution] by a reasonable construction, the court is under a
duty to give it that construction." Pedersen v. City of
Richmond
, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979).

Applying these principles, this statute is not
constitutionally infirm, in my view, because reasonably construed
it is implicit within its framework that before the trial court
may use additur to correct an inadequate verdict, rather than the
award of a new trial, the plaintiff must have requested additur.
Such a request is both a waiver of the plaintiff’s right to a new
jury trial and consent to additur. In addition, such a request
then permits the trial court, under the express terms of the
statute, to put the defendant to the election of paying the
additur or submitting to a new trial. In this way neither the
plaintiff nor the defendant is denied the constitutionally
guaranteed jury trial. In my view, this is also entirely
consistent with an intent by the legislature to ensure that
guarantee to both parties.

Code ? 8.01-383.1(B) is not invoked, nor should it be
construed, in a vacuum. It is clear that this statute is invoked
only upon the plaintiff’s challenge to the adequacy of the
verdict and upon the trial court’s finding that the verdict is
inadequate as a matter of law. It strains reason and common sense
to contemplate that a defendant would challenge the verdict as
inadequate, and thus invoke the statute.

In this context, the relief sought by the plaintiff controls
the dispositional alternatives available to the trial court under
the express terms of the statute. Moreover, these alternatives
ensure the right to a jury trial to both parties. Thus, where the
plaintiff seeks a new trial and does not consent thereafter to
additur, the trial court is permitted only to award a new trial.
In contrast, when the plaintiff requests additur, and thereby
waives the right to a new jury trial, the trial court is
permitted to require the defendant to pay additur or to submit to
a new trial.

In the present case, because the plaintiff did not request or
consent to additur, but rather only requested a new trial, and
the trial court found that the verdict was inadequate as a matter
of law, I would hold that the trial court did not properly apply
Code ? 8.01-383.1(B), which as written is constitutionally
sound, and would reverse and remand on that basis only.

 

 

 

FOOTNOTES:

[1] Code ? 8.01-383.1 provides as
follows:

Appeal when verdict reduced and accepted under protest;
new trial for inadequate damages.
B- A. In any action at
law in which the trial court shall require a plaintiff to
remit a part of his recovery, as ascertained by the verdict
of a jury, or else submit to a new trial, such plaintiff may
remit and accept judgment of the court thereon for the
reduced sum under protest, but, notwithstanding such
remittitur and acceptance, if under protest, the judgment of
the court in requiring him to remit may be reviewed by the
Supreme Court upon an appeal awarded the plaintiff as in
other actions at law; and in any such case in which an appeal
is awarded the defendant, the judgment of the court requiring
such remittitur may be the subject of review by the Supreme
Court, regardless of the amount.

B. In any action at law when the court finds as a matter
of law that the damages awarded by the jury are inadequate,
the trial court may (i) award a new trial or (ii) either
require the defendant to pay an amount in excess of the
recovery of the plaintiff found in the verdict or submit to a
new trial.

If additur pursuant to this section is accepted by either
party under protest, it may be reviewed on appeal.

The constitutionality of ? 8.01-383.1(A)(remittitur) is
not at issue in this appeal.

[2] Stakes agreed, under protest,
to pay the $5,000 rather than submit to a new trial.

[3] By consenting to additur, the
plaintiff waives the right to a jury trial. See Code ?
8.01-336(B).

[4] For example, if a jury awards
$1,000 in damages and the trial court, using remittitur, reduces
the amount to $500, the jury, in awarding $1,000, necessarily
also found damages in the amount of $500.

[5] This option occurs only after
the court has decided to use additur and allows the plaintiff to
protest only the amount of the award.

[6] The right to a jury trial
extends to both the plaintiff and the defendant. However, since
Code ? 8.01-383.1(B) already provides the defendant the
opportunity to consent to additur, the statute does not deny the
defendant the right to a jury trial.

[7]
Supinger also contends that even if Code ? 8.01-383.1(B) is
constitutional, the trial court erred in using additur when
Supinger requested only a new trial. Since we find that Code
? 8.01-383.1(B) is unconstitutional, we do not address this
additional argument.

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