RHONDA FRATZKE V. BERNADETTE MURPHY
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RENDERED: DECEMBER 16,1999
TO BE PUBLISHED
98-SC-0684-DG
RHONDA FRATZKE
V.
ON REVIEW FROM COURT OF APPEALS
96-CA-753-MR
(MARSHALL CIRCUIT COURT NO. 94-Cl-309)
BERNADETTE MURPHY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, Rhonda Fratzke, appeals from a decision of the Court of Appeals
reversing the Marshall Circuit Court in part and remanding. We affirm.
While walking a picket line, Fratzke was hit by a car driven by appellee,
Bernadette Murphy, on December 3, 1992. Subsequently, Fratzke filed a complaint
against Murphy. In the complaint, she alleged inter alia.
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As a result of the negligence of the Defendants, Bernadette
Murphy and Guard Screen, Company, Inc., the Plaintiff has
been forced to incur hospital[,] doctor, medical and drug
expenses in an amount in excess of One Thousand Dollars
($l,OOO.OO) and will b e farced to incur same in the future;
she has undergone physical and mental pain and suffering
and will be forced to undergo same in the future; she has
suffered a permanent injury; and her ability to earn money
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has been permanently impaired; and she has been
damaged thereby.
On August, 7, 1995, the trial court entered an order directing that trial briefs be
filed at least twenty days prior to trial. The briefs were to contain an itemized list of the
claimed special damages sought by the parties.
On October 4, 1995, Murphy served a set of interrogatories on Fratzke that
included a request to identify “each item of damage, including pain and suffering, which
you claim arises out of this action . . . .” In response to the interrogatories, Fratzke
provided only an itemized list of medical expenses incurred to date. Further, in her trial
brief, Fratzke included only a list of medical expenses.
This trial commenced on December 27, 1995. During opening statements,
Murphy’s counsel objected to references made by Fratzke’s attorney concerning
damages other than those listed in Fratzke’s interrogatory answers or in her trial brief.
The trial court reserved its ruling on the issue and allowed Fratzke’s attorney to
continue his opening argument.
After closing arguments, Murphy’s counsel objected to instructing the jury on any
damages other than medicals.
After noting Fratzke’s failure to fully comply with the
courts order concerning the trial brief or to fully answer Murphy’s interrogatories, the
trial court nonetheless overruled the objection stating that such a result was unduly
harsh. The trial court then submitted the case to the jury with instructions to award
Fratzke damages that fairly and reasonably compensated her for: pain and suffering,
medical expenses, future medical expenses, lost wages, and permanent impairment of
power to labor and earn money. The jury returned with a verdict that awarded Fratzke
$25,000 in pain and suffering, $33,513.62 for medical expenses, $12,000 for future
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medical expenses, $27,500 for lost wages, and $25,000 for permanent impairment of
her power to labor and earn money. The trial cc~rt entered a judgment in accordance
with this verdict on February 5, 1996.
The trial court denied Murphy’s motion to “Alter, Amend, or Vacate Judgment;
Alternative Motion for New Trial” on March 1, 1996. Subsequently, Murphy appealed to
the Court of Appeals arguing in pertinent part that CR 8.01(2) precluded Fratzke from
recovering damages for pain and suffering, future medicals, lost wages, and impairment
of earning power because amounts for those unliquidated damages were not included
in Fratzke’s answers to interrogatories.
The Court of Appeals originally affirmed the trial court in full. Murphy sought
discretionary review in this Court and we remanded the case to the Court of Appeals to
reconsider its decision in light of Burns v. Level, KY., 957 S.W.2d 218 (1997). Upon
reconsideration, the Court of Appeals reversed the trial courts award of damages in
question and remanded with instructions to vacate that portion of the judgment which
awarded Fratzke damages for pain and suffering, future medicals, lost wages, and
impairment of earning power.
Fratzke then sought discretionary review of the second
Court of Appeals’ decision, which we granted. We affirm for the reasons set forth
below.
CR 8.01(2) states:
In any action for unliquidated damages the prayer for
damages in any pleading shall not recite any sum as alleged
damages other than an allegation that damages are in
excess of any minimum dollar amount necessary to
establish the jurisdiction of the court; provided, however, that
all parties shall have the right to advise the trier of fact as to
what amounts are fair and reasonable as shown by the
evidence. When a claim is made against a party for
unliquidated damages, that party may obtain information as
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to the amount claimed by interrogatories; if this is done, the
amount claimed shall not exceed the last amount stated in
answer to interrogatories.
Murphy propounded an interrogatory which requested Fratzke to identify “each
item of damage, including pain and suffering, which you claim arises out of this action
. . . . ” This clearly encompassed Fratzke’s claims of damages for pain and suffering,
future medicals, lost wages, and impairment of earning power as these claims were
stated in the complaint. Further, these claims are clearly unliquidated damages within
the meaning of CR 8.01(2). Fratzke did not object to this interrogatory, nor was her
answer non-responsive since it provided a list of medical expenses incurred to date. By
omitting an amount for any damage claim other than her medical expenses incurred to
date, Fratzke effectively stated that her claim for her unliquidated damages was
nothing. Thus, under the rule, Fratzke’s claim for unliquidated damages at trial could
not exceed $0.00.
Fratzke first tries to find safe harbor in CR 15.02, however, there is no place
within the rule for her to weigh anchor.
CR 15.02 states in pertinent part:
If evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely
when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the
court that admission of such evidence would prejudice him
in maintaining his action or defense upon the merits. The
court may grant a continuance to enable the objecting party
to meet such evidence.
CR 15.02 only applies to pleadinas. CR 7.01 sets forth an inclusive list of
documents that constitute “pleadings” within the context of our civil rules. Further, the
rule specifically provides: “No other pleadina shall be allowed. . . .‘I (emphasis added).
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Interrogatories are not included within the CR 7.01 inclusive list of pleadings; thus,
interrogatories are not “pleadings” within the meaning of the civil rules. Consequently,
CR 15.02 has no application to the case at bar. This result is neither harsh nor hypertechnical. Fratzke had a simpler method of amending her claim for unliquidated
damages that did not require Fratzke to make a motion to the trial court.
The language of CR 8.01(2) clearly implies that Fratzke had the right to
supplement her answers to Murphy’s interrogatories concerning her claims for
unliquidated damages: “. . . the amount claimed shall not exceed the last amount stated
in answer to interrogatories.” (Emphasis added). If she did not have the right to
supplement her answers, then the word “last” would have no meaning. While Fratzke
does argue that she did in fact supplement her answers, the argument must fail.
The trial in this case began on December 27, 1995. During opening argument
on the same day, Murphy’s counsel objected to any mention of Fratzke’s claims for
unliquidated damages on grounds that CR 8.01(2) prohibited her from recovering on
those claims. The trial court reserved ruling on the objection. On December 28, 1995,
on the afternoon of the last day of trial, Fratzke filed with the court clerk supplemental
answers to her interrogatories that provided monetary amounts for her unliquidated
damage claims. We note that according to the supplemental answers, service was via
the U.S. mail. Nothing in the record indicates that these supplemental answers were
served on or brought to the attention of the defense at any time during trial.
According to CR 26.05, when a party has a duty to supplement a response to a
discovery request, the party must “seasonably” supplement the response. While CR
8.01(2) does not expressly place a duty on a party to supplement answers to
interrogatories, it effectively creates such a duty by providing the consequence of failing
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to supplement. Thus, CR 8.01(2)
and CR 26.05 may be fairly and reasonably
construed together so as to impose a “seasonab!e” time limit on a party’s ability to
supplement an answer to interrogatories for claims for unliquidated damages. While
CR 26.05 does not include a definition of “seasonable,” we believe that, as a matter of
law, any attempt to supplement answers to interrogatories after trial has commenced is
not seasonable within the meaning of the rule. We note that nothing in the rules
precludes a trial court from entertaining a motion to supplement answers to
interrogatories after trial has commenced. However, Fratzke never made such a
motion. Nor is there anything in the record to indicate that she in any way brought her
supplemental answers to the attention of the trial court. Therefore, we hold that
Fratzke’s attempt to supplement her answers to interrogatories to include amounts
claimed for unliquidated damages, which was made on the last day of trial and without
leave of court, was ineffective.
t
Fratzke also argues that any error in admitting evidence of her claim of damages
for pain and suffering, future medicals,
lost wages, and impairment of earning power
and instructing the jury on the same was harmless under CR 61 .Ol. The basis of this
argument is the assertion that Murphy was fully aware of Fratzke’s claims for the
damages in question. This argument might have merit if the purpose of CR 8.01(2) was
to apprise a party of the nature of an opposing party’s claims for unliquidated damages.
However, the purpose of the rule is to allow a party to discover the amount an opposing
party is seeking for unliquidated damage claims. Since Fratzke provided no amount for
her unliquidated damage claims through discovery, we cannot say that the error was
harmless.
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Finally, citing Burns v. Level, supra, Fratzke argues that the trial court had the
discretion to overrule Murphy’s objection to instrlrcting the jury on unliquidated
damages. The inclusion of language in Burns that the trial court did not abuse its
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discretion in granting the defendant a directed verdict on the plaintiffs unliquidated
damages claim for permanent impairment to earn money was unfortunate. The import
of our decision in Burns is that CR 8.01(2) provides its own remedy and that
implementation of that remedy is mandatory upon the trial court and is not
discretionary. This is evidenced by our reliance in Burns on National Fire Insurance
Company v. Spain, Ky. App., 774 S.W.2d 449, 451 (1989) which held that CR 8.01(2)
prevents a trial court from awarding damages for unliquidated claims that are in excess
of the last amount claimed by the plaintiff in answers to interrogatories.
Contrary to the argument made by the dissent, our opinion today does not “bury
a landmine in civil litigation.”
Rather, we merely hold that CR 8.01(2) means what it
says. The language of the rule is mandatory and gives a trial court no discretion as to
its application. The dissent argues that our reading of the rule “will inevitably lead to a
miscarriage of justice, as in the instant case.” However, as noted, Fratzke was free to
seasonably supplement her answers. Further, after a seasonable time had expired,
she could have moved the trial court to allow her to supplement her answers. She did
neither. Therefore, applying the plain and ordinary meaning of the rule does not and
will not create an “inflexible rule that will surely result in injustice.” There are other
safeguards in place to protect the interests of fairness and justice without resorting to
the dissent’s tortured interpretation of the rule.
While the result in this case may seem harsh, it is required by the plain language
of CR 8.01 and the holding of Burns v. Level, supra.
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Therefore, the decision of the Court of Appeals is hereby affirmed.
Cooper, J., Special Justice Susan Wesley McClure, Stumbo, J., and
Wintersheimer, J., concur. Lambert, C.J., dissents by separate opinion, with Keller, J.,
joining that dissent. Keller, J., dissents by separate opinion, with Lambert, C.J., joining
that dissent. Graves, J., not sitting.
COUNSEL FOR APPELLANT:
Charles A. Saladino
David Vance Oakes
SALADINO LAW FIRM
P. 0. Box 1246
Paducah, KY 42002-1246
COUNSEL FOR APPELLEE:
Robert L. Prince
PRINCE & BRIEN, P.S.C.
P. 0. Box 466
Benton, KY 420250466
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RENDERED: DECEMBER 16, 1999
TO BE PUBLISHED
98-SC-0684-DG
RHONDA FRATZKE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
96-CA-753-MR
MARSHALL CIRCUIT COURT NO. 94-Cl-309
BERNADETTE MURPHY
APPELLEE
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
I am now of the opinion that our decision in Burns v. Level, Ky., 957
S.W.2d 218 (1998), to the extent that it mandated the result here, was erroneous. I
qualify my view because the precise holding in Burns was that the trial court did not
abuse its discretion in granting a directed verdict upon the unitemized damages.
Contrary to the assertion in the majority opinion, Burns did not hold that such a result
should occur in every case.
It is widely acknowledged that our purpose in prohibiting recitation of sums
alleged as damages in the prayer for relief is to prevent public notoriety of shocking,
outrageous claims which may bear little relationship to the actual damages sustained.
To accommodate a defendant, CR 8.01 authorizes the use of interrogatories to obtain
disclosure of the amount actually sought. For failure to answer interrogatories, a party
may move, under CR 37.04, for an order compelling answers. No motion to compel
was made in this case.
The effect of the majority opinion will be to bury a landmine in civil
litigation whereby a party may propound the interrogatories and thereafter sit silently by
hoping the opposing party will, through inadvertence or neglect, fail to timely answer. A
hard and fast rule prohibiting recovery of damages for failure to answer damages
interrogatories will inevitably lead to a miscarriage of justice, as in the instant case. A
far better approach would be to leave the remedy for failure to answer interrogatories to
the sound discretion of the trial judge. The perspective of the trial judge with respect to
analyzing prejudice, unfair surprise, and generally allocating responsibility is far superior
to that of any appellate court. Unfortunately, we have abolished trial court discretion in
this regard and announced an inflexible rule that will surely result in injustice.
Keller, J., joins this dissenting opinion.
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RENDERED: DECEMBER 16, 1999
TO BE PUBLISHED
98-SC-0684-DG
APPELLANT
RHONDA FRATZKE
v
ON REVIEW FROM COURT OF APPEALS
96-CA-753-MR
(MARSHALL CIRCUIT COURT NO. 94-(I-309)
BERNADETTE MURPHY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I dissent because I believe that Burns v. Level, 957 S.W.2d 218 (1998), clearly
and properly holds that the decision whether to grant a directed verdict with respect to
plaintiffs’ unitemized damages claims on the basis of CR 8.01(2) is a matter left to the
discretion of the trial judge. Because the trial judge did not abuse this discretion, I
would reverse the decision of the Court of Appeals and reinstate the original verdict.
Initially, I would note that the majority inconsistently gives decisive weight to the
language of CR 8.01(2). With respect to alleged violations of this rule, the majority
adopts a strict construction of the rule’s language and concludes that “CR 8.01(2)
provides its own remedy” which is found within the rule’s language and is independent
of whether defense counsel is actually surprised. In contrast, in order to address
Fratzke’s contention that the supplemental interrogatory response filed with the trial
court during trial satisfied CR 8.01(2), the majority feels the need to “import” language
from CR 26.05 and clarify the rule’s language by analyzing policy rationale behind CR
8.01(2). Wrth respect to the sanction assoctated with CR 8.01(2), questrons of what
rnformatron
same
IS
the defense possessed and when they possessed it are irrelevant. The
not true, however, according to the majority, when it explains the “last amount
stated” language.
The last sentence of Section II of this Court’s opinion in Burns, sunra, where the
court addressed the trial court’s directed verdict on the plaintiffs’ claim for permanent
impairment to earn money, reads, in part: ” we cannot conclude that the trial court
ased its discretion in granting a directed verdict dismissing Appellant’s claim for those
damages.” Burns, suora at 221-22 (emphasis added). I agree with Chief Justice
Lambert that this Court held in Burns that the trial court involved in that case did not
abuse its discretion in granting a directed verdict based on Burns’ failure to answer
either the initial interrogatory or the supplemental interrogatory regarding itemization of
unliqutdated damages. The majority characterizes this language as “unfortunate.” I
disagree with this characterization and dissent from the majority opinion because I do
not believe this language appeared in Burns as the result of some kind of accident. I
feel that this Court discussed the trial court’s discretion regarding whether or not to
‘I would note that the majority cites to this rule despite the fact that nothing in the
record demonstrates that Fratzke was “under a duty seasonably to supplement [her]
response” as contemplated by the rule. CR 26.05. In fact, subsection (c) of CR 26.05
supports the argument made in Chief Justice Lambert’s dissent that Murphy should
have filed a motion to compel Fratzke to fully answer the interrogatory before utilizing
CR 8.01(2) offensively:
(c) A duty to supplement responses may be imposed by
order of the court agreement of the parties, or at any time
prior to trial through new requests for supplementation of
prior responses. CR 26.05.
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I
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grant a directed verdict within the Burns opinion because it is relevant and important to
the holding.
Finally, I see nothing in the record which leads me to believe that Murphy was
prejudiced by Fratzke’s failure to itemize her claims for unliquidated damages. The
pleadings filed in this case clearly gave notice to Murphy that pain and suffering, future
medical expenses, lost wages, and permanent impairment of power to earn labor and
money were issues within this case that Fratzke intended to litigate. Fratzke did provide
documentation showing the extent of her claim for past medical expenses, and she
bound herself to a maximum verdict of $50,000, and thereby gave Murphy notice of the
total amount sought in unliquidated damages, when she stipulated the amount in
controversy to prevent removal to federal court. See. Cole v. Great Atlantic and Tea
Co., 728 F.Supp.
1305, Note 2 (E.D.Ky. 1990). Contrary to the statement in the
majority opinion that “[t]he court entered a judgment in accordance with [the] verdict,” a
verdict was only entered for $50,000.00,
not for the total amount apportioned to Murphy
by the jury.
Although I write separately in dissent from Chief Justice Lambert, I
wholeheartedly agree with his statements regarding the superior position of the trial
judge to analyze and determine issues of this sort. Rules cannot think; judges can. It is
for this that we should accord great discretion to trial judges in matters of this nature. I
believe Burns acknowledges this by applying an abuse of discretion standard. Seeing
no abuse of discretion on these facts, I would reverse the Court of Appeals.
Lambert, C.J., joins this dissent.
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