Kentucky Tort Report

Pain and suffering is not marital property, but that portion of a settlement or verdict attibutable to income loss is marital property: Fitzgerald v. Hammock, NPO, 2/8/2008, COA

The Kentucky Court of Appeals rendered a decision (not for publication) in the tort area on 2/8/2008 which you don't see too often.  It came within the family law context of a divorce, but it addresses the general rule that a claim before the marriage is not marital property and the pain and suffering component of a claim accruing during the marriage is also not marital property but that portion of the settlement/verdict attributable to income is marital property.  Here, the COA determined the claim of the husband was not for wage or income.

FITZGERALD V. HAMMOCK
TORTS:  Personal injury claim (workers compensation claim) and spousal property
2006-CA-002347
NOT PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING JUDGE; NICKELL AND LAMERT CONCUR
COUNTY:  WARREN
DATE RENDERED: 2/08/2008

Debra Lynn Fitzgerald appeals from an order denying her post-dissolution motion to divide as marital property certain money her ex-husband, James Charles Hammock, received in settlement of a work-related lawsuit filed during the marriage.

The DRC opined that under Weakley v. Weakley, 731 S.W.2d 243 (Ky.1987), these damages were nonmarital property. The circuit court approved the DRC's recommendations after reviewing the complaint, summary judgment order, and confidential settlement agreement in James's claim, as well as Debra's exceptions to the DRC's report and James's response thereto.  COA affirmed trial court.

In Weakley, 731 S.W.2d at 245, the Kentucky Supreme Court held that when a spouse suffers a personal injury before his marriage, “the entire compensation received therefor is nonmarital ... regardless of when the judgment or settlement is obtained or whether the recovery is for the loss of wages, replacement of earning capacity, or pain and suffering.” On the other hand, if a spouse suffers a personal injury during the marriage, the portion of his recovery for loss of earnings and permanent impairment of his ability to earn money representing the years the parties were married is marital property. Id. at 244. By contrast, the portion of his recovery for the same damages representing the remaining years of his life expectancy following the dissolution of the marriage is nonmarital. Id. Also nonmarital is any portion of the award representing damages for pain and suffering. Id. at 245

Debra argues, however, that Reeves v. Reeves, 753 S.W.2d 301 (Ky.App.1988), rather than Weakley, is dispositive of the matter now before us. In Reeves, the husband was injured at work during the marriage. He settled his claim under the Jones Act for $175,000. After payment of medical and legal expenses, $107,500 remained. Although the husband voluntarily paid the wife $7,500, the trial court awarded the wife 25% of the $107,500. On appeal, this court held that Weakley was inapplicable to the matter because it was unknown “what portion of [the husband's] award was to be considered as payment for pain and suffering.” Reeves, 753 S.W.2d at 301. This court therefore held that the husband's award was marital property under KRS 403.190. FN3

Here, James maintains on appeal that he “did not lose any earnings or income as a result of his asbestos exposure during his employment. His only damages in the sole remaining claim of outrage would have been for pain and suffering.” FN4 Debra neither disputes these claims nor provides any evidence that marital funds were spent on medical monitoring, decontamination, or the like. Accordingly, the trial court did not err by finding that James met his burden of proving that his settlement was for pain and suffering and therefore constituted nonmarital property which was not subject to division.

NPO - Damages, reasonable and necessary medicals: Rogers v. Belluscio (NPO COA 10/19/2007)

ROGERS V. BELLUSCIO
TORTS: DAMAGES - REASONABLE AND NECESSARY MEDICALS
2006-CA-001804
AFFIRMING; KELLER, VANMETER, GUIDUGLI
NOT TO BE PUBLISHED: 104
DATE RENDERED: 10/19/2007

Punitive Damages Affirmed: GERSH V. BOWMAN SC 10/5/2007

GERSH V. BOWMAN
TORTS: DAMAGES, Punitive
2006-CA-001566
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/05/2007

CA affirms judgment against driver in this single vehicle MVA case. CA holds that defendant's conduct rose to the level of gross negligence warranting a punitive damage instruction and that appellant failed to preserve an objection to the pain and suffering instruction.

High school student Maxwell Gersh, travelling with fellow students Samantha Bowman and Michael McLaurine, attempting to negotiate a sharp 15 mph curve in the dark traveling at approximately 49 mph, despite McLaurine's warning. Bowman suffered extensive facial and cervical injuries resulting in 7 surgeries with at least 2 more to follow. Prior to trial, Gersh's motion for summary judgment precluding punitive damages was denied. At trial, Gersh objected generally to the jury instructions and specifically to the punitive instruction. The jury awarded all medicals, $250K in wage; pain & suffering of $2 million; and punitives of $100K.

On appeal, Gersh argued error in denying his motion for summary judgment precluding punitives and argued that the pain & suffering verdict was excessive. CA holds that Gersh's gross negligence merited the punitive damage instruction and that his general objection failed to preserve his objection to the pain & suffering instruction, which was capped at $2 million, the figure the jury awarded.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

TORTS: FELA (STATE LAW FOR PROCEDURE; FEDERAL SUBSTANTIVE LAW); MEETING BURDEN TO GO TO JURY; FORESEEABILITY STANDARD; EXPERTS AND DAUBERT; DAMAGES AND TAX CONXEQUENCES TO AWARD; PRESENT VALUE OF AWARD

CSX TRANSPORTATION, INC. V. MOODY
TORTS:  FELA (STATE LAW FOR PROCEDURE; FEDERAL SUBSTANTIVE LAW); MEETING BURDEN TO GO TO JURY; FORESEEABILITY STANDARD; EXPERTS AND DAUBERT
DAMAGES:   TAX CONSEQUENCES OF AWARD; PRESENT VALUE
2005-CA-001494
PUBLISHED: AFFIRMING IN PART AND VACATING IN PART
PANEL:  THOMPSON, PRESIDING;  DIXON, HENRY CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 7/13/2007

CA affirms in part and vacates in part the $2.74 million jury verdict in favor of plaintiff-appellee in this Federal Employer's Liability Act (FELA) toxic exposure case. The CA vacates only $200,000 speculatively awarded for future medicals in this thorough and succinctly-written opinion.

Plaintiff-appellee was exposed to solvents between 1978 and 1982 and suffered a permanent psychiatric neurological injury. A jury awarded him future medicals of $200,000; impairment of earning capacity $540,000; past pain & suffering $1 million and future pain & suffering $1 million. CSX appealled on issues of foreseeability; jury instructions; Daubert; causation; admission of evidence; and damage calculations.

CA held that ample evidence supported foreseeability under FELA and that the general negligence instruction given was not error. CA also found no error in admitting evidence of prior claims of solvent exposure by other employees as they occurred under "substantially similar" conditions. CA held, however, that plaintiff-appellee failed to present evidence upon which future medicals could be accurately calculated and that, therefore, the jury's award was speculative and must be vacated. Future lost wages, however, were awarded within the jury's ability to make its own determination. CA also held that the TC should have instructed the jury that lost wages are not taxable, but that, since the defendant failed to present evidence from which the jury could appropriately reduce the award, the failure was harmless error. Also, no error for failure to instruct jury to reduce the award to present value.

POLLUTION AND TRESPASS, DAMAGES: SMITH V. CARBIDE AND CHEMICALS CORP. (SC 6/21/2007)

SMITH V. CARBIDE AND CHEMICALS CORP.
TORTS:  INTENTIONAL TRESPASS, ELEMENTS, ACTUAL HARM
DAMAGES:  DIMINUTION IN PROPERTY VALUES
2005-SC-000686-CL.pdf
PUBLISHED: CERTIFYING QUESTION OF LAW FROM US 6TH CIR. CT. OF APPEALS
MAJORITY OPINION BY SCHRODER; CUNNINGHAM DISSENTS W/SEP OP; MINTON DISSENTS W/SEP OP IN WHICH LAMBERT JOINS
DATE RENDERED: 6/21/2007

SCOKY certified the law on two questions from the U.S. Sixth Circuit Court of Appeals arising from claims of groundwater contamination by property owners within ten miles of the Paducah Gaseous Diffusion Plant

Question No. 1: Is proof of actual harm required to state a claim for an intentional trespass?  Answer: No.

When the evidence was vague as to the amount of damage, but where a trespass has been committed upon the property of another, he is entitled at least to nominal damages for the violation of his rights. 

Question No. 2: If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law? Answer:  Cannot be answered simply yes or no as this question confuses the "right to recover" with the "measure of damages" as a substitute "for proof of actual harm".  Kentucky law allows the recovery of just compensation (not merely nominal damages) upon proof of actual injury to the real estate . Hughett, 313 Ky. at 90, 230 S.W.2d at 96.

Once the particular injury to real estate is shown, the diminution in fair market value is a recognized measure of damages.  Thus, the preliminary question in a contamination case in Kentucky is at what level does the trespass evolve from a mere stigma, or damage to the reputation of the realty, into an actual injury or harm?

To reach the question posed, the Sixth Circuit must determine whether the contaminants in this case create an actual injury - an interference with an owner's use of the land.  Mere damage to the reputation of realty does not entitle one to recovery, as that injury is more imaginary than real. Likewise, the mere presence of contaminants may only damage the property's reputation and not its use .  The Court of Appeals in Rockwell, 143 S .W.3d at 604, set the bar for a compensable harm in negligent trespass cases to fall at the point where the contaminants cause a health hazard.  Relying on the rationale in Wood v. Wveth-Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002), a products liability case with a question as to "harm to the person," the Rockwell court reasoned that the mere presence of PCB's itself was not an injury, that some physical harm needed to be shown. 

SCOKY then noted it was not as forgiving in identifying actual injury to real property, whether by intentional or negligent trespass . When the intrusion is through imperceptible particles not visible to the naked eye, there may still be an actual injury.  An intrusion (or encroachment) which is an unreasonable interference with the property owner's possessory use of his/her property is sufficient evidence of an actual injury (or damage to the property) to award actual damages.

When the parcel's groundwater is contaminated, whether by imperceptible particles or visible particles, to the extent that it cannot be used for consumption by humans, animals, or crops, there is an actual injury.

The amount of harm, if any, to the individual parcels, and the corresponding measure of actual or compensatory damages will depend upon the proof introduced at trial - an issue of fact.

To the extent that the property owners prove actual or compensatory damages for the harm (the cost of restoring the property to the pretrespass condition), "the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery."  Thus, the diminution in the property's value due to an intentional trespass is a recognized measure of damages after, or if, an actual injury has been found.

Digested by Michael Stevens

SMITH V. CARBIDE AND CHEMICALS CORP.
TORTS:  INTENTIONAL TRESPASS, ELEMENTS, ACTUAL HARM
DAMAGES:  DIMINUTION IN PROPERTY VALUES
2005-SC-000686-CL.pdf
PUBLISHED: CERTIFYING QUESTION OF LAW FROM US 6TH CIR. CT. OF APPEALS
MAJORITY OPINION BY SCHRODER; CUNNINGHAM DISSENTS W/SEP OP; MINTON DISSENTS W/SEP OP IN WHICH LAMBERT JOINS
DATE RENDERED: 6/21/2007

SCOKY certified the law on two questions from the U.S. Sixth Circuit Court of Appeals arising from claims of groundwater contamination by property owners within ten miles of the Paducah Gaseous Diffusion Plant

Question No. 1: Is proof of actual harm required to state a claim for an intentional trespass?  Answer: No.

When the evidence was vague as to the amount of damage, but where a trespass has been committed upon the property of another, he is entitled at least to nominal damages for the violation of his rights. 

Question No. 2: If the plaintiffs can prove a diminution in their property values due to an intentional trespass, do they have a right of recovery under Kentucky law? Answer:  Cannot be answered simply yes or no as this question confuses the "right to recover" with the "measure of damages" as a substitute "for proof of actual harm".  Kentucky law allows the recovery of just compensation (not merely nominal damages) upon proof of actual injury to the real estate . Hughett, 313 Ky. at 90, 230 S.W.2d at 96.

Once the particular injury to real estate is shown, the diminution in fair market value is a recognized measure of damages.  Thus, the preliminary question in a contamination case in Kentucky is at what level does the trespass evolve from a mere stigma, or damage to the reputation of the realty, into an actual injury or harm?

To reach the question posed, the Sixth Circuit must determine whether the contaminants in this case create an actual injury - an interference with an owner's use of the land.  Mere damage to the reputation of realty does not entitle one to recovery, as that injury is more imaginary than real. Likewise, the mere presence of contaminants may only damage the property's reputation and not its use .  The Court of Appeals in Rockwell, 143 S .W.3d at 604, set the bar for a compensable harm in negligent trespass cases to fall at the point where the contaminants cause a health hazard.  Relying on the rationale in Wood v. Wveth-Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002), a products liability case with a question as to "harm to the person," the Rockwell court reasoned that the mere presence of PCB's itself was not an injury, that some physical harm needed to be shown. 

SCOKY then noted it was not as forgiving in identifying actual injury to real property, whether by intentional or negligent trespass . When the intrusion is through imperceptible particles not visible to the naked eye, there may still be an actual injury.  An intrusion (or encroachment) which is an unreasonable interference with the property owner's possessory use of his/her property is sufficient evidence of an actual injury (or damage to the property) to award actual damages.

When the parcel's groundwater is contaminated, whether by imperceptible particles or visible particles, to the extent that it cannot be used for consumption by humans, animals, or crops, there is an actual injury.

The amount of harm, if any, to the individual parcels, and the corresponding measure of actual or compensatory damages will depend upon the proof introduced at trial - an issue of fact.

To the extent that the property owners prove actual or compensatory damages for the harm (the cost of restoring the property to the pretrespass condition), "the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery."  Thus, the diminution in the property's value due to an intentional trespass is a recognized measure of damages after, or if, an actual injury has been found.

Digested by Michael Stevens

Damages: D.C. Circuit Reverses Itself on Taxing Nonphysical Personal Injury Damages

From the Federal Civil Practice Bulletin:

D.C. Circuit Reverses Itself on Taxing Nonphysical Personal Injury Damages

Per Murphy v. IRS , --- F.3d ----, 2007 WL 1892238 (D.C. Cir. July 03, 2007) (NO. 05-5139):

. . . [I]n 1996 the Congress amended § 104(a) to narrow the exclusion to amounts received on account of "personal physical injuries or physical sickness" from "personal injuries or sickness," and explicitly to provide that "emotional distress shall not be treated as a physical injury or physical sickness," thus making clear that an award received on account of emotional distress is not excluded from gross income under § 104(a)(2). Small Business Job Protection Act of 1996, Pub.L. 104-188, § 1605, 110 Stat.

click on heading for his entire post!

SCOKY holds permanent injury warrants permanent impairment of earning power instruction and guidelines for required proof

SCOCKY has ruled in Reece v. Nationwide Ins. Co. that "the plaintiff need only prove with reasonable probability that the injury is permanent in order to obtain an instruction on permanent impairment of earning power".   

This decision is significant  for several reasons. First, SCOKY was unanimous with all concurring in Justice Schroder's majority opinion.  Second, the rule is now clear when the plaintiff is entitled to instructions on what are typically referred to as "future wages" or "impaired capacity to labor and earn money."

A permanent injury entitles plaintiff to an instruction on capacity to earn money in the future. . . . period.  No requirement for a vocational expert of other expert to connect any permanent restrictions to employment; no requirement for an AMA impairment rating.  The jury is trusted to handle the decision based upon the doctor stating a permanent injury, and the plaintiff can simply testify how he or she is affected.

Of course, what is required to present the matter to the jury is not necessarily what will be sufficient to persuade the jury on the value of those damages for an award.  The family doctor testifying the neck strain is permanent may run counter to the jury's common sense understanding such that they might simply ignore it and award nothing. 

Should the jury disbelieve the minimal proof, then presumably the jury's verdict will not be upset on appeal.  When it comes to pain and suffering (and mental anguish and inconvenience), the appellate courts have yet to disturb a verdict which awarded nothing for the pain and suffering in the face of awarding medical expenses for the injuries. 

When you trust a jury of your peers to make the decision, it seems the courts are trusting the jury's decision since they are in the best position to evaluate all the evidence (but subject to the judge's ruling on any new trial motions which is then subject to an abuse of discretion standard - again which has not been reversed on appeal yet).

In the Reece v. Nationwide case at trial, the expert testimony of the treating physicians centered on a car accident injury which was sandwiched in between two well-documented accidents with disc injuries and whether or not the plaintiff's attorney had asked the right question and obtained the right answer as to how the injury from THIS accident (as opposed to her cumulative injuries) were permanent and impacted earnings capacity.  One treating physician testified the accident caused a permanent strain/sprain and had referred the plaintiff to a neurosurgeon who opined the accident made the prior disc heriation worse.  The plaintiff did not offer any expert testimony at trial on how the injuries affected her future earnings capacity, but she did testify herself about her career plans were affected by her accident injuries and restrictions.    At trial, the judge granted defense counsel's motion for a directed verdict on permanent injury and permanent impairment on earnings - no instructions and not submitted to the jury.

In addition to the permanency issues at trial, the defense counsel offered testimony that one of the plaintiff's treating physicians had his medical license suspended after the trial deposition had been taken.  SCOKY held it was error to allow in evidence of the medical license suspension of one of appellant's treating physician witnesses.  However, the issue on the medical license was addressed on grounds of relevancy and prejuce; and not under KRE 608 regarding impeachment which the court noted was not raised by counsel at trial and would not be resolved by SCOKY on appeal.

Here is some language from the decison:

We hold that evidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and that the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment.

* * *

While specific expert witness testimony on permanent impairment of earning power is helpful and often persuasive, see Louisville Metro Hous. Auth . v. Burns, 198 S .W.3d 147, 151 (Ky.App. 2005), it is not necessary to submit the issue of permanent impairment of earning power to the jury. See Pickard Chrysler, Inc. v. Sizemore , 918 S.W.2d 736, 739-40 (Ky.App. 1995) (upholding award of damages for permanent impairment of earning power where there was no expert testimony on how plaintiff's earning power was affected and little evidence of past job history and earnings) . The plaintiff need only show with reasonable probability that the injury sustained is permanent. Rogers v. Sullivan, 410 S.W.2d at 628 . This Court recognizes that a permanent injury may not always result in permanent impairment of earning power. Like the Chesapeake Court, we believe jurors are capable of determining, from the evidence and their common knowledge and experience, whether there has been a permanent impairment, the extent of such impairment, and the value of such impairment.

When reading the cross-examination of the treating physician, it is and was obvious there were issues pertaining to what injuries were caused by the accident versus before and after (since she injured a disc in a cheerleading fall).  With those issues raised in the testimony, defense counsel at the time was placed in the dilemma of how far to pursue the questioning since the burden was perceived to be on the plaintiff to prove permanency and permanent impairment.   What has now been resolved on appeal is that the standard for a permanent impairment instruction is minimal, and defense counsel will vigorously cross-examine on those limitations and might even ask the question of the doctor if he/she believes the patient's ability to work has been affected.  Do not forget that the AMA Guidelines on Permanent Impairment may be relied on heavily in workers compensation proceedings to calculate the economic loss of future wages, they have no such correlation in a personal injury case.   But testimony of no permanent impairment by the guidelines will offer an interesting, if not devastating, counter to any general opinion of a permanent injury or strain - the injury is permanent but they are not impaired by it. 

I suspect cross-examinations in the future on these topics will go further than what we have previously become accustomed to since the concerns over proving the plaintiff's case are removed once the doctor says "permanent injury".

Torts: Nonpublished Decision Highlights No Presumption that medical bills caused by accident just because presumed reasonable and necessary

In this nonpublished decision, the Kentucky Court of Appeals reminded us that the presumption of reasonableness of medical expenses does not leap to a presumption that they were proximately caused by the accident.

In Morgan v. Morgan, 2005-CA-001739, 10/27/2006, Not Published,  a love triangle resulted in a two car accident with one of the women hurt and suing her male friend driver and the other female driver.  The judge denied her directed verdict motion (affirmed on appeal), and the jury apportioned fault at 60-40, but when it came to damages, the award was zero up and down the line.

The plaintiff had a pre-existing condition, and the jury verdict was affirmed.  No presumption of causation even tho the medical expenses were presumed reasonable

Releases: Is there a law allowing a claimant to rescind a release? No.

The recent letter to the editor in the Courier-Journal claiming predatory insurance practices regarding approaching claimants to settle cases prompted a citation to a recent Supreme Court case affirming the settlement and release obtained by an adjuster and dismissing the personal injury claim.

Here is an extract of that editorial again by William Adkins of Williamstown, Kentucky, as well as the link and extracts from the Kentucky decision.

Insurers 'more predatory' [letter to editor in 9/5/2006 Courier-Journal]

Is there a statute that would prohibit an insurance company or defendant in a civil case from preying upon grieving relatives by having them agree to lesser settlements than they might receive with counsel?

The answer to this question is a simple "no".   And within the last year, a claimant has tried in vain to rely upon the Kentucky Unfair Claims Settlement Practices Act to protect herself following a release signed just one day after a car accident.

In Margaret Coomer v. Charlie Phelps and Progressive Northern Ins. Co., the Kentucky Supreme Court affirmed summary judgment dismissing a claim in which the injured party signed a settlement and release the day after the accident.  Coomer settled for $500 thinking she only bruised her knee, but learned later that week that the emergency room misdiagnosed the injury, and the bruised knee was in reality a fractured patella. 

The majority opinion was authored by Justice John Roach affirming the Court of Appeals decision denying Coomer her attempt to invalidate the release due to mutual mistake, constructive fraud, incapacity, and the Kentucky Unfair Claims Settlement Practices Act.

Here are the facts: