GARY BUDKE v. JASON MORGAN and NANCY MORGAN
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RENDERED: July 24, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
96-CA-003030-MR
GARY BUDKE
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 95-CI-0624
v.
JASON MORGAN and
NANCY MORGAN
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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COMBS, GUIDUGLI and JOHNSON, Judges.
JOHNSON, JUDGE:
Gary D. Budke (Budke) appeals from the Campbell
Circuit Court's trial order and judgment entered on September 18,
1996, following the trial court's October 17, 1996 order denying
Budke's motion for a new trial.
We affirm.
Budke, a twenty-four year old race car driver,
sustained injuries in a December 22, 1994 automobile accident
with Jason Morgan (Morgan), a minor.1
Two days after the
accident, Budke bent down to pick up a paper towel, heard a loud
pop in his back and began experiencing pain in his shoulders and
upper back.
He went to the emergency room where he was x-rayed
and referred to Dr. Michael Grefer (Dr. Grefer).
Dr. Grefer
evaluated Budke on January 11, 1995, and then started Budke in a
physical therapy program which lasted until March 24, 1995.
On
June 16, 1995, Budke brought suit against Morgan and his mother
which alleged that Morgan's negligence caused Budke to suffer
injuries to his neck, back and shoulder.
A jury trial was held on August 28, 1996.
The damage
to Budke's automobile and the rental replacement cost for his
automobile were stipulated to be $2,797 and the medical expenses
were stipulated to be $5,890.
Budke's itemization of these
medical expenses includes $212 for an emergency room visit, $687
for physician's visits, $36 for an x-ray, $33 for prescription
medications and $4,922 for physical therapy services.
Budke, Dr.
Grefer and Joy Curry (Curry), executive director of the physical
therapy services company, testified.
Curry presented Budke's
physical therapy records.
The jury apportioned fault entirely to Morgan and
awarded Budke the $2,797 that he had claimed for property damage
and loss of use of his vehicle and the $5,890 that he had claimed
for his medical expenses.
However, the jury denied Budke an
1
Morgan's mother, Nancy Morgan, owned the car which Morgan
was driving.
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award for pain and suffering by writing "0" on the dollar amount
blank.2
Nine jurors signed this verdict form.
Budke's counsel
immediately argued that the verdict was inconsistent since the
jury awarded medical expenses but did not award damages for pain
and suffering.
He requested that the jury re-deliberate the zero
verdict.
During a bench conference, Morgan's counsel stated that
he believed that Budke was making a mistake in requesting redeliberation on the pain and suffering award.
However, Budke's
counsel stated that he thought "that to do otherwise would be
reversible."
Morgan's counsel reiterated his belief that "the
proper motion is not to have them re-deliberate but to have a new
trial on that issue."
Budke's counsel acknowledged that he was
"not certain" about Morgan's counsel's argument but he was
requesting re-deliberation to "comply[] with the client's
request."
Budke's counsel then stated that "at this time I'm
willing to stand."
The trial court instructed the jury as
follows:
Based upon the finding that you have made in
this case that an award of negligence was
called for by a nine or more verdict and that
medical bills were called for as a result of
that accident by nine or more individuals,
pursuant to law there must be some award for
pain and suffering. I’m going to ask you to
recognize that there needs to be some award
in that area and ask you to re-deliberate
that issue along, everything else is a
legally sufficient verdict that I can accept
2
Budke's pain and suffering claim included past and future
pain and suffering.
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here in open court but I am going to ask you
to adjourn once again to the jury room on the
issue of mental and physical suffering
including such suffering as reasonably
certain to endure in the future. That
includes past, present and future and ask you
to consider an award in that area based upon
the other findings that you have made. I
will do one new form for you that will have
nothing more than that since this is already
written on and I want to preserve this for
the integrity of the trial itself.
The jury returned a unanimous verdict awarding Budke
$3,000 for pain and suffering.
Budke's counsel objected to the
verdict "just from the standpoint" that he was "concerned and []
not certain as to the law on the requirement of having the jury
come back with a zero on pain and suffering where they find fault
100% against the negligent party."
Morgan's counsel reminded the
trial court that it was Budke's counsel who had requested redeliberation.
The trial court then stated as follows:
I guess the problem with that, if you're
asking me to take any type of corrective
action at this time, Mr. Blau, is that I did
send them back at your request, obviously
without objection and that jury did not come
in with, under the parties - we had some
discussion in chambers, they did come up with
different than a very minor amount. The
decision will stand basically because we
requested them to go back and assess a figure
and this one was unanimous, that's the only
question they had total unanimity on and that
was on the pain and suffering. So, I'll
accept the verdict as rendered.
On September 26, 1996, Budke filed a motion for a new
trial pursuant to Kentucky Rules of Civil Procedure (CR) 59.01
arguing that the verdict was contrary to the evidence and to the
law and that the amount of the award was grossly inadequate.
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The
trial court stated that pursuant to Cooper v. Fultz, Ky., 812
S.W.2d 497 (1991), the award of zero dollars for pain and
suffering was not inconsistent--it was a complete verdict which
was subject to a motion for a new trial based on the allegation
of inadequacy.
The trial court then stated as follows:
However, it was the Plaintiff who moved the
Court to return the jury to further
deliberate which resulted in the award of 0
dollars for pain and suffering to be changed
to $3,000 for Plaintiff's pain and suffering.
. . . The trial court is charged with the
responsibility of deciding whether the jury's
award appears to have been given under the
influence of passion or prejudice or in
disregard of the evidence or the instructions
of the court.
. . .
The jury had the opportunity to hear
Plaintiff's testimony, the testimony of the
witnesses and his treating physician to consider for its deliberations. An award of
$3,000 for pain and suffering is not inadequate based upon the testimony presented to
the jury in this case.
The trial court denied Budke's motion for a new trial.
This
appeal followed.
Budke argues that the trial court erred in ordering the
jury to re-deliberate when the proper procedure was to grant a
new trial.
In affirming the trial court, we find Shortridge v.
Rice, Ky. App., 929 S.W.2d 194 (1996), persuasive.
Shortridge
brought an action against Rice for personal injuries suffered in
an automobile accident.
The jury apportioned fault equally and
awarded Shortridge $5,000 of her claimed $18,000 medical
expenses; however, the jury wrote "0" in the dollar amount blank
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for pain and suffering.
Shortridge's attorney asked repeatedly
for the trial court to order the jury to reconsider the zero
verdict.
After the trial court refused three times, it granted
Shortridge's request and the jury awarded Shortridge $1,000 for
pain and suffering.
On appeal, Shortridge argued that the
original jury verdict was defective and the trial court erred in
ordering the jury to reconsider the zero award since she was
entitled to a new trial pursuant to Cooper, supra.
However, this
Court distinguished Shortridge from Cooper as follows:
“While we
agree wholeheartedly with Cooper, we cannot overlook Shortridge's
insistence that the trial court order reconsideration.
We will
not fault the court for complying with that insistent request.”
Shortridge, supra at 196.
In the case sub judice, Budke stood upon his request
for reconsideration in spite of Morgan's argument that a motion
for a new trial was the proper procedure.
The trial court
acknowledged that the appropriate remedy under Cooper was a
motion for a new trial, but the trial court emphasized that it
ordered reconsideration of the verdict only at counsel's insistence.
The Shortridge Court did not fault the trial court for
complying with Shortridge's insistence on jury reconsideration;
likewise, in applying Shortridge to the case sub judice, we
cannot fault the trial court in this case either.
Budke's second argument is that the jury verdict of
$3,000 for pain and suffering was clearly inadequate and not
supported by the weight of the evidence.
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The trial court noted
that the unanimous jury verdict was "different than a very minor
amount.”
We again find Shortridge, supra, persuasive.
In
Shortridge, this Court stated as follows:
As noted, after reconsidering the pain and
suffering issue, the jury increased the award
from zero to $1,000.00. Shortridge claims
that the increased pain and suffering award
was inadequate and that the court should have
accordingly granted her motion for a new
trial. This is not a case where the jury
simply erased the zero and replaced it with
"a few dollars" which, as the Supreme Court
pointed out in Cooper, 812 S.W.2d at 500,
would not correct the inadequacy. Rather
than simply awarding "a few dollars" after
reconsideration, the jury awarded Shortridge
$1,000.00, one-fifth of the unchallenged
$5,000.00 award of special damages. This
case is, therefore, distinguishable from
Cooper and cases such as Hazelwood [v.
Beauchamp, Ky.App.,] 766 S.W.2d at 439
[1989], where the jury only awarded $250.00
after reconsideration.
929 S.W.2d at 196.
Budke points out that "[i]n the case at bar, there was
no independent medical examination done by the Appellees, Jason
and Nancy Morgan.
In fact, there was no evidence at all offered
contrary to the Appellant's treating physician, Dr. Grefer."
While Dr. Grefer testified that Budke was injured and needed
physical therapy, he also testified that Budke received $5,000 of
physical therapy to treat a purely subjective condition.
Dr.
Grefer stated that he had made no objective finding that
indicated that Budke had a medical problem.
Dr. Grefer also
stated that he had last seen Budke on March 22, 1995, and at that
time Budke made an appointment to return in four weeks.
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Dr.
Grefer stated that Budke never returned and the fact that Budke
had not sought therapy in over fifteen months would appear to
indicate that Budke's condition was satisfactory.
The jury
observed Budke give his testimony first-hand and simply may not
have believed that Budke's pain and suffering was as great as he
claimed.
See Davidson v. Vogler, Ky., 507 S.W.2d 160, 162
(1974).
We conclude that the verdict bears some reasonable
relationship to the evidence and we cannot say the trial court's
evaluation of the jury's award was contrary to the evidence.
The
jury's award of $3,000 represents over half of the medical award,
and as stated in Shortridge, "[t]his is not a case where the jury
simply erased the zero and replaced it with 'a few dollars'
. . . ."
929 S.W.2d at 196.
The trial court did not err in
refusing to grant a new trial based upon the claim of an
inadequate award.
For the foregoing reasons, we affirm the judgment of
the Campbell Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Robert E. Blau
Cold Spring, KY
Hon. A. Berry Howe
Wilder, KY
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