
    Odelle CARVER v. Marjean Dubois WALDEN, et al.
    2910132.
    Court of Civil Appeals of Alabama.
    May 15, 1992.
    Rehearing Denied June 26, 1992.
    Certiorari Denied Aug. 21, 1992 Alabama Supreme Court 1911577.
    Ray O. Noojin, Jr. of Hare, Wynn, New-ell & Newton, Birmingham, for appellant.
    William P. Traylor III and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellees.
   ROBERTSON, Presiding Judge.

This case arises from a car accident involving the plaintiff, Odelle Carver, and the defendant, Marjean Walden. Following a jury trial, a verdict was returned awarding Carver $500 in damages. Carver then filed a motion for a new trial on grounds that the verdict of the jury was insufficient, contrary to the law in the case, inconsistent, and that the verdict failed to do justice between the parties. The motion for a new trial was denied; hence this appeal.

The accident occurred on October 8, 1987, on Highway 31 in Hoover, Alabama. Carver was a passenger in the car driven by her daughter, Vicki Myers, and Walden was the driver of the other car. Carver sustained injuries including a fracture in the middle third of the right fourth metacarpal, a bruise on her head, and a commi-nuted fracture of the left heel bone. Testimony of a Dr. Compton was taken at trial. He testified that Carver initially visited him on October 13, 1987. He has seen her for several visits, and her last appointment was in August 1988. Dr. Compton’s bill for his treatment of Carver totaled $1,005. The amount of this medical bill was undisputed.

Carver contends that the trial court abused its discretion in denying her motion for a new trial. She argues that the verdict is against the weight and preponderance of the evidence in that testimony revealed that she was totally disabled for two months, and that she suffered pain and had some permanent impairment as a result of the accident.

We first note that jury verdicts are presumed to be correct in Alabama, and this presumption is further strengthened by the trial court’s denial of a motion for new trial. Ashbee v. Brock, 510 So.2d 214 (Ala.1987). Whether a trial court grants or denies a motion for new trial is a decision committed to its sound discretion, and this court will not reverse on appeal absent a showing of an abuse of that discretion. Franklin v. Cannon, 565 So.2d 119 (Ala.1990).

However, this court found that “where liability is proven, the verdict must include an amount at least as high as the uncon-tradicted special damages, as well as an amount sufficient to make any compensation for pain and suffering.” Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988) (emphasis in original).

In the instant case, the $1,005 representing medical bills is undisputed; however, during the deliberations the jury posed the question of whether Carver had insurance to cover the initial medical expenses and damages. The trial judge instructed the jury that such a question was not an issue in the case, and it should not be considered. We note that the jury had before it during deliberations a copy of an exhibit detailing Carver’s medical bill. Included in the bill were credit entries paid by her insurance company. The record revealed that Carver’s balance on her medical bill was $217. The fact that Carver’s insurance company paid for a substantial portion of the bill is irrelevant. Denton v. Foley Athletic Club, 578 So.2d 1317 (Ala.Civ.App.1990), cert. denied, 578 So.2d 1319 (Ala.1991). The amount of the damages recoverable by Carver should not be diminished by the fact that she has been partially indemnified for her loss by her insured. Id.

The jury found that Carver did prove her cause of action against Walden. The medical bills in the amount of $1,005 were undisputed. Therefore, we hold that Carver is entitled to recover at least that amount as well as compensation for her pain and suffering. Nemec.

We find that the trial court abused its discretion in failing to grant Carver’s motion for a new trial; therefore, this case is due to be reversed and remanded for further proceedings.

REVERSED AND REMANDED WITH DIRECTIONS.

THIGPEN, J., concurs.

RUSSELL, J., dissents.

RUSSELL, Judge

(dissenting).

I respectfully dissent. I would affirm the judgment of the trial court, holding that based on the “collateral source” statute enacted in 1987, the trial court did not abuse its discretion by failing to grant Carver’s motion for new trial.

The majority, citing Denton v. Foley Athletic Club, 578 So.2d 1317 (Ala.Civ.App.1990), holds that the damages recoverable by Carver should not be diminished by the portion of the medical bills that was paid by Carver’s insurance company and that she is entitled to recover at least the amount of undisputed medical bills, as well as compensation for pain and suffering. In Denton this court relied on Roland v. Krazy Glue, Inc., 342 So.2d 383 (Ala.Civ.App.1977). Roland was a 1977 case that occurred prior to the enactment in 1987 of § 12-21-45, Ala.Code 1975. Section 12-21-45 provides as follows:

“(a) In all civil actions where damages for any medical or hospital expenses are claimed and are legally recoverable for personal injury or death, evidence that the plaintiffs medical or hospital expenses have been or will be paid or reimbursed shall be admissible as competent evidence. In such actions upon admission of evidence respecting reimbursement or payment of medical or hospital expenses, the plaintiff shall be entitled to introduce evidence of the cost of obtaining reimbursement or payment of medical or hospital expenses.
“(b) In such civil actions, information respecting such reimbursement or payment obtained or such reimbursement or payment which may be obtained by the plaintiff for medical or hospital expenses shall be subject to discovery.
“(c) Upon proof by the plaintiff to the court that the plaintiff is obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed, evidence relating to such reimbursement or payment shall be admissible.
“(d) This section shall not apply to any civil action pending on June 11, 1987.”

The present action was filed on June 1, 1988; therefore, the statute is applicable, and the trial court’s judgment is due to be affirmed.  