STDS of REVIEW: Punitive Damages Constitutionality

O.(R.)  VS. C.(A.)
COA, Published, 3/26/2012

We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky. 2007); McDonald’s Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky. App. 2009).

For an in-depth explanation as to the policy furthering a de novo standard of review, see Ragland v. Digiuro, 352 S.W.3d 908, 916-917 (Ky. App. 210)

JURY INSTRUCTIONS: Civil case, separate instructions for past and future pain and suffering; and what about ‘inconvenience’

The following decisions, albeit unpublished, addressed a common thread on pain and suffering, past and future, but bypassed the interesting question and issue as to whether on not the statutory prescription in the no fault act (which includes inconvenience) requires that exact phrase in the instructions as it goes to the jury.   Of course, the side-step is not unwarranted, but judicial clarification has not been a problem before.

See earlier post at the Kentucky Law Review by me entitled:  "Trial Practice: No Pain, No Gain and the Judicial Discounting of Pain and Suffering" back in 2006 and "Zero Pain and Suffering Verdict With Ky AG Candidate on the Defense" from 2007; and "DAMAGES: PTSD and mental anguish resulting from death of a loved one in the same car accident seems to be a noncompensable damage in UIM case even when the claimant has been physically injured from the accident" from 2008.

And, of course, here is KRS 204.39-060(2)(b):

In any action of tort brought against the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle, or against any person or organization legally responsible for his or her acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle . . . . (from 1975!).


Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

Attorney Fees; Withdrawing representation on contingency fee arrangement, lawyer still entitled to quantum merit recovery: Bradley v. Est. of Herman Lester, COA, Pub., 11/11/2011

Termination of representation on a contingent fee contract places payment for  your services from the recovery in jeopardy.  In the following COA decision, withdrawing cost the attorney his contractual contingent fee but permitting the attorney a quantum merit recovery for his services.


ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

Causes of Action: UCSPA, Actual damages not include attorney fees (policy language reviewed)

From Excel v. Liberty Mutual, COA, NPO, 5/6/2011

Next, Exel contends the trial court erred by finding that it failed to present evidence to support a finding that Liberty’s actions caused actual damage or injury to Exel. Specifically, Exel alleges it suffered compensable damages in the form of attorney fees in regards to the underlying action, the expenses associated with Exel’s attorney’s time spent assisting Liberty in its defense of Exel, the loss of coverage under its policy with Liberty, and its increased loss experience resulting from Liberty’s settlement with Borden. We disagree.

The goal of compensatory or actual damages is to compensate a plaintiff for injuries and make the plaintiff whole by awarding a monetary amount to equal the wrong by the defendant. Jackson v. Tullar, 285 S.W.3d 290, 297-98 (Ky.App. 2007). Here, Exel’s claims of damages do not specifically allege any compensable injuries to support its claim of bad faith. The insurance policy with Liberty held by Exel contained no provision permitting Exel to recover attorney fees in such an instance. See Glass, 996 S.W.2d at 455 (absent a written agreement or statute, parties are generally not allowed to recover attorney fees) (citation omitted). Further, Exel failed to provide any evidence of the expenses incurred by its general counsel while assisting Liberty in its defense of Exel besides the counsel’s salary paid by Exel, which would have been paid despite Liberty’s actions. In addition, Exel’s claim that it incurred actual injury as a result of its policy limit being exhausted is also without merit. Exel suffered no actual injury as a result of Liberty paying out the policy limit because it defense costs were entirely paid by either Liberty or Great American. Lastly, Exel did not provide any evidence that it suffered an increased loss expectancy or that an increased loss expectancy could be attributed to Liberty’s actions which are alleged to be in bad faith. Accordingly, the trial court did not err by granting Liberty’s motion for summary judgment.

STD OF REVIEW: Appellate review of inadequate or inconsistent damages


The decision of whether to grant a motion for a new trial based upon
inadequate or inconsistent damages “‘. . . . is a discretionary function assigned to the trial judge who has heard the witnesses first-hand and viewed their demeanor and who has observed the jury throughout the trial’.” Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991) (quoting Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.1984)), abrogation on other grounds recognized by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.2002). The trial court’s ruling will be upheld unless it is clearly erroneous. Id. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Therefore, we must determine whether substantial evidence existed to support the trial court’s decision to deny Cummings’ motion for a new trial.

 jury’s decision to award damages for medical expenses and lost
wages but not to award damages for pain and suffering is not a legal inconsistency. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001). Kentucky law does not require a jury to award pain and suffering damages in every case in which it awards medical expenses. Id. Instead, the question of whether a jury’s award of damages is inadequate requires an examination of the underlying evidence. Id. at 602.

Evidence that contradicts the jury’s decision is not enough to show inadequacy. The jury is given the responsibility of evaluating the evidence and determining the credibility of witnesses. A jury is not bound to believe any particular witness. Spaulding v. Sprinkle, 774 S.W.2d 465, 467 (Ky. Ct. App. 1989).

** *

While juries are not required to award pain and suffering damages each time a plaintiff is compensated for medical expenses, “. . . . where a substantial personal injury is sustained, suffering is presumed.” Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598, 599 (1944). Based upon the uncontroverted evidence of Cummings significant injuries and the inadequacy of the award, we conclude that the trial court’s Order was clearly erroneous.

Trial: Supplementing Damage Interrogatory Answers AFTER close of evidence and before submitting to jury permitted

The following is an important decision by the COA which held in this published decision that the CR 26 answers to damage interrogatories can be supplemented at the close of evidence and before the case is submitted to the jury.

Engle v. Baptish Healthcare System, Published, 2/25/2011

Although Baptist received a defense verdict, it filed a cross-appeal regarding the trial court’s instructing the jury on punitive damages. Engle’s complaint, filed November 24, 2004, requested an unspecified amount of punitive damages. Baptist requested answers to interrogatories, and one of Baptist’s interrogatories asked Engle to categorize and specify the amount of his damages. In his answer to Baptist’s interrogatory, Engle made no reference to punitive damages.

The trial in this matter concluded on October 9, 2009. After the close of evidence at trial, but before the matter was submitted to the jury, Engle moved to supplement his answers to Baptist’s interrogatories because he wished to specify a sum of punitive damages for the jury to consider. Baptist objected, contending that Kentucky Rule(s) of Civil Procedure (CR) 8.01(2) precluded Engle from supplementing his interrogatories at that time. In support, Baptist cited Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999), which “recognized that a trial court can authorize answers or supplemental answers to interrogatories for good cause, as late as during the trial itself.”4 [fn 4 In Tennill v. Talai, 277 S.W.3d 248, 251 (Ky. 2009), the Supreme Court of Kentucky interpreted Fratzke in this manner.]   Baptist urged that Engle’s motion was untimely because both sides had already finished presenting their cases. Nevertheless, the trial court granted Engle’s motion to supplement his answers to Baptist’s interrogatories, and the question of punitive damages was submitted to the jury.

In its cross-appeal, Baptist repeats its argument that Engle’s motion was improper solely because it occurred after both sides had presented their respective cases. Baptist urges that, should we remand this matter, Engle should be precluded from seeking punitive damages upon retrial.

However, Baptist presents no authority supporting that a motion to supplement answers to interrogatories is improper within the meaning of Fratzke if it is made after the close of evidence but prior to submitting a matter to the jury. Moreover, Fratzke merely holds that a motion to supplement answers to interrogatories may be granted as late as during trial. We have determined that a new trial is warranted in this matter, the new trial in this matter has yet to occur, and Baptist presents no authority that would prohibit Engle from moving to supplement his answers during the course of retrial. Therefore, we find no error in the trial court’s decision to grant Engle leave to amend his answers to Baptist’s interrogatories.



Attorneys Fees, Class Action: Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A. (COA 10/16/2009)

Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A.
2007-CA-001374 10/16/09 2009 WL 3336065 Rehearing Pending
Opinion by Judge Dixon; Judge Nickell and Senior Judge Knopf concurred.

The Court affirmed a judgment of the circuit court ruling that the appellant attorney was not entitled to any attorney’s fees from a class action lawsuit involving child sexual abuse against the Roman Catholic Diocese of Covington. The Court ultimately held that the trial court properly denied the request for attorney’s fees. In reaching that conclusion the Court first held that the trial court did not err in denying appellant’s motion for partial summary judgment. The denial was not interlocutory and not reviewable on appeal. Further, appellant could not have been prejudiced because she was provided the right to establish the merits of her position during trial. The Court next held that the trial court did not err in dismissing appellant’s individual claims against two class attorneys. Appellant entered into an agreed order specifying that the firm was the proper defendant, there was no merit to appellant’s claim that she was forced to enter the agreed order, and she waived the issue upon the signing of the agreed order and the filing of an amended complaint. The Court next held that the trial court properly limited appellant’s access to discovery as to other class actions and practices regarding fee splitting and opting out class members as the information did not have any correlation to whether appellant was entitled to a fee. The Court next held that the trial court did not abuse its discretion in prohibiting testimony regarding other counsels’ fee arrangements that had no relevance to whether appellant was entitled to a fee or if so, how much. The Court next held that the trial court properly excluded appellant’s expert evidence when appellant failed to show that the retired former judge possessed any specialized knowledge that would assist the trial court, since the trial court did not need guidance on the ultimate issues to be decided. The Court next held that appellant was not denied a fair trial as the trial court’s comments regarding her ethical violations could not improperly influence the same court during the bench trial. The Court next held that there was no merit to the claim that the trial court erred by entering orders that were inconsistent with prior court rulings. First, the issue was unpreserved as appellant failed to raise it in her prehearing statement as required by CR 76.03(8). Further, the prior judge in the case did not enter an order on the record that could be construed the law of the case. The Court next held that the trial court did not err in relying on Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), in addressing the proper measure for the allowance of a fee. Because the trial court concluded that appellant voluntarily withdrew from the case due to a conflict of interest, the appropriate method of determining what compensation she was owed was based on quantum meruit. Even if appellant could prove that she had a binding fee agreement, it could not be enforced when she voluntarily withdrew in the initial stages of the case. The Court next held that the trial court’s findings with respect to appellant’s ethical violations were based upon substantial evidence in the record that she violated SCR 3.130(1.3), (1.7), (1.9), and (1.16).

TORTS – Punitive damages, impeachment by employment of witness, pain and sufferering prior to death, voir dire, juror signing verdict: Fuel Transport, Inc. v. Gibson (COA 9/25/2009)

Fuel Transport, Inc. v. Gibson
2008-CA-000969 9/25/09 2009 WL 3047578 Rehearing pending

Opinion by Judge Clayton; Judge Thompson and Senior Judge Lambert concurred. The Court affirmed in part and reversed in part a judgment of the circuit court entered subsequent to a jury verdict in favor of an estate in a wrongful death case awarding compensatory and punitive damages.

The Court first held that the trial court did not abuse its discretion in denying a motion for a new trial based on a claim of juror misconduct. During voir dire, appellants failed to ask a proper question to elicit a response they complained was prejudicially omitted by the juror. Further, the juror did not sign the verdict form awarding compensatory damages. The Court next held that, although appellant failed to exercise reasonable care in failing to fix the coal truck that caused the accident, the failure did not rise to the level of wanton or reckless disregard for others so as to prove the gross negligence necessary for an award of punitive damages. Therefore, the trial court erred in overruling appellant’s motion for a directed verdict on the issues of punitive damages. The Court next held that the trial court properly admitted an affidavit regarding the ownership of the coal truck and the employment of the driver, as it affected the credibility of a key witness. The Court next held that appellants waived the right to challenge the award for pain and suffering when they failed to object to the $2 million limit on possible recovery. Even so, the award was supported by evidence that the deceased had intervals of consciousness until her death. The court then held that appellants’ failure to object to jury instruction until immediately prior to the reading of the instructions to the jury, and failure to request an instruction limitation for “conscious” pain and suffering, waived the issue. The Court finally held that the trial court properly denied appellants’ requests for change of venue.

TORTS – TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.

EMPLOYMENT – Workers compesation, retaliatory discrimination, attorneys fees: Colorama, Inc. v. Johnson (COA 9/4/2009)

Colorama, Inc. v. Johnson

2008-CA-000443 9/4/09 2009 WL 2834950 Released for pub. Opinion by Judge Caperton; Judges Thompson and Wine concurred. The court affirmed a judgment entered subsequent to a jury verdict finding that the employer retaliated or discriminated against a worker for filing a workers’ compensation claim

The Court first held that the worker met his burden to establish a prima facie case of discrimination Filing the workers’ compensation claim was an activity expressly protected under KRS 342.197, the employer knew that he had done so, the jury’s factual finding that the worker was terminated was not clearly erroneous, and the worker presented sufficient evidence for the jury to believe he was terminated in retaliation for seeking workers’ compensation benefits. The Court distinguished the case from Wymer v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001), because the worker in the instant case was released to return to work without restriction, he said he wanted to try to perform the work and he may have been able to assume a light duty position. While the evidence might have been conflicting, it was for the jury to weigh the evidence and reach a conclusion. Therefore, the Court did not err in denying the employer’s motion for a directed verdict. The Court finally held that the award of attorney fees and costs were authorized by KRS 342.197(3) and the trial court did not abuse its discretion in making the award. Even so, the employer’s failure to name the worker’s attorney as a party to the appeal ultimately precluded review of the issue.