MID AMERICA AIRGAS, INC. v. RON MORRIS AND SOUTHEASTERN UNITED MIDGROUP, INC., d/b/a ANTHEM BLUE CROSS AND BLUE SHIELD
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000552-MR
MID AMERICA AIRGAS, INC.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 97-CI-00391
v.
RON MORRIS AND
SOUTHEASTERN UNITED MIDGROUP, INC.,
d/b/a ANTHEM BLUE CROSS AND BLUE SHIELD
APPELLEES
OPINION
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART WITH DIRECTIONS
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE: Mid America Airgas, Inc. (Airgas) appeals from a
November 24, 1999, trial order and judgment of the McCracken
Circuit Court.
We affirm in part and reverse and remand in part
with directions.
Airgas is in the business of selling various types of
gases for use in the medical field and manufacturing processes.
Appellee, Ron Morris, is a self-employed septic tank cleaner.
Sometime prior to April 1997, Airgas discontinued its manufacture
of acetylene gas.
In the manufacture of acetylene gas, carbide
lime accumulates in the storage tanks.
On April 1, 1997, Morris,
d/b/a Ron's Septic System, was hired to remove these
accumulations.
Unaware of the caustic properties of the carbide
lime, Morris worked in the lime for several hours.
As a result,
he received severe burns to the lower portions of his legs.
These burns resulted in permanent tissue and nerve damage.
Morris brought an action against Airgas on April 23,
1997.
Southeastern United Midgroup, Inc., d/b/a Anthem Blue
Cross and Blue Shield (Southeastern), Morris' health insurer,
intervened in order to assert its right to subrogation.
On
February 19, 1999, with leave of the circuit court, Morris'
complaint was amended in order to seek punitive damages.
matter was tried on November 22 and 23, 1999.
The
On November 24,
1999, a jury verdict and judgment awarded Morris $30,000.00 for
medical expenses and $500,000.00 for pain and suffering, past and
future.
The jury declined to award punitive damages.
The jury
further apportioned liability thirty percent against Morris and
seventy percent against Airgas.
Airgas made a motion for a new
trial and/or motion to alter, amend, or vacate the judgment.
R. Civ. Proc. (CR) 59.02.
court.
Ky.
This motion was denied by the circuit
This appeal follows.
Airgas first contends the circuit court committed
reversible error by allowing introduction of evidence showing
Airgas' financial worth.
In support of its argument, Airgas
cites Hardaway Management Company v. Southerland, Ky., 977 S.W.2d
910 (1998).
In Hardaway, the Kentucky Supreme Court held that
parties may not present evidence of the financial condition of
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either side of the litigation whether or not punitive damages
were being sought.1
Id. at 916.
In the case sub judice, we
believe the evidence should not have been introduced under
Hardaway; however, for the reasons hereinafter stated, we view
such admission as harmless error.
Ky R. of Evid. 103; CR 61.01.
Morris introduced evidence of Airgas' net worth, then
around four hundred million dollars, and of its annual gross
sales of nearly one billion dollars.
The record indicates that
Airgas itself introduced evidence that it was a large national
company traded on the New York Stock Exchange with thousands of
employees.
Airgas offered this information in an apparent
attempt to show that it was a successful company and had never
experienced any similar problems with the carbide lime at any of
its facilities.
Under the circumstances, we think Morris'
evidence was partly cumulative in nature and thus harmless.
See
White v. Commonwealth, Ky., 5 S.W.3d 140 (1999); Texas Eastern
Transmission Corp. v. Allen, Ky., 282 S.W.2d 338 (1955).
The award to Morris in this case was $30,000.00 for
medical expenses and $500,000.00 in pain and suffering.
That
award was reduced by thirty percent based on the respective
assignment of liability to the parties.2
As hereinbefore noted,
1
We do note, however, that such evidence is permitted by
statute to show the extent to which the defendant profited from
the wrongful act itself. Kentucky Revised Statutes
411.186(2)(c); see United Parcel Service Company v. Rickert, Ky.,
996 S.W.2d 464 (1999).
2
The medical compensatory award will be further reduced by
approximately $2,200.00 that is to be paid to Southeastern United
Midgroup, Inc., d/b/a Anthem Blue Cross and Blue Shield, as
Morris' subrogee.
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no award was made for punitive damages.
In viewing the award
upon the record as a whole, we believe the jury was unaffected by
Airgas' financial strength.
We, therefore, cannot say that the
introduction of the financial evidence resulted in error
prejudicial to Airgas.
See Williams v. Payne, Ky., 515 S.W.2d
618 (1974).
Airgas complains that the circuit court erroneously
admitted evidence that Morris was not covered by workers'
compensation insurance.
The court admonished the jury not to
consider such evidence.
We believe the circuit court's
admonition was sufficient to cure any error.
See Gould v.
Charlton Company, Inc., Ky., 929 S.W.2d 734 (1996).
Airgas' next assignment of error is that the jury's
award of $30,000.00 in medical expenses was not supported by the
evidence.
Specifically, Airgas directs us to jury instruction
number four, which reads:
INSTRUCTION NO. 4
You will determine from the evidence
and award plaintiff a sum or sums of money
that will fairly and reasonably compensate
him for such of the following damages as you
believe from the evidence plaintiff has
sustained directly by reason of the incident:
(a)
(b)
Mental and physical
suffering, including
any such suffering
he is likely to endure
in the future:
$__________
Reasonable medical
expenses incurred:
$__________
Under Instruction 4(b), the jury awarded Morris $30,000.00.
At
trial, the evidence offered with respect to past medical expenses
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was for an amount of approximately $6,800.00.
Airgas contends
that the jury should not have awarded an amount exceeding the
proof of reasonable past medical expenses.
Morris, however,
argues that the award of medical expenses reflects past as well
as future medical expenses.
Airgas.
We are constrained to agree with
We believe jury instruction 4(b) was clearly
unambiguous.
We interpret the instruction as allowing an award
only for past medical expenses.
We believe this interpretation
is consistent with the plain language of that instruction:
“[r]easonable medical expenses incurred.”
We also note that the
circuit court repeatedly offered Morris' counsel the opportunity
to include future medical expenses in the jury instructions,
however, counsel declined.
As such, we are constrained to
conclude that the jury verdict, which obviously included future
medical expenses, was inappropriate.
Upon remand, the circuit
court shall enter an amended judgment reducing the award for
medical expenses to reflect past expenses only.3
Airgas next contends that the circuit court erred by
permitting the jury to consider punitive damages, notwithstanding
the jury made no punitive award.
Airgas thinks the submission of
the punitive damage issue encouraged the jury to make a
compensatory award, which it would not otherwise have done.
3
There is a principle of law which permits an appellate
court to affirm an award rendered under an erroneous instruction
where the amount of the award is not disproportionate or
excessive considering the evidence. See Herald v. Gross, Ky.,
343 S.W.2d 831 (1961). We decline, however, to follow that rule
in the case at hand as we think the award is disproportionate to
the evidence especially in light of the fact the case was neither
tried nor submitted on the issue of permanent injury.
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Punitive damages are appropriate where there is
evidence of a reckless disregard for the safety or property of
others.
See William v. Wilson, Ky., 972 S.W.2d 260 (1998), and
Horton v. Union Light, Heat & Power Company, Ky., 690 S.W.2d 382
(1985).
In violation of its own safety policy, it is undisputed
that Airgas failed to give Morris a Material Safety Data Sheet
(MSDS).
An MSDS is written information concerning certain
materials given to people expected to come into contact with
those materials.
Included in the information are warnings about
the use and safety of such materials.
There was testimony
indicating that Airgas employees were aware of the hazards
involved with carbide lime and failed to warn Morris of the
dangers.
In fact, there was evidence the employees played down
the dangerous properties of the carbide lime.
In light of such
evidence, the circuit court found the jury could have believed
Airgas deliberately misrepresented and concealed the danger of
this lime.
Thus, we cannot say the circuit court erred by
submitting an instruction for punitive damages to the jury.
Moreover, we are persuaded by the general rule of law that the
giving of an instruction on punitive damages is harmless where
the award is compensatory only.
See Combs v. Stewart, 301 Ky.
50, 190 S.W.2d 861 (1945).
In conclusion, we affirm all issues on this appeal with
the exception of the award of medical expenses.
award is remanded for proper adjustment.
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The medical
For the foregoing reasons, we affirm in part, and
reverse and remand in part with directions to enter an amended
judgment consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, RON
MORRIS:
E. Frederick Straub, Jr.
Paducah, Kentucky
James A. Harris, Jr.
Paducah, Kentucky
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