CORNETT (ARLENA) VS. BRIGHT (LURA), ET AL.
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001186-MR
ARLENA CORNETT
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT III, JUDGE
ACTION NO. 07-CI-00099
LURA BRIGHT; JAMES V. CORNETT;
AND KENTUCKY FARM BUREAU
INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND STUMBO, JUDGES; WHITE,1 SENIOR JUDGE.
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
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Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
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.
On September 10, 2005, Cornett was a passenger in a vehicle driven
by her father, James V. Cornett, which was involved in a collision with a vehicle
being driven by Lura Bright. As a result of the collision, Cornett received a
contusion and skin laceration to her lower right leg. She presented to the
emergency room for medical treatment shortly after the collision. Her wound
required treatment with medicated ointment and antibiotics. Cornett presented to
other medical professionals for follow-up testing in the months after the collision
but no additional active treatment was deemed necessary. She saw no physicians
from October 2006 to February 2008.
On March 23, 2007, Cornett filed suit against Bright, James Cornett,
and Kentucky Farm Bureau Mutual Insurance Company2 alleging simple
negligence. The case was heard by a jury on August 4-6, 2008. The jury rendered
a verdict awarding Cornett $3,500.00 in past medical expenses, $440.00 in lost
wages, and $0.00 for future medical expenses, past and future pain and suffering,
and permanent impairment of her earning capacity. Upon a reading of the verdict,
Cornett objected to the verdict as inconsistent. The trial court heard arguments on
the issue before overruling the objection. Bright then moved the court to dismiss
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Kentucky Farm Bureau was Mr. Cornett’s underinsured insurance coverage carrier. At the
trial of this matter, Kentucky Farm Bureau was named as a party to the jury, but did not
participate in the trial and had no counsel involved.
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the action based on the ground that the amount of the jury’s verdict was less than
the Motor Vehicle Reparations Act (MVRA) tort liability threshold of $10,000.00.
See KRS 304.39-060, KRS 304.39-110, Thompson v. Piasta, 662 S.W.2d 223 (Ky.
App. 1983), Dudas v. Kaczmarek, 652 S.W.2d 868 (Ky. App. 1983), and Stone v.
Montgomery, 618 S.W.2d 595 (Ky. App. 1981). The trial court granted Bright’s
motion and dismissed the action with prejudice. Cornett’s subsequent motion for a
new trial was denied by separate written orders entered on May 26, 2009. That
same day, the trial court entered an order denying Cornett’s motion for costs and
granting Bright’s motion for costs in the amount of $1,732.61. This appeal
followed.
Cornett raises four allegations of error in seeking relief. First, she
argues the trial court erred in denying her motion for a new trial as the jury’s award
of zero dollars for pain and suffering was inadequate as a matter of law based on
the evidence presented to the jury. Next, she contends the trial court erroneously
offset the jury’s award of past medical expenses and lost wages by the basic
reparation benefits payable by statute when no evidence regarding such payments
was presented at trial. Third, Cornett argues the trial court should not have
awarded costs to Bright as her motion for costs was made more than ten days after
the entry of the final judgment, thus depriving the trial court of jurisdiction over
the matter. Finally, she argues the trial court erred in denying her own motion for
costs.
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First, Cornett argues the jury’s award of zero dollars for pain and
suffering was inadequate as there was “uncontroverted, unimpeached and
undisputed evidence” presented that Cornett suffered pain from her wound. Thus,
she contends the trial court should have granted her motion for a new trial. We
disagree.
The standard of appellate review from the denial of a motion for a
new trial is limited to whether the trial court’s decision was clearly erroneous.
Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001) (citing Cooper v. Fultz, 812
S.W.2d 497 (Ky. 1991)). An award of zero damages for pain and suffering is not
per se inadequate as a matter of law. Id. at 602. “Whether the award represents
‘excessive or inadequate damages appearing to have been given under the
influence of passion or prejudice or in disregard of the evidence or the instructions
of the court,’ CR [Kentucky Rules of Civil Procedure] 59.01(d), is a question
dependent on the nature of the underlying evidence.” Id. (quoting Cooper, 812
S.W.2d at 501) (emphasis in original). Thus, “if the jury’s verdict of zero damages
for pain and suffering is supported by evidence, the trial court was not clearly
erroneous in denying [Cornett’s] motion for a new trial.” Id. at 601.
Here, Dr. William Robertson and Dr. S.C. Kotay testified by
deposition that there was no reason for Cornett to suffer from pain. They further
testified that her injury would not affect her ability to engage in any activities. In
addition, her initial complaint upon presenting to the hospital was numbness in the
area of her injury. Although Dr. Sujata Gutti testified by deposition that Cornett
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suffered pain and nerve injury in her right leg, the jury “is not bound to believe a
plaintiff or her doctors.” Bledsaw v. Dennis, 197 S.W.3d 115, 118 (Ky. App.
2006) (quoting Spalding v. Shinkle, 774 S.W.2d 465, 467 (Ky. App. 1989)).
Contrary to Cornett’s assertion, the fact that the jury awarded damages for medical
expenses and lost wages is legally insufficient to require an award of damages for
pain and suffering. “The law in Kentucky, however, does not require a jury to
award damages for pain and suffering in every case in which it awards medical
expenses.” Miller, 42 S.W.3d at 601. Based on our review of the record, we are
unable to conclude the jury’s verdict was unsupported by the evidence, or that the
trial court clearly erred in denying Cornett’s motion for a new trial.
Second, Cornett argues the trial court erred in offsetting the jury’s
award for medical expenses and lost wages by the basic reparation benefits payable
by statute when no evidence regarding such payments was presented at trial. She
claims that since her health care insurance provider paid some of her medical
expenses and no evidence was presented regarding amounts paid under the basic
reparation benefits coverage of her father’s automobile insurance policy, the offset
provisions of the MVRA do not apply. We disagree.
The tort limitations of the MVRA only deny payment for damages
covered by basic reparation benefits. KRS 304.39-060(2)(a). There is no question
that medical expenses and lost wages are loss damages payable as basic reparation
benefits. KRS 304.39-020(5). The law is clear that one is not entitled to recover
damages “to the extent the basic reparation benefits provided in this subtitle are
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payable therefor.” Wemyss v. Coleman, 729 S.W.2d 174, 181 (Ky. 1987) (quoting
KRS 304.39-060(2)(a) (emphasis added)). “Read in its entirety, the MVRA must
be construed as abolishing tort liability to the extent the injured party has received
or could receive [basic reparation benefits] or [added reparation benefits] under his
or her existing coverage.” Saxe v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d
188, 191 (Ky. App. 1997) (emphasis added). However, we find no statutory
foundation supportive of Cornett’s contention that actual payment of these
expenses by the basic reparation benefits carrier is required for the offset
provisions of the MVRA to apply. Likewise, Cornett does not cite us to any
precedent sustaining her position and we are convinced none exists.
Nevertheless, the record reflects that evidence was presented to the
trial court regarding payments from the personal injury protection (PIP) carrier on
behalf of Cornett for some of the medical expenses relating to the injury she
sustained in this collision. It would have been wholly improper to introduce such
evidence to the jury as the law of this Commonwealth clearly prohibits the
introduction of evidence of collateral source payments. See O’Bryan v.
Hedgespeth, 892 S.W.2d 571 (Ky. 1995). Cornett’s argument to the contrary is
without merit. Thus, we hold the trial court correctly applied the law when it
applied the setoff provisions of the MVRA to the jury’s award.
Third, Cornett contends Bright’s motion for costs was untimely and
the trial court erred in granting it. She argues such a motion is in essence a motion
to amend the judgment and that CR 59.05 requires such filings within ten days
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after the entry of the final judgment. Her argument is misplaced as CR 59.05
simply does not control in this instance. While it is true that a trial court loses
jurisdiction to amend its final judgment ten days after its entry, CR 52.02, CR
59.05, the trial court does not lose all jurisdiction at that time. For example, CR
60.01 allows trial courts to correct clerical mistakes, and CR 60.02 permits
mistakes, newly discovered evidence, etc., to be considered up to one year after
entry of the final judgment.
In relation to the case at bar, CR 54.04 controls bills of costs, and that
rule contains no limitation on when such motions must be filed. Costs must
necessarily be awarded after a judgment is entered. Exceptions must be filed
within five days after the bill of costs is tendered and the trial court must announce
its ruling in a “supplemental judgment.” A plain reading of this self-explanatory
rule indicates this “supplemental judgment” has nothing to do with the lost
jurisdiction to alter, amend or vacate the final judgment. Thus, the trial court
correctly considered Bright’s motion for costs which was filed within a reasonable
time following the judgment.
Finally, Cornett argues the trial court erred in denying her motion for
costs. It appears Cornett is arguing that she was the “prevailing party” as the jury
awarded her damages for medical expenses and lost wages, and thus she was
entitled to recovery of her costs pursuant to CR 54.04. She offers no legal or
factual support for her contention. We hold Cornett’s argument is without merit.
Although she continues to assert that the trial court improperly utilized the offset
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provisions of the MVRA to reduce her award and ultimately to dismiss her cause
of action—without which alleged error she would have prevailed—our earlier
discussion brings the fallacies of her argument to light. Cornett fails to grasp that
the trial court dismissed her complaint with prejudice. Thus, by necessity, she
could not be the prevailing party for any purpose, most especially for the purpose
of the application of CR 54.04. There was no error.
Therefore, for the foregoing reasons, the judgment of the Letcher
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Ronald G. Polly
Whitesburg, Kentucky
BRIEF FOR APPELLEE,
JAMES V. CORNETT:
Marcia L. Wireman
Jackson, Kentucky
BRIEF FOR APPELLEE,
LURA BRIGHT:
Sam R. Collins
Hazard, Kentucky
BRIEF FOR APPELLEE,
KENTUCKY FARM BUREAU
INSURANCE COMPANY:
No brief filed.
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