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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
Linda A. Kult and Ronald Kult
Sherlyn Kelly, as administratrix of the estate of Billy Jack
Appeal from Baldwin Circuit Court
After Linda Kult was injured in a multivehicle automobile
accident in Baldwin County, she and her husband, Ronald Kult,
sued multiple individuals who had also been involved in the
accident, along with relevant insurance companies, in the
Baldwin Circuit Court, alleging negligence and/or wantonness.
Ronald Kult also stated a loss-of-consortium claim.
a two-day trial, the jury returned a verdict awarding Linda
Kult $100,000; it awarded Ronald Kult nothing.
entered on that damages award.
The Kults, who
On March 8, 2001, Ronald Kult's cousin, Frank Pribil,
gave the Kults a ride in his vehicle to pick up their vehicle,
which was at another location.
As they were traveling west on
Canal Road in Orange Beach, Pribil stopped his vehicle behind
some other vehicles that were waiting on a school bus, which
had stopped to unload children.
While they were waiting,
their vehicle was struck from the rear by a vehicle owned and
operated by Billy Jack Kelly.
Kelly's vehicle was struck
either before or after it ran into Pribil's vehicle by a
vehicle owned by Fay Imbrenda and being operated by Brandy
The force of Kelly's vehicle striking Pribil's
vehicle also propelled Pribil's vehicle into the vehicle in
front of it, which was owned and being operated by Larry
Whitaker, which then struck the vehicle in front of it, which
was owned and being operated by Ronald Foisie.
after the accident, where she was treated for neck, back, leg,
and a rib pain.
She was diagnosed with a cervical strain and
a rib injury; medication was prescribed to assist with the
In early April 2001, the Kults returned to Minnesota,
consulted with a number of doctors and medical professionals
concerning her injuries and ongoing pain, including Dr. Martha
Sanford, her primary physician in Minnesota; Dr. Bartee, 2 an
Minnesota; Dr. Thomas Yearwood, a pain specialist in Fairhope;
Dr. Marcus Schmitz, a neurosurgeon in Florida; Dr. Paul Matz,
a physician in Birmingham; Dr. Kim, a physician in California;
neurologist in Minnesota; and Dr. Krauss, a
neurosurgeon in Minnesota.
However, Linda did not obtain a
Although the Kults are residents of Minnesota,
regularly spend the winter months in Alabama.
No first name is provided in the record for several of
substantial measure of relief until April 2003, when Dr. John
endoscopic procedures to remove three thoracic (middle-back)
and three lumbar (lower-back) disks in her back.
Linda testified that she continues to have a loss of feeling
in some areas of her right side but that she was finally able
to discontinue the use of pain medication approximately two
months after Dr. Chiu operated on her back.
On March 10, 2003, the Kults sued Brandy Cherie Hart, Fay
Imbrenda, Billy Jack Kelly, Frank Pribil, Larry Whitaker, and
Ronald Foisie, alleging that their negligent and/or wanton
misconduct had caused the automobile accident that resulted in
Because Hart, Imbrenda, and Kelly were all
uninsured at the time of the accident, the Kults also named
National Mutual Insurance Company, as a defendant.
parte State Farm Mut. Auto Ins. Co., 893 So. 2d 1111, 1115
(Ala. 2004) ("Under Alabama law, a plaintiff may join as a
defendant his uninsured/underinsured-motorist carrier in an
action against another motorist.
Ex parte Boles, 720 So. 2d
911, 914-15 (Ala. 1998).").
The Kults later amended their
complaint to add as a defendant Auto Owners Insurance Company,
Pribil's uninsured/underinsured-motorist carrier.
After the discovery process began, Foisie, Pribil, and
Whitaker all individually moved for summary judgments.
trial court granted Foisie's motion on March 10, 2004, and
Insurance Company and Auto Owners Insurance Company, also
filed separate motions to "opt out" of the litigation pursuant
to this Court's decision in Lowe v. Nationwide Insurance Co.,
insurance company has the right to elect either to participate
or not to participate in a trial in which a plaintiff seeks to
recover from the alleged uninsured/underinsured tortfeasor
while also seeking benefits from the insurer pursuant to an
uninsured/underinsured-motorist policy; under either election,
the insurer is bound by the fact-finder's decisions on the
issues of liability and damages.
Both Western National Mutual
motions to opt out were granted.
Thus, when the case was
called for trial on September 11, 2006, the only remaining
administratrix of the estate of Billy Jack Kelly, deceased. 3
Hart and Imbrenda, however, failed to appear in court on that
date, and, when they again failed to appear on September 14,
2006, the trial court granted the Kults' motion for a default
judgment as to those defendants.
The Kults then asked the trial court to allow them to
present evidence so the trial court could immediately assess
objected, the trial court indicated that it would hear that
evidence later, and the trial commenced.
After the Kults
presented their case, Kelly moved for a judgment as a matter
of law on the negligence and wantonness claims.
court denied the motion as to the negligence claim but entered
Kelly then presented her defense, and the
case was submitted to the jury, which ultimately returned a
Billy Jack Kelly had died before the Kults filed this
action; his wife, Sherlyn Kelly, as administrator of his
estate, was subsequently substituted as a defendant.
awarding Linda $100,000 and Ronald nothing.
Because she had previously offered to settle the case for
$250,000, Kelly filed a postjudgment motion to tax costs to
the Kults; however, after a hearing, she withdrew her motion.
The Kults also moved for an additur or, in the alternative,
for a new trial; however, their motion was denied by the trial
court, and, on December 27, 2006, the Kults filed this appeal.
"In discussing the standard of review in an
appeal from a judgment based on a jury verdict where
the trial court has denied a motion for a new trial,
this Court has stated:
"'"Jury verdicts are presumed correct,
and this presumption is strengthened by the
trial court's denial of a motion for a new
Therefore, a judgment based on a
jury verdict will not be reversed unless it
is 'plainly and palpably' wrong."'
"Tanksley v. Alabama Gas Corp., 568 So. 2d 731, 734
(Ala. 1990) (quoting Davis v. Ulin, 545 So. 2d 14,
15 (Ala. 1989))."
Petty-Fitzmaurice v. Steen, 871 So. 2d 771, 773 (Ala. 2003).
Thus, to determine whether the Kults are entitled to a new
trial, we must determine whether they have established that
the judgment entered on the jury's damages award was "'plainly
The Kults first argue that the trial court erred when it
declined to assess damages against the defaulting defendants,
Hart and Imbrenda, immediately after the default judgments
against Hart and Imbrenda were entered.
The Kults argue that
the trial court was required to do so by Rule 38(d), Ala. R.
Civ. P., which provides, in pertinent part, that "[a] party
seeking affirmative relief may withdraw that party's demand
for a jury as to any defaulting party without the consent of
that party and have that party's damages assessed by the court
without a jury."
Kelly argues that the trial court did not
err and that the court was entitled to wait to assess damages
against Hart and Imbrenda until after the trial pursuant to
Rule 55(b)(2), Ala. R. Civ. P., which authorizes the trial
court to "conduct such hearings or order such references as it
deems necessary and proper" when assessing damages against
Kelly also argues that the Kults waived
any argument in this regard by agreeing, when the verdict form
was drafted, that whatever verdict was entered against Kelly
Kults' attorneys held the following colloquy with Kelly's
attorney and the trial court judge to discuss the format of
the verdict form:
"PTF ATTY 1:
And just to clarify, we do have a
default judgment against one of the
"PTF ATTY 2:
Two of them.
"PTF ATTY 1:
Against two of them ––
"PTF ATTY 1:
Both of which were ––
And we read that into the record at
the beginning of the case.
And whatever this jury does with this
case, whatever judgment is entered
it's joint and several against them,
the estate, whatever.
"PTF ATTY 3:
"PTF ATTY 1:
But, judge, how do we need to get a
default judgment as to damages as to
You're about to do it.
"PTF ATTY 1:
Those two defendants.
Whatever the jury comes back with ––
Whatever the jury comes back with.
–– that's against them also.
It's against not only my client but
the rest of them. Bottom line is the
carrier picks up the tab regardless of
who the defendant is.
"PTF ATTY 2:
Judge, you are going to give the joint
and several instruction?
No, no, because, remember, we think
that will be confusing to them. What
we've agreed on the record, that any
judgment will be joint and several
against the two defendants that you
took a default against ––
"PTF ATTY 2:
–– and the estate."
Thus, during this discussion, the Kults' attorneys agreed that
Imbrenda, would be included in the amount the jury awarded the
Kults on their claims against Kelly.
They did not at that
time state or otherwise indicate in any way that they still
wanted the trial court to assess damages separately against
Hart and Imbrenda.
Thus, their argument that the trial court
erred in failing to do so was waived.
The Kults next argue that the jury's general verdict was
inconsistent because, although the jury returned a verdict in
their favor, it awarded Ronald no damages. 4
The Kults argue
that Ronald should have been awarded damages in connection
with travel expenses he incurred traveling with his wife to
incurred that he paid for, as well as damages in connection
with his own loss-of-consortium claim.
Kelly argues that
Linda also testified as to their travel and medical expenses
and that the $100,000 she was awarded compensated both her and
awarding Ronald no additional damages, deemed his loss-ofconsortium claim to be without merit.
indicated that he spent at least $9,000 for travel expenses
and that he charged a $9,000 down payment to his credit card
The completed verdict form read: "We, the Jury, find in
favor of Plaintiffs and against Defendant, and we award
damages in the amount of $100,000 for Linda Kult and $0 for
Ronald Kult." (Emphasis added.)
for Dr. Chiu's treatment of Linda.
However, as Kelly has
noted, Linda testified as to those same expenses during the
In Cook v. Sweatt, 282 Ala. 177, 209 So. 2d 891
(1965), a husband and wife filed separate actions after the
wife was injured in an automobile accident.
The cases were
consolidated for trial, and the husband appealed after the
jury returned a verdict in his wife's favor, but also returned
a verdict against him.
This Court stated:
"Since the appellant and his wife both claimed
damages for the medical expenses incident to the
treatment of the wife's injuries, we are of the
opinion that both claimants should not be allowed to
recover this expense.
The trial court so charged
This appeal is on a single record,
consolidating the pleadings, rulings, testimony, and
transcript of both cases.
"We have no way of knowing from the verdict what
damages the jury considered and included in their
verdict, but we can tell from the evidence that they
had an opportunity to include the medical expense in
their verdict for the wife, and which she claimed in
Cook, 282 Ala. at 179, 209 So. 2d at 892.
The jury in the
medical [and travel] expense[s] in their verdict for [Linda],"
and, as further discussed in Part V of this opinion, it is
reasonable to assume that the $100,000 verdict returned in
Linda's favor did, in fact, include those expenses.
simultaneously compensate Ronald for those same expenses.
Ronald has also argued that the general verdict returned
by the jury, finding in favor of the plaintiffs, indicates
that it found Kelly liable on his loss-of-consortium claim
and, therefore, that the jury's failure to
necessitates a new trial.
award him any
This Court has previously stated
that "[a]n award of zero damages on a verdict rendered in the
plaintiff's favor is patently inconsistent" and ordered a new
trial on that basis.
Jones v. Carter, 646 So. 2d 651, 653
However, that principle is inapplicable here
because the jury did not, in fact, find in favor of Ronald on
finding on that claim because the Kults waived that claim when
the trial court did not instruct the jury on it and the Kults
made no objection.
In Regions Bank v. Plott, 897 So. 2d 239,
246-47 (Ala. 2004), we stated:
"It is well established that '"[u]nchallenged
jury instructions become the law of the case."'
Alabama Dep't of Transp. v. Land Energy, Ltd., 886
So. 2d 787, 795 (Ala. 2004) (quoting Clark v. Black,
630 So. 2d 1012, 1017 (Ala. 1993)); BIC Corp. v.
Bean, 669 So. 2d 840, 844 (Ala. 1995). It is also
a sound principle that juries are authorized to
return verdicts only as to claims on which they have
been instructed. Alpha Coal Co. v. National Cement
Co., 420 So. 2d 275 (Ala. Civ. App. 1982); Travelers
Indem. Co. v. Capitol City Haulers, Inc., 393 So. 2d
1012 (Ala. Civ. App. 1980). 'Argument of counsel to
a jury does not replace the court's charge to the
jury.... The jury cannot be left without a rudder
as to what [it is] called upon to decide and as to
the law applicable thereto.' 393 So. 2d at 1015
"It hardly bears repeating that '[s]ubmitting
[proposed jury] instructions is not sufficient to
instructions.' Salazar v. City of Chicago, 940 F.2d
233, 242 (7th Cir. 1991) (the plaintiff 'waived
[his] claim in the district court' by failing to
object to the court's refusal to give his requested
instructions; because the 'court never instructed
the jury on [that claim], ... the jury had no
plaintiffs] expressed their approval of the jury
charge, which did not include instructions on their
claim of intrusion on seclusion, they waived that
claim, and the general verdict returned by the jury
could not have been based on it."
In the present case, the trial court instructed the jury as to
the negligence claim, but it made no mention in its charge of
charge, the trial court expressly asked if there were any
exceptions to the charge as given, and both the plaintiffs and
because the charge did not include instructions on the lossof-consortium claim, that claim was waived "and the general
verdict returned by the jury could not have been based on it."
Regions Bank, 897 So. 2d at 247.
Thus, there was no finding
in favor of Ronald on the loss-of-consortium claim, and it was
not inconsistent for the jury to award no damages on that
inadequate damages based on the evidence presented.
argue that Linda's expenses for the two surgeries performed by
Dr. Chiu alone totaled more than $128,000 and that she was
also entitled to damages for pain and suffering and mental
Kelly, however, argues that the jury's award fairly
compensated Linda for all of her damages, including all proven
medical expenses that were related to the accident, as well as
an additional sum for pain and suffering and other injuries
that were claimed.
determined, "'the jury's assessment of damages must include,
at the least, an amount sufficient to compensate the plaintiff
for his or her uncontradicted special damages, as well as a
reasonable amount of compensation for pain and suffering.'"
Ex parte Courtney, 937 So. 2d 1060, 1062 (Ala. 2006) (quoting
Smith v. Darring, 659 So. 2d 678, 679-80 (Ala. Civ. App.
1995)) (emphasis omitted).
The relevant question for us,
incurred $128,000 of medical expenses because of the accident
It was not.
At trial, Kelly did not dispute that some of Linda's
medical expenses were incurred in treating injuries sustained
in the automobile accident; however, Kelly also sought to show
that some of Linda's medical expenses might have been incurred
for the treatment of injuries not sustained in the accident.
Specifically, Kelly sought to create a distinction between the
injury to Linda's lower back and the injury to her middle
In an effort to show that Linda's lower-back injury was
not incurred in the automobile accident, Kelly emphasized that
Linda herself testified that she did not begin experiencing
symptoms that would indicate an injury to the lower back until
almost a year after the accident, and that Dr. Schmitz, who
examined Linda's back two years after the accident, concluded
that, although she had injuries to her thoracic disks that
were probably the result of the accident, she did not at that
time have any lesions on her lumbar disks that necessitated
The problem with the disks in the lumbar region,
Kelly argues, was not discovered for another year –– three
years after the accident –– when Linda sought treatment from
$128,000 in claimed surgical expenses (presumably covering the
procedure on the three thoracic disks but not the procedure on
the three lumbar disks), plus an additional sum to compensate
Linda for pain and suffering and other injury.
The Kults argued that all Linda's back problems were the
testimony by Dr. Chiu, who had performed successful surgery on
thoroughness of Dr. Schmitz's examination of Linda as well as
his own recollection of his treatment of her.
In Akzo Chemicals, Inc. v. Lining Technologies, Inc., 611
So. 2d 288, 289 (Ala. 1992), this Court stated:
"It is well established that a trial court, as
well as an appellate court, must presume that a jury
verdict is correct 'where there is some evidence, or
a reasonable inference therefrom, to support the
verdict, and that this presumption is strengthened
when the trial court denies a motion for a new
trial.' Thompson v. Cooper, 551 So. 2d 1030, 1031
Thus, the amount of damages to be
awarded based on conflicting evidence is within the
jury's discretion. Because, in this instance, there
is conflicting evidence from which more than one
inference could be drawn, the question of the
appropriate measure of damages ... should be [a]
question for the jury."
In the present case, there was evidence from which the jury
could have inferred either that all Linda's back problems were
the result of the accident or that only part of her back
problems were the result of the accident.
It is apparent from
the jury's award of $100,000 that the jury drew the latter
inference, this Court cannot conclude that the damages awarded
Linda were inadequate.
inappropriate references to their collateral-source insurance
during voir dire, when questioning a witness, and in both
opening and closing statements.
They argue that the parties
agreed during an on-the-record conference that neither the
Kults nor Kelly would bring up the topic of insurance and that
Kelly's repeated attempts to do so entitle them to a new
See Pearson v. Birmingham Transit Co., 264 Ala. 350,
353, 87 So. 2d 857, 859 (1956) ("With reference to an argument
made by counsel emphasizing the existence of insurance carried
by his opponent covering the transaction, this Court has taken
the position that its influence is ineradicable, Standridge v.
therefore it is not incumbent upon his adversary to move the
court for a mistrial, but he has the privilege of waiting
until there is an adverse verdict and then move for a new
However, none of the statements allegedly made by defense
counsel during voir dire and opening and closing statements
are in the record for this Court to review.
Health Care Facility, Inc. v. Ballard, 565 So. 2d 221, 225
(Ala. 1990), this Court considered a similar argument and
"Next, the defendants argue that the trial court
erred in denying a motion for a mistrial because of
statements made by counsel for the plaintiff during
his opening statement.
The trial court has
wide discretion in deciding whether an incident
occurring during trial has affected a party's right
to a fair trial, and its decision will not be
reversed unless 'it clearly appears that its
discretion has been abused.' General Finance Corp.
v. Smith, 505 So. 2d 1045, 1049 (Ala. 1987). Here,
the record does not contain a transcript of the
It is not clear what the
plaintiff's counsel said or even if he made the
We cannot say that the trial
judge abused his discretion in denying the motion
for a mistrial."
In the present case, it is likewise unclear exactly what was
said about insurance during voir dire and opening and closing
statements because the record does not include a transcript of
Thus, we cannot conclude that the trial
court exceeded its discretion by failing to grant a new trial
on the basis of the alleged statements.
The only statement by Kelly's counsel that does refer to
insurance and that is in the record occurred during Kelly's
investigated the automobile accident.
The Kults allege that
insurance, thereby misleading the jurors into thinking that
(Kults' brief at pp. 36-37.)
However, the Kults have
questioning referred to was as follows:
I understand, Mr. Gruber, that you may not have
a specific recollection of this accident that
occurred five years ago, but looking at your
report –– and I'm reading over your shoulder ––
for each of the, these drivers, you wrote down
the name, correct?
Date of birth?
Race, sex, driver's license date?
Driver's license number?
Place of employment?
Style or make and model of vehicle?
Vehicle identification number?
Whether or not –– well, whether or not they may
have had insurance?
Do you have anything –– you've got estimated
It would seem to me that you would get that
wouldn't it, sir?
This testimony reveals that –– contrary to
the Kults' assertion –– there was never any mention to the
jury, during Gruber's direct or cross-examination, of whether
any of the drivers involved in the accident had insurance.
Defense counsel merely asked Gruber whether he had noted in
accident had insurance.
Counsel did not ask, and the witness
did not volunteer, which drivers in fact did or did not have
The Kults' argument that this testimony somehow
the jury into thinking that they had already been
compensated through insurance is itself misleading and is
The Kults fifth and final argument is that Alabama's optout process, see generally Lowe v. Nationwide Insurance Co.,
521 So. 2d 1309, 1310 (Ala. 1988), is unfair, especially in a
case like the present one because the two policies providing
uninsured/underinsured-motorist coverage were both issued in
under Minnesota law, which, the Kults allege, does
not provide for an opt-out procedure.
The entirety of the
Kults' argument in this regard is as follows:
"The opt out process under Alabama law, which is
provided to insurance companies in uninsured and
underinsured motorists cases, is unfair and in this
particular case was especially unfair in that both
contracts providing uninsured coverage were issued
in the State of Minnesota under Minnesota law which
does not provide an opt out procedure. This case is
a perfect example of how the opt out process can be
used to punish the victim under the guise of
protecting the rights of the insurance company and
instead rewarding the tortfeasor.
the record will reflect, Auto Owners
Company, which insured the vehicle in
and Mrs. Kult were passengers and which
plaintiffs, had been allowed to opt out and their
attorney then moved over and represented the
tortfeasor 'to protect the insurance company's
interests.' (C. 307)."
appellant fails to cite any authority for an argument, this
Court may affirm the judgment as to those issues, for it is
neither this Court's duty nor its function to perform all the
legal research for an appellant.
Rule 28(a)[(10)], Ala. R.
Sea Calm Shipping Co., S.A. v. Cooks, 565 So. 2d
212, 216 (Ala. 1990).
For this reason, we decline to address
this argument further.
The Kults have argued that the judgement entered on the
jury's verdict awarding damages is plainly and palpably wrong
and that they are accordingly entitled to a new trial on that
There is evidence to support the jury's
calculation of damages, and the Kults have not identified any
For these reasons, the judgment of the
trial court is affirmed.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur.