DILLS BERRYMAN III and ROB'S AUTO SALES, INC. v. ORVILLE W. HARDY
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001375-MR
DILLS BERRYMAN III and
ROB'S AUTO SALES, INC.
APPELLANTS
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JUDGE
ACTION NO. 99-CI-00287
v.
ORVILLE W. HARDY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
COMBS, McANULTY, and SCHRODER, Judges.
COMBS, JUDGE:
Dills Berryman, III and Rob’s Auto Sales, Inc.
(Rob’s), appeal a judgment of the Estill Circuit Court.
Following a bench trial, the court awarded Orville Hardy
$157,331.31 for injuries he suffered in an automobile accident.
Although the appellants have raised several issues for our
review, they primarily argue that the weight of the evidence did
not support the award.
After reviewing the record and the
findings of the trial court, we have discovered no error.
we affirm.
Thus,
On January 19, 1999, Berryman, who was test-driving a
used car offered for sale by Rob’s, collided with a vehicle
occupied by Hardy.
There is no dispute that Berryman alone was
at fault.
Hardy was taken to a hospital complaining of back and
neck pain.
The appellants conceded liability for the accident.
At trial, they disputed Hardy’s claim for damages by arguing that
he was exaggerating his symptoms.
They introduced a videotape in
which Hardy was shown engaging in physical activities, such as
lifting heavy objects and rowing a boat -- activities which Hardy
had claimed he was incapable of performing in his pre-trial
deposition testimony.
Alternatively, the appellants attempted to establish
that Hardy’s symptoms were attributable to a pre-existing
degenerative condition rather than to the automobile accident.
They relied on the testimony of Dr. Benjamin McQuaide, a
radiologist.
After reading the X-rays taken following the
accident, Dr. McQuaide stated that they failed to reveal any
“findings of acute injury to the lumbar spine.”
At the conclusion of the trial, the parties were
directed to submit proposed findings of fact, conclusions of law,
and a judgment.
On February 27, 2001, the trial court entered
the trial order and judgment tendered by the appellants.
That
order concluded that Hardy failed to prove that he had sustained
any injury warranting an award of damages as a result of the
collision caused by Berryman.
Hardy filed a timely motion to
alter, amend, or vacate the judgment.
The court granted that
motion and stated that its earlier judgment had been
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“inadvertently” entered.
On April 16, 2001, the Estill Circuit
Court entered a new judgment which (with minor exceptions) was
identical to the proposed judgment tendered by Hardy.
The new
judgment awarded Hardy the following sums in damages:
$456.31
for medical expenses; $42,500 for future medical expenses;
$50,000 for his impaired earning capacity; and $66,375 for pain
and suffering ($1,000 for the day of the wreck and $5.00 per day
for the remainder of Hardy’s life expectancy).
The appellants’
motion to vacate the judgment was denied on May 25, 2001; this
appeal followed.
The appellants contend that the trial court’s findings
are not supported by the evidence.
They particularly object to
the finding that Hardy’s back condition is attributable to the
accident and to the trial court’s failure to give any weight to
the surveillance tape, which depicted Hardy performing tasks
inconsistent with his claim of disability after the accident.
Pursuant to CR1 52, our scope of review on appeal is
strictly circumscribed and is limited to a consideration of
whether the trial court’s findings are clearly erroneous; i.e.,
whether they lack a foundation of substantial evidence.
The findings of the trial judge may not be
set aside unless clearly erroneous with due
regard being given to the opportunity of the
trial judge to consider the credibility of
the witnesses.
Lawson v. Loid, Ky., 896 S.W.2d 1, 3 (1995).
Furthermore, when a
bench trial is held, the trial court enjoys the exclusive
province of determining the credibility and weight of the
1
Kentucky Rules of Civil Procedure.
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evidence.
We may not intrude upon its exercise of that
prerogative.
See Ironton Fire Brick Company v. Burchett, Ky.,
288 S.W.2d 47 (1956).
Although the appellants contend that the trial court
“misunderstood” the medical evidence, there was no finding that
Hardy’s bulging discs (as revealed by an MRI conducted after the
accident) were caused by the accident.
Rather, the court found
that Hardy’s lumbar facet syndrome was caused by the accident.
Lumbar facet syndrome is an extremely painful chronic condition
for which Hardy has been prescribed oxycontin, valium, and
motrin.
Specifically, the court recited the following analysis:
8. Dr. Ballard Wright, the senior
physician in the Pain Treatment Center, and a
Board certified practitioner in
anesthesiology and pain medicine, testified
that [Hardy’s] back condition is causally
related to the January 19, 1999 wreck; that
his injuries are acute injuries; that his
condition is permanent; that he should not,
and indeed cannot, do the manual labor type
work he did before the wreck; and that in his
opinion [Hardy’s] future medical expenses
will be approximately $50,000.00.
On causation, Dr. Wright specifically
testified that “there is a causal effect
between the accident and his present state
that we find him in, for which we are
treating him.”
. . .
11. The Court finds that [Hardy] was injured
in the wreck of January 19, 1999, due to the
stipulated negligence of [Berryman]; that as
a result he suffers chronic back pain for
which he must take pain medication daily;
that the condition is permanent; . . .
The appellants correctly note that the evidence
established that Hardy had significant pre-existing degenerative
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changes in his back.
However, the evidence ably supports the
court’s finding that the accident exacerbated that condition into
an acutely painful syndrome for which Hardy is required to take
powerful pain medication.
The trial court’s finding that Hardy’s
back pain was caused by the accident is supported by the
following testimony of Dr. Wright:
Q The injuries that [Hardy] complains of,
are these consistent with the trauma that
comes from an automobile accident?
A Yes. These are frequent problems that we
see. They are not unusual. So this is not
an unusual situation. It is common.
Q Were the injuries to his vertebrae an
acute injury?
A Well, I believe so. And I will say why.
I did examine this patient thoroughly on
February 2nd and I think that we will
probably get to that. He still has evidence
of what one would say a lumbosacral and
cervical sprain. In other words, he has
evidence of tenderness, muscle spasm,
limitation of motion. These are the kinds of
things you will see following trauma where
there is a torque to the spine. They are
painful, not incapacitating but painful. And
they are often chronic and can be lifetime.
They are treatable. The treatment is to
minimize the discomfort and to maximize
mobility.
His treatment at this point has been
inadequate because of the things that we
would like to do that would give him more
comfort and more improved activity levels, we
have not done. But I would simply say that
this is --this patient is not unlike many
patients we see here at the center.
Therefore, I believe that--I guess what we
are really here for today as much as to say
does he have a medical problem, which we
believe he does because we undertook to treat
him long before we were brought into this
from a medical/legal aspect. What we are
here for probably inasmuch as anything is to
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establish whether there was--whether this
accident caused the present problem.
I think it did at least in part. I
can’t say that his total pain problem is
related to this accident. I think but what
the patient says and unless this is disputed
and shown to be contrary to what his history
is, he said that he was not getting medical
attention and had no significant pain problem
prior to this accident. So if that is in
fact the case, if that is true, then one, I
think, must conclude that there is a causal
effect between the accident and his present
state that we find him in, for which we are
treating him.
So that’s where I come from and what I
can say about this. And if there are facts
to dispute that, then let it be. But from
our point of view, if you are asking me is
this acute, it would appear to be acute.
Now, were there, within this man’s physical
make-up, problems that could have ultimately
resulted in a similar pain to what he has
now, yes, he has changes on x-ray that show
degenerative changes and these are what we
call wear and tear disease.
This man was a laborer. He is
uneducated. He worked at block laying and
moving wheel barrows and picking up blocks.
And this is the kind of individual who will
ultimately develop in most cases, not every
case, but in most cases, will develop
sometime in their lifetime, neck and back
pain. But we had an acute situation occur
here which I believe brought into disabling
reality what was dormant and so I feel, yes,
this was an acute situation which has caused
this man to be where he is today. . . .
This testimony, coupled with Hardy’s testimony regarding his preaccident condition and abilities, amply supports the trial
court’s findings with respect to the issues of the extent of
Hardy’s injuries as well as causation.
The appellants challenge the finding that there was no
evidence to contradict Dr. Wright’s medical opinion by citing to
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the testimony of Dr. McQuaide, who found no evidence of an acute
injury following the accident.
While Dr. McQuaide testified that
he saw no evidence of injury on the X-rays, he nevertheless
acknowledged that there could be certain back disorders resulting
from trauma that are not observable on X-rays.
Dr. McQuaide did
not examine Hardy nor did he take his medical history.
Dr.
McQuaide did not address (much less contradict) Dr. Wright’s
diagnosis of lumbar facet syndrome.
Therefore, we find no error
in the court’s treatment of Dr. Wright’s testimony.
The appellants also maintain that Dr. Wright’s
testimony was “too speculative” to support the findings with
respect to causation.
They rely on Nashville Railroad Company v.
Mattingly, Ky., 318 S.W.2d 844, 849 (1958), in which an award was
characterized as “so excessive as to indicate passion and
prejudice on the part of the jury.”
distinguishable.
The Mattingly case is
Significantly, there was no evidence presented
by the appellants that Hardy had an active disabling back
condition prior to the accident as did the plaintiff in
Mattingly.
Furthermore, there was no medical evidence in the
case before us to contradict Dr. Wright’s opinion that Hardy’s
back pain was caused or at least aroused into disabling reality
by the jolt that it suffered in the automobile accident.
Assuming that Hardy’s degenerative changes would have ultimately
resulted in pain and disability, we find nothing excessive in the
trial court’s award of $66,375 for the pain and suffering that
Hardy will suffer far sooner than he otherwise would have
experienced.
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With respect to the medical evidence, the appellants
argue that the trial court erred in allowing the deposition of
Dr. Wright to be admitted into evidence because Hardy failed to
disclose CR 26 information prior to his deposition.
CR
26.05(a)(ii) requires a party to supplement his response to any
question regarding:
the identity of each person expected to be
called as an expert witness at trial, the
subject matter on which he is expected to
testify, and the substance of his testimony.
Hardy did not supplement his answers to interrogatories to
disclose the nature of Dr. Wright’s opinions with respect to
causation.
However, when a party fails to supplement discovery
responses, a reversal for a new trial is proper only where the
complaining party is able to show significant prejudice.
v. Galen of Va., Inc., Ky.App., 71 S.W.3d 105, (2001).
Welsh
The
appellants did not ask for a continuance to allow them to obtain
evidence to rebut the allegedly surprising testimony of Dr.
Wright.
Accordingly, we find no abuse of the court’s discretion
in allowing the testimony to be admitted into evidence.
Next, the appellants argue that the court erred in
making an award for past medical expenses and future medical
expenses.
With respect to past medical expenses, they allege
that the figure to which Hardy testified at trial exceeded the
amount contained in his pre-trial discovery responses.
They also
allege that the expenses were not reasonable and necessary.
As
to future medicals, they contend that Dr. Wright’s testimony was
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speculative and that it is not fair to require them to pay for a
condition Hardy would have ultimately suffered.
The appellants have once again failed to demonstrate
prejudice resulting from Hardy’s failure to update his answers to
interrogatories.
were filed.
They deposed Hardy after the interrogatories
There were aware that he was receiving on-going
treatment at the Pain Treatment Center (where Dr. Wright
practices) and that several costly medicines were prescribed for
him.
The trial court was entitled to find from the evidence that
the medical expenses were reasonable — especially since there was
no evidence to the contrary.
S.W.2d 490 (1979).
See Bolin v. Grider, Ky., 580
Additionally, the award of $42,000 for future
medicals is well supported by the testimony of Dr. Wright, who
stated that Hardy’s medical treatment would “be somewhere around
$50,000.”
The appellants allege error in the trial court’s award
of $50,000 for Hardy’s impaired earning capacity.
As with the
other issues, they contend that the proof was “at best
speculative.”
Again, after our review, we have determined that
the evidence was sufficient to support the award for this item of
damages.
Although the appellants correctly state that Hardy has
not filed tax returns for many years, he nevertheless testified
that he earned approximately $5,000 annually picking up odd jobs
involving heavy labor.
The evidence from both Hardy and Dr.
Wright established that Hardy has a limited education and that he
could not pursue the kinds of jobs he had performed in the past.
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As the fact finder, the trial court was entitled to believe
Hardy; its findings are not clearly erroneous.
The appellants particularly object to the following
finding with respect to their surveillance tape:
10. The defense adduced testimony and a
videotape from a private investigator who
made long range still and videotape images of
[Hardy] around his home and barns. While the
videotape shows [Hardy] performing some
manual functions, there is no indication that
he was able to do so either without pain or
on a regular basis. This evidence does not
overcome the uncontradicted medical evidence
on [Hardy’s] medical condition and his
medical disability testified to by Dr.
Wright. In fact, what is seen on the
videotape is precisely what Dr. Wright feared
[Hardy] would do: try things which he really
should not be doing from a medical standpoint
because he does not understand the
significance of medical advice due to his
limited education and capacity.
The appellants argue that the surveillance tape totally
undermined Hardy’s claim that he was injured in the accident.
They urge that this evidence “was compelling, uncontradicted, and
conclusive.”
While the tape does show Hardy performing the types
of lifting and moving which he had testified in his pre-trial
deposition he could no longer manage without considerable pain,
the tape was but one piece of evidence for the trial court to
consider.
Contrary to the appellants’ contention, the tape does
not clearly compel a finding in their favor on any of the issues
tried by the court — including the extent of Hardy’s physical
injuries caused by the wreck.
Finally, after considering the procedural issues raised
by the appellants, we find no reversible error.
The appellants
allege error with respect to the court’s use of the findings of
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facts, conclusions of law, and judgment tendered by Hardy.
However, the appellants did not object when the trial court
directed the parties to submit proposed findings of fact and
conclusions of law.
Nor did they complain when the trial court
originally entered the exact judgment that they had tendered.
Under these circumstances, and considering the precedent in this
area, we find no abuse of the court’s discretion in utilizing the
proposed findings of fact submitted by Hardy.
See, Bingham v.
Bingham, Ky., 628 S.W.2d 628 (1982) and Prater v. Commonwealth,
Ky., 954 S.W.2d 954, 956 (1997).
The appellants assert that the trial court’s order
vacating its original judgment without conducting a hearing was
“highly irregular, improper, and suspicious.”
After studying the
record in light of these accusations, we have found nothing
sinister or improper in the ruling on Hardy’s motion to vacate or
amend pursuant to CR 52.02 and CR 59.05.
Since the court ruled
that it had not intended to enter the original judgment and that
it had done so inadvertently, the appellants have not explained
how a hearing on the motion would have been of any meaningful
assistance.
We are at a loss to discern how a hearing would have
made any difference under these circumstances.
They also contend that the trial court did not have
jurisdiction to amend its initial judgment outside the ten-day
period provided in CR 52.02, which provides:
Not later than 10 days after entry of
judgment the court of its own initiative, or
on the motion of a party made not later than
10 days after entry of judgment, may amend
its findings or make additional findings and
may amend the judgment accordingly. The
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motion may be made with a motion for a new
trial pursuant to Rule 59. (Emphasis added.)
By reference to CR 59, a motion under CR 52.02 is timely made
when it is served on the other parties within ten days of the
entry of the judgment.
See CR 59.02.
In this case, the original
trial order/judgment was entered February 27, 2001.
Although
Hardy’s motion to vacate or amend was not filed until March 13,
2001, it was served on March 7, 2001 -- within ten days of the
judgment.
The certificate of service has not been challenged;
thus, the motion was sufficiently timely to give the court an
adequate jurisdictional basis for amending its findings and
judgment.
See Huddleston v. Murley, Ky.App., 757 S.W.2d 216
(1988).
Finally, the appellants argue that the court erred in
allowing Hardy’s wife, Linda Hardy, to testify because she had
not been identified as a witness prior to trial.
Although they
contend that they were prejudiced by Mrs. Hardy’s testimony, they
fail to recite any specific fact traceable to her testimony.
Essentially, Mrs. Hardy’s testimony mirrored that of her husband
with respect to his condition and medical treatment; at the most,
it was merely cumulative.
Thus, the alleged abuse of discretion
— if any — did not result rise to the level of reversible error.
The judgment of the Estill Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Thomas L. Travis
Chad Wells
Lexington, Kentucky
James T. Gilbert
William Baxter Jennings
Richmond, Kentucky
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