TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes Aug. 27, 2010 (Nos. 807-833)

http://opinions.kycourts.net/coa/2010-CA-000319.pdf

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

COA 2010 Minutes Aug. 27, 2010 (Nos. 807-833)

  • Above link to minutes is full text of minutes with link to full text of each decision.

The Court of Appeals issues four decisions in this area.  The real suprise was the published decision in Cornett v. Bright which affirmed a zero pain and suffering verdict and even though the plaintiff was awarded medical expenses (all covered by PIP) and lost wages ($440, such that presumably 20 per cent was NOT covered by PIP) she was not considered the prevailing party and was NOT awarded her costs. 

In Cornett v. Baker, the COA affirmed summary judgement dismissing plaintiff's claims holding no genuine issue of material fact and concluding the defendants were not negligent and the plaintiff was solely negligent. 

Two workers compensation decisions were issued, but not to be published.

THE DECISIONS:

817. DAMAGES. ZERO PAIN AND SUFFERING VERDICT AFFIRMED.
CORNETT (ARLENA) VS. BRIGHT (LURA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)  STUMBO (CONCURS) AND WHITE (CONCURS)
2009-CA-001186-MR
TO BE PUBLISHED
LETCHER

NICKELL, JUDGE: Arlena Cornett appeals from a jury verdict entered by the Letcher Circuit Court in an automobile negligence case and an order denying her motion for a new trial. Cornett contends she was entitled to a new trial because the jury awarded her zero dollars for pain and suffering despite awarding her damages for past medical expenses and lost wages. After a careful review of the record, the law, and the arguments of the parties, we affirm.

Analysis:

I find two items from this decision disturbing.  The first relates to a redefinition of "pain and suffering" and the second centers on failure to recognize a prevailing party does not mean recovering a dime (but in this case she should have recovered some wages not paid by PIP).

The injury was a laceration to the right leg which is presumably a scar and thus a permanent injury and meets the first threshhold for filing a claim (and also met the $1,000 medical expense threshhold as well).

The jury awarded the plaintiff $3,500 in past medicals, $440.00 in lost wages, and nothing for future medical expenses and past and future "pain and suffering and permanent impairment to labor and earn money."  The plaintiff claimed the verdict was inconsistent and also sought an award of her costs.  The trial judge dismissed the action with prejudice upon defendant's motion AND denied plaintiff's motion for costs BUT awarded the defendant Bright his costs of $1,732.61.

Several errors were raised but I wish to address the zero "pain and suffering" verdict and the awarding/denial of costs.

Pain and suffering.   Lawyers and the courts limit the instructions to just pain and suffering when the statute says more  "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".   Although I submit that inconvenience is not an item that will break the bank, I think the Courts (trial and appellate) need to get off that judicial throne and recognize that a zero pain and suffering verdict needs to scrutinized more closely within the context of the law rather than what I perceive to be a redefinition of these damages by judicial fiat. 

Why do I say this?  Because it should be obvious to all that trips to the emergency room for treatment, resolution of medical bills, and missed work (for which you are never compensated fully by pip and for which you must wait a month or so at a minimum by statute) constitutes an inconvenience, at a minimum, and anguish from the unknown.

Thus, it is not a factual question of no "pain and suffering" but rather a judicial avenue permitting jury nullification.  Or to put it differently, there is pain and suffering which is not compensable and there is pain and suffering that is compensable.

Please note that the decisions originally addressing and permitting these zero pain and suffering verdicts addressed prior conditions and aggravation and subsequent incidents as being the source of the pain and suffering (while all along ignoring KRS 304.39-.060's prescription for damages – http://www.lrc.ky.gov/KRS/304-39/060.PDF).  Admittedly, an argument based upon inconvenience is not the strongest card in the deck, but to permit zero awards under the guise there is no factual pain, suffering, mental anguish, or inconvenience is dishonest if claiming there is none.  The real answer is that judicial economy is prevailing and an unspoken belief that not all pain, suffering, mental anguish, and inconvenience is compensable.  If so, say it outright.

As I indicated earlier, the zero verdicts of yesteryear would focus on some other cause for blaming the pain and the suffering (prior condition etc).  Now, the Court has grasped a particular sentence from the Miller v. Swift decision that "The law in Kentucky, however, does not require a ury to award damages for pain and suffering [note no mention of the other two items per statute] in every case in which it awards medical expenses."  42 S.W.3d at 601.  [This is not new as the Court of Appeals in Delphin v. Morely ignored a tibial plateau fracture, bleeding, and surgery as involving any pain and suffering and seemed to imply that pain medication might nullify pain and suffering.  Please note the undersigned handled that appeal (and lost), but now Justice Abramson was the trial judge, and now Justice Wilfrid Schroder dissented in the Court of Appeals.  Even more disturbing was language in the Delhin v. Morely decision ignoring assertions by all medical providers of pain and suffering, concessings by defense counsel of pain and suffering during opening and closing.  Motion for discretionary review was denied by the Supreme Court.  The COA decsion is not binding and has never been cited by a single appellate court.]

This analysis in Cornett is suspect for the following reasons:

  • Medical expenses are not the only driving force behind the award of pain and suffering etc.
  • Two physicians testified no reason for he plaintiff to suffer from pain, the injury did not impair her ability to engage in activities,  and her initial complaint at the hospital was "numbness in the area of her injury."  Whether or not these were treating physicians or hired examiners in the pay of the insurance company's counsel is not clear.  What is clear was there was numbness. 
  • Another doctor did testify that the plaintiff did suffer a nerve injury in her leg.

What was the COA's response?  A jury is not bound to believe a plaintiff or her doctors.  Well, believe the "numbness" which in itself is inconvient and may cause anguish by its persistence.

The next issue on appeal related to the judge's offset for medicals and wages against the verdict.  The trial court and the Court of Appeals are correct regarding the post-verdict resolution of this award.  What they have missed is that lost wages (unlike the medical expenses) are not awarded en toto.  KRS 304.39-120 subtracts therefrom 15% in the calculation of net loss.  What does this mean?  Presumably, the plaintiff's gross wage loss was greater than $440.  This should have been awarded (in  spite of case law which may be to the contrary regarding the first $10,000 being excluded since this is sloppy analysis ignoring the details).  Thus, the plaintiff prevailed, should have been awarded costs, and the defendant should not have been awarded costs.

The net effect of this decision is more offers of judgment on the low end, more jury nullifications in the area of pain and suffering (and mental anguish and inconvenience), and an increased lack of sensitivity to the real world by the judiciary.

 


826
CORNETT (MARONIAKA)
VS.
BAKER (BRICE), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2009-CA-002161-MR
NOT TO BE PUBLISHED
LETCHER

STUMBO, JUDGE: Maroniaka Cornett appeals from an order granting summary judgment to Brice Baker, American Fire and Casualty Company, and Leslie, Knott, Letcher and Perry Community Action Council, Inc. Cornett argues that summary judgment was inappropriate as there were genuine issues of material fact. We find the trial court correctly granted summary judgment and affirm.

We find that summary judgment was warranted in this case. There is no evidence that Baker did anything to cause the collision and Cornett freely admits that she fell asleep at the wheel. Cornett speculates that Baker could have done more to avoid the collision, but all of the evidence points to the fact that he did all he could. Mere speculation is not sufficient to survive a motion for summary judgment. O’Bryan v. Cave, 202 S.W.3d 585 (Ky. 2006).

Kentucky courts have held that “where one is placed in a position of peril by another he is not held to strict accounting for the means he uses to escape.” Sellers v. Cayce Mill Supply Co., 349 S.W.2d 677, 679 (Ky. 1961). Baker did all he reasonably could to avoid this accident. He applied his brakes and moved as far right as he could. There is no evidence he could have taken any other action.

Based on the above, we affirm the order of the trial court.

831
SSW HOLDINGS CO./COLLIS, INC.
VS.
BEARD (BARBARA), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
WINE (CONCURS) AND HARRIS (CONCURS)
2010-CA-000319-WC
NOT TO BE PUBLISHED
WORKERS' COMP

MOORE, JUDGE: SSW Holdings Co./Collis Inc. petitions for the review of an opinion of the Workers' Compensation Board affirming the decision of a Administrative Law Judge (ALJ) finding Barbara Beard permanently and totally disabled pursuant to the requirements of Kentucky’s Workers’ Compensation Act. Finding no error in the decisions of either the ALJ or the Board, we affirm.

832
BEECHFORK PROCESSING, INC.
VS.
FLETCHER (JOHN M.), ET AL.
OPINION REVERSING AND REMANDING
HARRIS (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2010-CA-000379-WC
NOT TO BE PUBLISHED
WORKERS' COMP

HARRIS, SENIOR JUDGE: Beechfork Processing, Inc. (Beechfork) appeals from a Workers’ Compensation Board (Board) opinion affirming the Administrative Law Judge’s (ALJ) award of medical expenses to John Fletcher. Following a careful review of the record, briefs, and authorities, we conclude that the ALJ erred by failing to make a finding as to whether the hearing loss which Fletcher has incurred while working for the Beechfork occurred within two years of the filing of his claim. Thus, we reverse the Board’s opinion and remand this case to the ALJ for further proceedings.

 

 

 

 

 

 

 

 

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