MOTT (LISA) VS. HAYS (ERIC)Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 05-CI-01457
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BEFORE: COMBS, CHIEF JUDGE; ACREE AND CAPERTON, JUDGES.
COMBS, CHIEF JUDGE: Lisa Mott appeals from the denial of two motions by
the Campbell Circuit Court in a personal injury case arising from an automobile
accident. She filed a motion for directed verdict at trial and a motion in limine
prior to trial. She contends that the court erred to her prejudice in denying these
motions and asks for a new trial. We disagree that a new trial is warranted.
Therefore, we affirm.
Mott was involved in an automobile accident with Eric Hays, the
appellee, on November 3, 2003. Both Mott and Hays were travelling eastbound on
Interstate 275. The parties dispute the facts surrounding the accident. Mott claims
that Hays was travelling behind her at a high rate of speed, that he lost control of
his vehicle while changing lanes, and that he struck Mott’s vehicle in the rear. He
then careened off a bridge abutment and struck her vehicle in the rear a second
time. Hays contends that the collision occurred when he changed from the left lane
to the center lane at approximately the same time that Mott moved from the right
lane to the center lane. Mott’s complaint against Hays alleged significant injuries
resulting from the accident.
Experts on both sides testified and agreed that Mott sustained medical
expenses in excess of $1000, the statutory predicate for a tort action based on a
motor vehicle accident. Kentucky Motor Vehicle Reparations Act (MVRA).
Kentucky Revised Statutes (KRS) 304.59-060(2)(b). Therefore, Mott contends
that the court erred in giving any instruction whatsoever on the threshold amount
of damages. While we agree that the instruction was unnecessary and superfluous
under the circumstances, we cannot agree that it prejudiced her case.
In reviewing a motion for directed verdict, we are governed by the
standard set forth in Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 25 (Ky. 2008):
The appropriate standard for review of denial of a
motion for directed verdict is set forth in Lewis v.
Bledsoe Surface Mining Company, 798 S.W.2d 459 (Ky.
1990). In determining whether the circuit court erred in
failing to grant the motion, all evidence that favors the
prevailing party must be taken as true; and the reviewing
court is not at liberty to assess the credibility of witnesses
or determine what weight is to be given the evidence. Id.
at 461. As the prevailing party, Adkins is entitled to all
reasonable inferences that may be drawn from the
evidence. Id. The appellate court is limited to
determining whether the verdict is “palpably or
flagrantly” against the evidence so as “to indicate that it
was reached as a result of passion or prejudice.”
Id. (quoting NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky. 1998).
Mott contends that the instruction created a doubt as to the degree of
seriousness of the accident, minimizing her claim by implication. It is true that the
requirement of the threshold amount in the MVRA was intended to eliminate “the
main brunt of small personal injury claims [.]” Fann v. McGuffey, 534 S.W.2d
770, 773 (Ky. 1976). Mott speculates upon the possible psychological effect of the
instruction on the jury, musing that their award of less than $3000 (when she was
asking for $40,000) was likely attributable to the alleged error of giving of the
Mott relies on Bolin v. Grider, 580 S.W.2d 490 (Ky. 1979), in support
of her claim that the jury instruction warrants a new trial:
Once a plaintiff has introduced medical expense evidence
to establish that the threshold had been met, it places
upon a defendant the necessity of impeaching that proof
in order to avoid a directed verdict on the threshold issue.
When there is no evidence presented to the contrary,
there is nothing for the jury to decide, and the threshold
issue should not be submitted to the jury.
Bolin, however, is distinguishable because the defendant introduced medical
history and testimony that created an issue as to whether the medical expenses
cited by the plaintiff had actually resulted from the collision. The Bolin jury was
asked whether it believed that the medical expenses were a direct result of the
collision, creating an innuendo that they could have been attributable to another
occurrence or underlying condition. The jury answered “no,” that it did not believe
that the medical expenses flowed from the collision. This Court reversed the case
and granted a new trial, reasoning that:
the interrogatory presented to the jury the issue of the
propriety of the size of the charges for “medical expense”
when this factor was not in dispute and the effect of this
submission on the negative answer could not be
Bolin, 580 S.W.2d at 490-491.
In the case before us, the instruction did not cause the jury to question
the propriety or the causation of the medical expenses. Both sides agreed that they
exceeded the threshold amount. Thus, while the instruction was unnecessary, we
cannot agree that it was prejudicial – much less prejudicial enough to warrant a
Mott’s second argument on appeal is that the court erred in denying
her motion in limine prior to trial. She had sought to prevent Hays from presenting
an argument that the lack of cosmetic damage to her vehicle tended to indicate that
she could not have sustained injury. She contends that Hays’s use of enlarged
photos of her car – without the supporting testimony of expert opinion –
constituted a violation of Kentucky Rules of Evidence (KRE) 702 and that,
therefore, the photos should have been excluded from trial. KRE 702 provides as
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the
We are not persuaded that the photographs involved remotely rise to
the level of scientific or technical knowledge encompassed by KRE 702. That
issue was settled long ago in Commonwealth, Department of Highways v. Arnett,
390 S.W.2d 187 (Ky. 1965), in which the Court held that “the admission of
photographs in evidence, so long as they may be said to fairly depict the matter
sought to be portrayed, is too well established to admit of debate now.” In the
present case, the trial court found that the photographs did “fairly depict the matter
sought to be portrayed” and properly exercised its discretion as to whether to admit
them. It is noteworthy that Mott herself introduced the photographs into evidence
but objected to Hays’s argument based on her photographs. The court properly
permitted Hays to extrapolate from Mott’s proffered evidence in order to imply
that the injuries sustained were not grievous. The court properly refrained from
interfering with counsel’s line of reasoning.
The latitude allowed counsel in addressing the jury is
great, and must not be used as a license to inflame or
arouse passion and prejudice; but so long as the argument
is pertinent to the law as given by the court in the
instructions, and consistent with the facts proven and the
reasonable deductions and inferences to be drawn
therefrom, it does not transcend the limits of the law or
warrant our interference.
City of Providence v. Young, 13 S.W.2d 1022 (Ky.App. 1929), citing Johnson v.
Commonwealth, 9 S.W.2d 53.
In reviewing a motion in limine, our inquiry is whether the judge has
abused his discretion. The test for abuse of discretion is whether the judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 999 S.W.2d at 945 (Ky. 1999), citing
Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996). We are satisfied that there
was no abuse of discretion in this case.
We conclude that the trial court did not err in denying both of the
motions that are the subject of this appeal. Accordingly, we affirm their denial by
the Campbell Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Joshua J. Leckrone
Crescent Springs, Kentucky
Jeffrey A. Stepner