SUSAN D. MILLER V. ROGER E. SWIFT, SANDRA L. JACOBS, GENERALI-U.S. BRANCH, AND WEST AMERICAN INSURANCE COMPANY
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RENDERED: JANUARY 252001
TO BE PUBLISHED
1999-SC-0991
-DG
SUSAN D. MILLER
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
98-CA-0048
JEFFERSON CIRCUIT COURT NO. 95Cl-0691
ROGER E. SWIFT,
SANDRA L. JACOBS,
GENERALI-U.S. BRANCH, AND
WEST AMERICAN INSURANCE COMPANY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I. ISSUE
In this automobile accident case, the jury awarded Susan Miller damages for
medical expenses and lost wages but awarded no damages for pain and suffering by
writing a zero (“0”) on that portion of the verdict form. Miller contends that the trial court
erred in denying her motion for a new trial which alleged that the jury’s zero pain and
suffering award was inadequate as a matter of law because it was inconsistent with the
jury’s award of damages for medical expenses and lost wages. Because the evidence
at trial supported a finding by the jury that Miller did not suffer additional pain as a result
of the accident, we find the jury’s pain and suffering award legally proper and hold that
the trial court acted within its discretion in denying Miller’s motion for a new trial.
II. FACTS
Miller, the operator of one of the automobiles involved in a two-automobile
accident, initiated this personal injury action against the operator of the other vehicle,
Roger Swift.’ Miller sought to recover damages for personal injuries she allegedly
suffered as a result of the accident. Both Miller and Swift asserted that the other was
responsible for the accident. The jury found both at fault and returned a verdict which
apportioned 60% of the fault to Swift and 40% to Miller.
In addition to seeking recovery for her medical expenses and lost wages, Miller
sought damages for pain and suffering. Miller claimed that the accident resulted in
enhanced pain in addition to the pain she suffered prior to the accident from rheumatoid
arthritis, carpal tunnel syndrome, gastritis and problems with her knee and shoulder.
Based on the pain associated with Miller’s pre-existing condition, however, Swift
claimed that Miller suffered no additional pain as a result of the accident. A
considerable amount of testimony during the three-day trial related to the question of
Miller’s damages for pain and suffering.
The jury returned a verdict2 awarding Miller damages as follows:
(a) For her pain and suffering which
she has endured in the past, and
is reasonably certain to endure
in the future, (not to exceed
$30,000.00, th e amount claimed);
‘Swift counterclaimed against Miller for his own personal injuries and for property
damage to his vehicle. At the close of Swift’s evidence, the trial court determined that
he “failed to produce any competent medical evidence or proof that he [had] sustained
any injuries as a result of the accident” and granted a directed verdict dismissing Swift’s
personal injury claim. Appellee Sandra Jacobs, a passenger in Swift’s automobile,
intervened in the litigation and sought damages for her injuries.
2The verdict was signed by nine (9) of the twelve (12) jurors.
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(b) For her past medical expenses,
(not to exceed $5,951 .I 1, the
amount claimed);
$ 3570.67
(c) For her lost wages, (not to exceed
$2,831.36, the amount claimed);
$ 1698.82
Miller filed a motion for a new trial3 on the ground that the jury’s pain and
suffering award was inadequate as a matter of law. The trial court denied Miller’s
motion for a new trial and entered judgment4 upon the jury’s verdict. The Court of
Appeals, in a split 7-6 en ban? opinion, affirmed the trial court’s judgment and denial of
Miller’s motion for new trial. Miller sought discretionary review in this Court, which we
granted, and we now affirm the Court of Appeals.
III. STANDARD OF REVIEW
Miller alleges that the trial court erred when it denied her motion for a new trial.
Our review, therefore, is limited to whether the trial court’s denial of her motion was
clearly erroneous:
Our recent decision in Cooper v. Fultz, Ky., 812 S.W.2d
497 (1991) laid to rest any confusion which previously
3& CR 59.01 (d):
A new trial may be granted to all or any of the parties and
on all or part of the issues for any of the following causes:
id)’ 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.
4Since Miller’s remaining damages, totaling $5269.48, fell below the Motor
Vehicle Reparations Act tort liability threshold of $10,000.00, the judgment dismissed
Miller’s complaint. a KRS 304.39-060; KRS 304.39-I 10; Stone v. Montaomery
Ky.App., 618 S.W.2d 595 (1981); Dudas v. Kaczmarek, Ky.App., 652 S.W.2d 86i
(1983).
‘Court of Appeals Judge McAnulty did not sit since he had been the trial judge in
the case.
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existed with respect to such appellate review. We began by
declining any review until the trial court had first considered
the substance of the claim and quoted with approval from
Davis v. Graviss, Ky., 672 S.W.2d 928 (1984) which
described a CR 59.01 ruling as “a discretionary function
assigned to the trial judge who has heard the witnesses
firsthand and observed and viewed their demeanor and who
has observed the jury throughout the trial.” Id. at 932. We
followed Prater v. Arnett, Ky.App., 648 S.W.2d 82 (1983) in
which the appellate court was held to be precluded from
stepping “into the shoes” of the trial court, and precluded
from disturbing its ruling unless it was found to be clearly
erroneous.
Our decision in Cooper amounts to a recognition that a
proper ruling on a motion for new trial depends to a great
extent upon factors which may not readily appear in an
appellate record. Only if the appellate court concludes that
the trial court’s order was clearly erroneous may it reverse.’
Accordingly, 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 Miller’s motion for a new
trial.
IV. ADEQUACY OF JURY’S PAIN AND SUFFERING AWARD
Miller argues that the trial court abused its discretion and erred as a matter of law
when it denied her motion for a new trial because the jury’s failure to award her any
amount of money for pain and suffering was contrary to the evidence and inconsistent
with its award of more than $5000 for medical expenses and lost wages. After a review
of the record, we find that the trial court acted within its discretion in determining that
the jury’s verdicts were legally and factually consistent.
Miller’s argument presupposes legal inconsistency when a jury awards damages
for medical expenses and lost wages, but awards no damages to compensate the
plaintiff for pain and suffering. The law in Kentucky, however, does not require a jury to
6Turfwav Park Racina Ass’n v. Griffin, Ky., 834 S.W.2d 667, 669 (1992).
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award damages for pain and suffering in every case in which it awards medical
expenses. In Coooer v. F~ltz,~ this Court, faced with a jury verdict similar to the one
now before us, remanded the case for the trial court to determine the adequacy of a
jury’s award, and plainly avoided holding such a verdict inconsistent or inadequate as a
matter of law:
The question before us is whether, by thus specifying a
deliberate intention to make no award for one (or more)
elements of damages, the jury has returned a verdict with a
patent irregularity which is waived by failing to timely object,
or whether this represents a completed verdict which is
subject to challenge as inadequate on motion for a new trial.
It is our opinion that this a complete verdict: that it may be
inadequate but it is not inconsistent. . . .
It is indeed a “booby trap” to send back a jury which has
flatly decided that the claimant’s pain and suffering is worth
nothing to replace the “-0-l’ with a dollar amount . . .Erasing
the zero and replacing it with a few dollars will not correct
the inadequacy. The first verdict as completed should be
received and should be subiect to a motion for a new trial
which should be aranted unless there is countervailinq
evidence such that the jury’s verdict, taken as a whole,
withstands the test of inadequacv.’
In Cooper, this Court explained that it remanded the case back to the trial court
because the “inadequacy” inquiry requires evaluation of the evidence submitted at trial:
Whether the award represents “excessive or inadequate
damaaes 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 59.01(d), is a auestion
dependent on the nature of the underlyina evidence. In
Hazelwood v. Beauchamp, [Ky.App., 766 S.W.2d 439
(1989)], where the plaintiffs “hand was crushed and
mangled” in a hay baler, the proof of pain and suffering, and
of lost earnings, was so compelling that the award of “0” was
clearly so inadequate that failure to grant a new trial on
damages was clearly erroneous. On the other hand, in
7Ky., 812 S.W.2d 497, 502 (1991).
81d. at 500 (emphasis added).
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Spaldina v. Shinkle, [Ky.App. 774 S.W.Zd 465 (1989)],
where there was an award of “$1,000” for “reasonably
certain future medical expenses, but ‘0’ for future pain and
suffering,” the Court of Appeals upheld the decision of the
trial court not to grant a new trial for inadequate damages
stating:
“There was countervailing evidence of a
substantial nature; therefore the jury was not
bound to believe Spalding’s version, and they
did not, as evidenced by no damages being
awarded for the claimed item. . .There was no
error in the trial court overruling Spalding’s
motion for a new trial in this regard.”
Thus, the trial court must now consider the substance of the
appellant/movant’s motion for a new trial, and rule on
whether “-0” is adeauate for oain and sufferina considering
the evidence heard bv the jury.”
In Cooper, this Court rejected the contention that a jury’s pain and suffering
award was automatically inadequate as a matter of law when a jury intentionally
indicated no pain and suffering award but awarded damages for medical expenses or
lost wages. Instead, the Cooper Court remanded the matter for the trial court to
determine whether, based upon the evidence submitted at trial, the jury’s pain and
suffering award was adequate.
It appears that some confusion has resulted from Prater v. Coleman,‘o where a
three-judge panel of the Court of Appeals misconstrued the Cooper holding and
remanded a similar case for a new trial. In the case now before us, however, we
believe the majority of the en bane panel correctly interpreted Cooper. We now
overrule Prater v. Coleman to the extent it holds that a “0” award of pain and suffering
91d. at 502 (emphasis added).
“Ky.App., 955 S.W.2d 193 (1997).
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damages, regardless of the evidence, is inadequate as a matter of law when
accompanied by awards for medical expenses and lost wages.
Because the parties litigated the question of whether Miller endured additional
pain and suffering as a result of this collision and Swift solicited testimony which would
support the jury’s conclusion, we hold that the trial court did not abuse its discretion in
denying Miller’s new trial motion. One of the issues that this jury was empaneled to
decide was whether the accident aggravated or aroused Miller’s pre-existing pain, and
the parties actively contested this factual issue. The trial court properly instructed the
jury regarding permissible damages for pain and suffering when pre-existing conditions
may have been aggravated,” and the jury concluded, on the basis of the evidence
submitted to it, that Miller was not entitled to compensation for this item of damages.
Even though they awarded Miller over $5000 in medical expenses and lost wages, the
jury made a conscious decision to award nothing for pain and suffering.
The civil justice system uses juries to decide exactly these types of factual
disputes, and the testimony and evidence at trial in this case contained substantial
support for the jury’s verdict. Both parties presented the jury with probative evidence.on
the issue of whether this collision caused Miller any additional pain and suffering, and
the trial court properly denied Miller’s motion for a new trial.
For the foregoing reasons, we affirm the judgment of the Court of Appeals.
Cooper, Johnstone and Wintersheimer, JJ., concur. Graves, J., dissents by
separate opinion, with Lambert, C.J. and Stumbo, J., joining that dissent.
“a Drury v. Spalding, KY., 812 S.W.2d 713 (1991).
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COUNSEL FOR APPELLANT:
J. Andrew White
734 South First Street
Louisville, Kentucky 40202
Michael R. Slaughter
Marion Wesley White Building
734 South First Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEES, ROGER E. SWIFT AND GENERALI4J.S. BRANCH:
Michael J. Darnell
310 West Liberty Street
Suite 604
Louisville, Kentucky 40202
Kenneth W. Lampe
310 West Liberty Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE, SANDRA L. JACOBS:
Lloyd A. Thomas
1300 South Third Street
Louisville, Kentucky 40208
COUNSEL FOR APPELLEE, WEST AMERICAN INSURANCE COMPANY:
Chester A. Vittitow, Jr.
Suite 400 South
First Trust Centre
200 South Fifth Street
Louisville, Kentucky 40202
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RENDERED: JANUARY 25,200l
TO BE PUBLISHED
1999-SC-0991
-DG
APPELLANT
SUSAN D. MILLER
V.
ON REVIEW FROM COURT OF APPEALS
98-CA-0048
JEFFERSON CIRCUIT COURT NO. 95Cl-0691
ROGER E. SWIFT,
SANDRA L. JACOBS,
GENERALI-U.S. BRANCH, AND
WEST AMERICAN INSURANCE COMPANY
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
Appellant, Susan D. Miller, is a blue collar worker who performed manual labor
her entire life. She was impaired by chronic arthritis at the time she was involved in an
automobile collision. As a result of the collision, she experienced shoulder, chest, and
knee pain. Dr. Peter Jannace testified that Appellant had an acute injury superimposed
on a chronic condition of arthritis. It is clear from the record that the automobile collision
exacerbated her pre-existing impairments and inflicted additional injuries upon
Appellant. The jury awarded the full amount of her medical bills and lost wages, but
gave zero damages for pain and suffering.
Dr. Thurman, M.D., a physiatrist, treated Appellant for the injuries sustained in
the automobile accident, and testified that she had black and blue discoloration to the
right upper anterior chest and shoulder, secondary to the trauma from the seat and
harness belt. He opined that Appellant suffered a bruise to the acromioclavicular joint.
He testified that within a week of the collision, Appellant developed pain in the right
knee when standing and walking, as well as swelling of the lateral aspect of the joint
line of the right knee with accompanying pain in this area. Dr. Thurman testified that
Appellant also had a sprain of the coronary ligaments of the lateral meniscus of the
knee which he related to the automobile collision.
Upon such evidence, it is inconceivable that damages for pain and suffering
were not awarded. It is irrational for a jury to find that Appellant was unable to work and
that needed medical treatment was rendered, yet she experienced no pain and
suffering. Such a verdict is illogical and inconsistent with human experience. When an
injured party has medical bills that are reasonably related to the collision, and they are
accrued in good faith and are not merely diagnostic, it must be presumed that
compensable injury occurred. Had the verdict been adequate but ungenerous, there
would be no error. However, “0” is inadequate as well as inconsistent with the balance
of the verdict,
A majority of the Court of Appeals opined that Appellant’s pre-existing injury and
condition may well have rendered her in a condition such that the auto collision inflicted
no additional pain and suffering. However, the jury did not receive any conflicting
evidence with respect to injuries inflicted by the auto collision. Appellant manifested
many new symptoms (bruising, locking knee joint, etc.) in addition to her pre-existing
arthritis. She had acute symptoms superimposed upon chronic problems. Diagnostic
studies verified that Appellant received a new injury.
Damages for pain and suffering are a significant part of our compensation
system. The right to these damages has been long recognized in our jurisprudence. In
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the case of Schriewer v. Schworer, Ky., 178 S.W.2d 598, 599 (1944) , where the
jury
awarded no pain and suffering damages even though medical expenses were
compensated, this Court stated:
The sum found by the jury is the exact sum established by the evidence
for the doctor and nursing, and the jury specifically stated in its verdict that
the sum found was for doctor and nursing. These facts are conclusive
that the jury found nothing for pain and suffering of the decedent, which is
contrary to all the evidence as well as the presumption of law that
decedent did suffer pain... .
This well-established holding states that the right to damages for pain and suffering is
presumed when palpable injury exists. Our predecessor Court also stated in Howard v.
Henderson Traction Co., Ky., 121 S.W. 954, 955 (1909), the following with respect to a
plaintiffs entitlement to pain and suffering damages:
This court has so often held, in personal injury cases, that a recovery may
be had for all pain and suffering endured as a direct or proximate result of
the injury that a citation of the authorities is deemed unnecessary. In all
cases where this question has arisen, a recovery has been permitted,
where the facts justified a recovery at all, not only for the pain and
suffering endured before the trial, but for such as the evidence shows it is
reasonably certain the plaintiff will thereafter endure as the direct or
proximate result of the injury, and in an instruction upon this point the
plaintiff is as much entitled to have the jury told that he may recover for
pain and suffering which he may thereafter endure as he is that he may
recover for such pain and suffering as he has theretofore endured; and it
will not do for the trial judge, where there is any substantial evidence
showing that there is likelihood that the plaintiff will still continue to suffer
because of the injury, to refuse to give the jury an instruction such as was
asked in this case.
Hence the entitlement to damages for pain and suffering is firmly rooted in our
jurisprudence, and failure to award same, when evidence is presented proving injury, is
erroneous.
In Schmeltekopf v. Johnson Well Service, 810 S.W.2d 865 (Tex. App. 1991) the
Texas Court of Appeals reviewed a case wherein the defendant was found 85% liable
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.
.
by a jury who then returned no damages. With respect to the jury’s actions, the Court
stated:
A jury’s failure to find a fact need not be supported by any evidence, but
the jury may not refuse to find a fact in the face of overwhelming evidence
of the existence of the fact. Russell v. Hankerson 771 S.W.2d 650, 653
(Tex. App. 1989). A jury is not at liberty to disregard evidence that an
injury has occurred and to refuse to award damages.
Id. at 869. Essentially, the jury below in the instant case refused to award damages
even though they were confronted with overwhelming evidence of same.
In Maier v. Santucci, 697 A.2d 747 (Del. 1997), the Supreme Court of Delaware
addressed a case in which a directed verdict on liability was entered and a “0” award of
damages was returned by the jury, presumably in response to the vigorous defense that
the pain and suffering of the plaintiff was largely caused by pre-existing arthritis. The
Court held, “[i]n light of the uncontradicted medical testimony that [PlaintiffI suffered an
injury as a result of the accident, the jury’s award of $0 damages is inadequate and
unacceptable as a matter of law.” Id. at 749.
Here, the jury found that Appellant could not go to work and had medical bills
related to injuries received in the accident. It further found that the medical bills were
accrued in good faith, as it returned a verdict for their total amount. The jury obviously
accepted that an injury took place, but believed that it was somehow sustained without
compensable pain and suffering. Such a conclusion flies in the face of ordinary
experience and logic.
Further, it is inhumane to deny damages for pain and suffering to one who
already has pre-existing pain. This draws a “bull’s eye” on the infirm and handicapped.
It unconstitutionally sets them apart as a different class of citizens with different tort
rights. This is an especially unfortunate rule of law in a country which is supposed to be
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in the process of vindicating the rights of the infirm with such legislation as Americans
with Disabilities Act. Further, in a state with an aging population, are we to understand
that our tort rights diminish as we become infirm and impaired from the degenerative
aging process? Will we eventually become too old to experience suffering at the hand
of a wrongdoer? If such is the case, the alternative to old age may well be a better
choice.
Lambert, C.J. and Stumbo, J., join in this dissent.
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