STATE FARM INSURANCE COMPANIES VS. ASHLEY (MARCIA)Annotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
STATE FARM INSURANCE COMPANIES
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, JUDGE
ACTION NO. 04-CI-03688
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BEFORE: THOMPSON, JUDGE; BUCKINGHAM AND HENRY, SENIOR
HENRY, SENIOR JUDGE: State Farm Insurance Companies appeals from a
judgment entered upon a jury verdict that found State Farm was obligated to pay
Senior Judges David C. Buckingham and Michael L. Henry, sitting as Special Judges by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
the full underinsured motorist (UIM) policy limits to its insured Marcia Ashley as a
result of a motor vehicle collision where Ms. Ashley was injured. Although the
jury verdict was for a much larger amount, the judgment was entered for the limits
of the UIM policy. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2002, Marcia Ashley was involved in a motor
vehicle accident in Lexington, Kentucky, when the van she was driving was struck
from behind by a pickup truck driven by James Akers. Akers’ pickup truck and a
trailer it was pulling were loaded with furniture. At the time of the accident a
passenger named Overbee was riding in Akers’ truck. Both vehicles were moving
at the time of the impact, and Ashley’s vehicle was struck on the rear left side of
the vehicle. Ashley sought medical treatment immediately following the collision,
and continued receiving treatment for some time thereafter. Due to injuries to her
neck and shoulder sustained in the accident, Ashley was forced to terminate her
career as a surgical technician at Baptist Regional Medical Center in Corbin,
In July of 2004, Ashley settled with Akers’ insurance carrier,
Kentucky Farm Bureau Insurance Company, for his liability policy limits of
$50,000. On September 8, 2004, Ashley filed a complaint against State Farm for
UIM benefits, seeking her full policy amount of $125,000 for lost wages, past
medical expenses, future medical expenses, pain and suffering, permanent
impairment of her ability to earn money, inconvenience, and greater susceptibility
to future injury.
Ashley filed a motion in limine to exclude and limit certain testimony
and evidence. As a result Akers and Overbee were restricted to testifying about
how the collision occurred and the force of the impact. They were not permitted to
introduce proof that any of Ashley’s losses had been paid by collateral sources. In
response to this motion, State Farm contested the limitation of the scope of Akers’
and Overbee’s testimony, but explicitly stated that it had no objection to the
exclusion of information regarding collateral payments.
A jury trial was held on July 25 and 26, 2006. During the trial, the
judge refused to allow State Farm to introduce as evidence photographs that
showed the side of the van that was not struck, which appeared undamaged. State
Farm moved for a directed verdict on the issue of future medical expenses, as
Ashley offered only one witness who testified as to what Ashley’s future medical
expenses would be. This was denied. Ashley moved for a directed verdict on the
issue of past medical expenses, as State Farm offered no impeaching evidence of
the past medical expenses. State Farm raised the issue of whether all of the
expenses submitted by Ashley were related to the accident, as the medical bills
included medication commonly used for treatment of sinus infections, antibiotics,
and thyroid medication. The trial court granted a directed verdict for Ashley on
this issue, but reserved the right to exclude any expenses that it deemed were not
sufficiently related to the accident.
During closing arguments, Ashley’s counsel made a remark regarding
State Farm’s corporate slogan (“here’s how fair your good neighbor is,” a
reference to State Farm’s corporate slogan “like a good neighbor, State Farm is
there”), and State Farm objected. While the jury was not admonished, Ashley’s
counsel was told to abandon this line of argument, which he did. Ashley’s counsel
also argued that loss of a profession is akin to loss of identity, and proceeded to
argue how jobs define a person’s identity, naming off several professions, one of
which was “minister.” State Farm objected, as there was a minister on the jury.
This objection was overruled.
The jury returned a verdict for Ashley in the amount of $706,902,
most of which was based on future lost earnings. When added to the allowed past
medical expenses ($26,810.45, which included all of the submitted medical bills),
this increased the verdict to $733,712.45. However, because the limits of the
policy in question were $125,000.00, and State Farm had already advanced Ashley
$2,500.00, judgment was entered in the amount of $122,500.00. This appeal was
filed after the denial of State Farm’s Kentucky Rules of Civil Procedure (CR)
59.05 motion to alter, amend or vacate the judgment.
EXCLUSION OF EVIDENCE
The first issue that State Farm raises is that evidence was improperly
excluded by the judge. “It is a well-settled principle of Kentucky law that a trial
court ruling with respect to the admission of evidence will not be reversed absent
an abuse of discretion.” Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
State Farm contends that the trial court erred in limiting the testimony
of Akers and Overbee to descriptions of how the collision occurred and the force
of the impact. State Farm argues that Akers and Overbee should have been
allowed to testify about their own lack of injuries and the minimal damage to their
vehicle. State Farm asserts that this information was relevant to the extent of
Ashley’s injuries. “ ‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
Kentucky Rules of Evidence (KRE) 401. However:
Appeals courts recognize that trial judges are in a better
position to make relevancy decisions and for that reason
show substantial deference for their determinations. They
often use the word “broad” to describe the trial court’s
discretion and say that they will not disturb decisions
without a clear showing of abuse of discretion.
Robert G. Lawson, The Kentucky Evidence Law Handbook, 2.05 at 83 (4th ed.
The trial court found the absence of injury to Akers or Overbee and
the lack of damage to their vehicle or cargo not relevant to Ashley’s injuries. In
the absence of a showing by State Farm that the limitation of this testimony
constituted an abuse of the trial court’s discretion, we find that the limitation was
State Farm also asserts that photographs depicting the undamaged side
of Ashley’s vehicle were improperly excluded. State Farm argues that these
photographs were relevant because they showed that the vehicle could still be
driven and that the damage sustained by the vehicle was minimal. However,
property damage was not at issue in this case. The point that State Farm was trying
to prove with the photographs (that the van could still be driven) was admitted by
Ashley at trial, as Ashley testified that she drove the vehicle home after she was
released from the hospital. These photographs would have been cumulative to that
testimony. “Although relevant, evidence may be excluded if its probative value is
substantially outweighed . . . by considerations of . . . needless presentation of
cumulative evidence.” KRE 403. “[T]he admissibility of photographs is within
the sound discretion of the trial court, and its ruling . . . will not be interfered with
on appeal except upon clear showing of an abuse of discretion.” Tumey v.
Richardson, 437 S.W.2d 201, 205 (Ky. 1969). As State Farm has not shown how
exclusion of these photographs constituted an abuse of discretion, we hold that
exclusion was proper.
EMPHASIS OF DISPARITY
State Farm argues that, throughout the trial, Ashley wrongfully
emphasized the disparity between herself as a natural person and the corporate
defendant. Although State Farm states this was “a recurrent drumbeat theme
throughout the trial,” State Farm points to only two specific instances of this in the
record. CR 76.12(4)(c)(v) requires that a brief contain “ample supportive
references to the record” and “a statement with reference to the record showing
whether the issue was properly preserved for review.” Accordingly, we limit our
review to the two instances cited by State Farm.
State Farm first contends that the remark about State Farm’s corporate
slogan made by Ashley’s counsel during closing arguments was intended to
prejudice the jury and constitutes reversible error. We disagree. Although remarks
and arguments appealing to passion and prejudice are improper, the isolated
sarcastic comment made here did not rise to the level of a serious breach of the
rules. Although no admonition was given, State Farm’s objection was sustained
and Ashley’s counsel abandoned that line of commentary when warned by the trial
court and did not return to it. While we do not find that the trial court committed
error, even if it had, any error would have been harmless. CR 61.01.
State Farm also argues that that Ashley’s testimony that she always
paid her insurance premiums on time constitutes reversible error. KRE 103(a)(1)
requires that an objection must be made in a timely manner or that a motion to
strike must appear in the record. The time to object is “when the damaging
evidence [is] offered, and before it [has] been heard by the jury.” Williams v.
Commonwealth, 602 S.W.2d 148, 149 (Ky. 1980). The record indicates that no
objection to this statement was made during the trial. State Farm contends that the
objection was preserved for review on appeal by objecting to Ashley’s counsel’s
“line of questioning during his closing argument.” This objection was made the
day after the testimony occurred. As this does not constitute a timely objection,
the objection was waived.
FUTURE MEDICAL EXPENSES
State Farm argues that the trial court improperly denied its motion for
directed verdict on the issue of Ashley’s future medical expenses.
[W]hen an appellate court is reviewing evidence
supporting a judgment entered upon a jury verdict, the
role of an appellate court is limited to determining
whether the trial court erred in failing to grant the motion
for a directed verdict. All evidence which favors the
prevailing party must be taken as true and the reviewing
court is not at liberty to determine credibility or the
weight which should be given to the evidence, these
being functions reserved to the trier of fact. The
prevailing party is entitled to all reasonable inferences
which may be drawn from the evidence.
Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998).
Ashley offered testimony by her treating physician that the effects of
her injuries would be life-long, and that her medical bills for the past year would
be a bottom line for her future medical expenses. State Farm offered no
counterproof, but argued that this testimony did not show with reasonable
probability that these expenses would be incurred in the future. Uncertainty as to
the injury itself prevents recovery, but when it is certain that injury has resulted,
uncertainty as to the amount will not preclude recovery. Kellerman v. Dedman,
411 S.W.2d 315, 317 (Ky. 1967). “[P]laintiff will not be denied a substantial
recovery if he has produced the best evidence available and it is sufficient to afford
a reasonable basis for estimating his loss.” Id. “[I]t is enough if the evidence
shows the extent of the damages as a matter of just and reasonable inference,
although the result is only approximate.” Id. The evidence was sufficient to avoid
a directed verdict on this issue. We find no error in this regard.
PAST MEDICAL EXPENSES
State Farm contends that the trial court erred in granting a directed
verdict on the issue of Ashley’s past medical expenses, while reserving the right to
review the bills for expenses not associated with the collision and determine the
amount to which Ashley was entitled. When reviewing whether or not a directed
verdict was correct, we must view the evidence in the light most favorable to the
party opposing the directed verdict. Vitale v. Henchey, 24 S.W.3d 651, 653 (Ky.
2000). “Once medical bills have been introduced they place on the defendant the
practical necessity of going forward with impeaching proof . . . .” Bolin v. Grider,
580 S.W.2d 490, 491 (Ky. 1979). While State Farm offered no direct evidence, it
did call into question whether all of the medication that was included in the
medical bills was associated with the collision. Ashley stated in her testimony that
some of the medication was for a thyroid supplement, stemming from a partial
thyroid removal some years before the collision. The total amount of medical bills
that State Farm disputed as being unrelated to the collision was $1,924.06.
“Generally, a trial judge cannot enter a directed verdict unless there is
a complete absence of proof on a material issue or if no disputed issues of fact
exist upon which reasonable minds could differ.” Bierman, 967 S.W.2d at 18-19.
Because reasonable minds could differ as to whether all of the past medical
expenses that were submitted were related to the collision, we hold that the trial
court erred in granting a directed verdict on the issue of past medical expenses.
However, in light of the disputed amount, $1,924.06, the size of the jury verdict,
$706,902.00, and the actual judgment, $122,500.00, we hold that this was harmless
error in accordance with CR 61.01, as this error does not affect substantial rights of
State Farm contends that Ashley’s counsel violated the “golden rule”
during his closing arguments when he stated “We define ourselves by who we are.
I am a lawyer, a minister, a doctor...whatever we are. That’s who we are. Our jobs
mean many things to us. They mean money. They also mean self-esteem.” State
Farm contends Ashley’s counsel gestured towards one of the jurors, who is a
minister, as he was making these statements. Ashley’s counsel denies making this
gesture, and the trial court did not find that Ashley’s counsel gestured toward one
particular juror. State Farm argues that this was an appeal to passions and
prejudice, and that this resulted in an excessively large verdict.
The “Golden Rule” argument is one which, either
directly or by implication, tells the jurors that in
assessing damages they should put themselves in the
injured person’s place and render such a verdict as they
would wish to receive were they in the plaintiff’s
75A Am. Jur. 2d Trial § 650 (1991). Statements that have been found violative of
the “golden rule” include those that urge the jury “to make the rich defendants
pay.” Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242, 243 (1946).
[P]revious cases finding violations of the golden rule
standard are also premised upon the combination of the
argument and mention of the defendant’s financial
condition. It was the combination of the two, coupled
with repetition, that was particularly invidious.
First and Farmers Bank of Somerset, Inc. v. Henderson, 763 S.W.2d 137, 142 (Ky.
1988). “It is beyond question that the trial judge is in the best position to assess
any actual prejudicial effect.” Id.
The trial court did not find that this statement had any prejudicial
effect, and the statement itself does not rise to the level of statements in previous
cases that have been held to be violations of the “golden rule.” Ashley made no
mention of State Farm’s financial condition, nor was this line of argument directed
at damages or how much the jurors would like to receive in similar circumstances.
State Farm urges us to consider the verdict as being the result of prejudice based on
the size of the verdict and the fact that only 10 of the 12 jurors agreed with the
damage amount. We decline to do so. The statements made by Ashley’s counsel
during closing arguments regarding how people identify themselves through their
jobs were not prejudicial, and it was not error to allow them.
State Farm argues that the verdict was excessive for the nature of the
injuries that Ashley sustained. State Farm argues that this is evidence that the jury
accorded more weight and value to the testimony of the witnesses for Ashley than
its maximum probative value warranted. Again we must disagree.
The amount of damages is a dispute left to the sound
discretion of the jury, and its determination should not be
set aside merely because we would have reached a
different conclusion. If the verdict bears any reasonable
relationship to the evidence of loss suffered, it is the duty
of the trial court and this Court not to disturb the jury's
assessment of damages.
Hazelwood v. Beauchamp, 766 S.W.2d 439, 440 (Ky.App. 1989).
The verdict here was supported by substantial evidence, as Ashley
introduced testimony as to her impaired ability to earn money in the future, which
comprised roughly 66% of the verdict amount. Ashley introduced evidence to
support each element of damage, and the issue of excessive damages was
submitted to the trial court in a motion to alter, amend or vacate. We find no abuse
of discretion, and therefore no error, in the trial court’s rulings on this issue. See
Morrow v. Stivers, 836 S.W.2d 424, 431 (Ky.App. 1992).
COLLATERAL SOURCE RULE
State Farm contends that the trial court erred in its refusal to instruct
the jury as to other compensatory sums of money received by Ashley with regards
to this collision – the collateral source rule. Specifically, this rule provides that
“damages recoverable for a wrong are not diminished by the fact that the injured
party has been wholly or partly indemnified for his loss by insurance . . . .”
Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky.App. 2005). In Ashley’s motion in
limine, she specifically requested that no mention be made of the fact that any of
her losses had been paid by collateral sources. In response to this motion, State
Farm explicitly stated that it did not object to this. Because the trial court did not
rule on this issue and State Farm did not object to the trial court’s instructions to
the jury regarding this matter, this “constitutes a waiver and precludes appellate
review.” See Abuzant v. Shelter Insurance Co., 977 S.W.2d 259, 262 (Ky. App.
For the foregoing reasons, the judgment of the Fayette County Circuit
Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Warren Keller
Amanda Lester Hill
D. Randall Jewell
Robert L. Brown III
M. Austin Mehr