Understanding the Law of Damages: What Plaintiff’s Attorneys Must Know

By Travis Holtrey | Dec 8, 2020 | Trial Tips

Article by Travis Holtrey

When handling personal injury cases, especially automobile collision cases involving severe injuries or deaths, one must have a basic understanding of the recoverable damages available. Plaintiff’s counsel must also anticipate defense strategies aimed at diminishing and minimizing the recoverable damages. Attorneys must objectively, honestly, and deliberately acknowledge the “downside” of their case before defense counsel turns them into powerful weapons against their client.

Before an injured person may recover damages in tort from an automobile wreck, he/she must first meet one of the statutory conditions outlined in KRS 304.39-060(2)(b), commonly referred to as the “threshold” requirement.  The economic threshold is at least $1,000.00 in “medical expenses.” The non-economic threshold includes injury or disease, consisting in whole or in part, of one of the following:

  1. Permanent disfigurement (See Smith v. Higgins, 819 S.W.2d 710 (Ky. 1992)for definition of disfigurements – any scar capable of ordinary perception or which produces ongoing personal discomfort);
  2. Fracture to a bone;
  3. Compound, comminuted, displaced, or compressed fracture;
  4. Loss of a body member;
  5. Permanent injury within reasonable medical probability;
  6. Permanent loss of bodily function; and
  7. Death.

Assuming the client meets one of the statutory thresholds mentioned above, then KRS 304.39-060 provides that the injured party may recover damages for “pain, suffering, mental anguish, and inconvenience.”[1]

What Damages Are Recoverable in Personal Injury Cases?

Courts generally divide recoverable damages into two groups: general damages and special damages. Knowing the difference between the damages is vital because of the pleading requirement attached to special damages in CR 9.06.

General Damages

General damages are those “the law presumes from the wrong complained of” and that “naturally and necessarily result therefrom[.]” Moss Jellico Coal Co. v. American Ry. Express Co., 248 S.W. 508 (Ky. App. 1923). See also, University of Louisville v. RAM Engineering & Const., Inc., 199 S.W.3d 746, 748, 212 Ed. Law Rep. 937 (Ky. App. 2005); McCracken & McCall v. Bolton, 304 Ky. 438, 200 S.W.2d 923, 923–924 (Ky. App. 1947). In negligence cases, general damages are those resulting from the act, including past/future pain and suffering and those that are/were “in contemplation of the parties.” U.S. Bond & Mortg. Corp. v. Berry, 249 Ky. 610, 61 S.W.2d 293, 297 (Ky. App. 1933).

Past & Future Pain and Suffering – A Difference in Permanent and Temporary Injuries

As with most areas of law, pain and suffering is not as simple as it seems on the surface and is actually broken up into different categories. Specifically, counsel should understand pain and suffering deals with (1) temporary injuries; (2) per diem injuries; and (3) permanent injuries. The difference between the three mainly deals with limitations in determining the recovery/damages amount as well as a heightened pleading requirement for those designated as special damages.

With Plaintiff’s temporary injuries, the measure of those damages is limited to the pleaded special damages and past pain and suffering. Williams v. Balmut, 298 Ky. 249, 182 S.W.2d 779, 782 (Ky. 1944). Counsel should not gloss over what the Williams‘ Court appeared to establish. Williams implicitly separated future pain and suffering from general damages, which suggests past pain and suffering is in the “general damages” group while future pain and suffering is in the “special damages group.” Williams, 182 S.W.2d at 782. However, this is not the case.

Pain and suffering, both past and future, are considered general damages and counsel can seek both without specifically pleading the damages. Coe v. Adwell, 244 S.W.2d 737, 740 (Ky. 1951) (“In Consolidated Coach Corp’n v. Wright, 231 Ky. 713, 22 S.W.2d 108, it was held that in such instance the damages, other than those specially pleaded, are limited to pain and suffering, past and future.”); Consolidated Coach Corporation v. Wright, 231 Ky. 713, 22 S.W.2d 108, 110 (Ky. App. 1929) (“If the injuries are not permanent, then the damages other than those specially pleaded are limited to pain and suffering, past and future, as was provided in the instruction given.”) (internal parentheticals omitted); Louisville & N.R. Co. v. Stewart, 173 S.W. 757 , 758-59 (Ky. App. 1915) (“The rule is that, where there is substantial evidence showing that there is likelihood that the plaintiff will continue to suffer because of the injury, he is entitled to recover for any pain which it is reasonably certain he will endure after the trial, as well as any endured up to that time, as the result of his injury.”) (internal quotations omitted).

After applying the general and special damages’ definitions, per diem (“per day” or “for each day”) arguments fall within the general damage’s category because counsel is using past/future pain and suffering to determine a value. See Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky. App. 1983); Louisville & N.R. Co. v. Mattingly, 339 S.W.2d 155 (Ky. App. 1960).

For example, in Mattingly, the Court limited the recovery jury instructions to $114,831.00, which consisted of: (1) “[d]emanded for pain, suffering and future loss of earnings”; (2) $14,000.00 “for earnings lost during the 5 1/2 years before the trial”; and (3) $831.00 “for medical expenses.” Mattingly, 339 S.W.2d at 161. During closing argument, Plaintiff’s counsel argued his client should receive $5.00 per day for pain and suffering, multiplied it by 360 days, then multiplied that total by 25 years.  Mattingly, 339 S.W.2d at 161. Defense counsel argued this figure was “plucked out of thin air” to instill impressions on the jury not founded on evidence. Mattingly, 339 S.W.2d at 161.

Unpersuaded, the Mattingly Court held that “counsel may properly argue the amount of damages” in a per diem style because it “is no more speculative to suggest a per diem figure than it is to suggest the total amount.” Mattingly, 339 S.W.2d at 161. Further, the Court added that if an excessive verdict was rendered, “the control lies in the court under CR 59.01(4).” Mattingly, 339 S.W.2d at 161.

Twenty-three years later, in Paducah Area Public Library, the Court of Appeals explicitly upheld Mattinglys decision on per diem damages by stating “[past] pain and suffering may be demonstrated to the jury by a per diem argument of counsel.” Paducah Area Public Library v. Terry, 655 S.W.2d 19, 25 (Ky. App. 1983) (citing Louisville & Nashville Railroad Company v. Mattingly, 339 S.W.2d 155 (Ky. App. 1960)). See also, Southard v. Hancock, 689 S.W.2d 616, 618 (Ky. App. 1985) (“per diem argument with respect to pain and suffering endured by [Plaintiff] up to the time of the trial . . . if supported by the evidence, is permissible in [Kentucky].”).

Knowing per diem damages are available, counsel must understand how to apply the argument style and enlighten jurors of the injury’s full extent—especially for nonelderly clients. Counsel should highlight how often their client experienced pain since the injury. If the client’s pain interfered with their sleep, then 24 hours a day may be used. If the client’s pain interfered with their waking hours, 20 or 16 hours may be used. If the pain only partially affected the client’s day, then 12, 8, or 4 hours may work. With that being said, any number of hours may be applied work given the right set of facts and counsel’s discretion.

Typically, $10.00 an hour is a reasonable rate that makes sense to most juries. Using these variables and the client’s life expectancy, counsel land on a number explaining how much the client will be suffering over his/her life.

The per diem amounts are not insignificant and can be an easy number to explain, which can be seen by the tables below. The first table, Table 1: Per Diem, Per Year, shows the monetary amount a client would earn per day and per year, if he/she were to earn $10.00 for any specific number of hours over the course of a year (365 days).  Tables 2 through 7 display the amount a client suffers over the course of 5, 10, 15, 20, 25, and 30 years. The total amounts in Tables 2 through 7 should be counsel’s starting point for recovery amount.

Although these numbers may seem high, it is guided by a principle of law that it is not about how much a Plaintiff is going to get but about how much was taken away from him/her. Per diem argumentation works because our judicial system does not believe in an eye for an eye justice. Rather, American justice believes in accountability and remedies for the wrongs suffered. When harms and loses are thrust into someone’s life unnaturally, we measure the value of what was taken – fully and justly. Further, counsel must ensure the jury understands this is a “forever verdict,” and the Plaintiff will not get a second chance. There are no updates or reevaluations in 5, 10, 20, or 30 years. The verdict may seem large at first glance, but the total is for forever and cannot be altered or changed.

In cases of permanent injury, a Plaintiff is entitled to recover previous damages and future damages, such as future medical expenses, impairment of earning power, and future pain and suffering. Here, the test is whether there is evidence to indicate a Plaintiff’s pain and suffering are likely to continue to occur. May v. Holzknecht, 320 S.W.3d 123, 128 (Ky. App. 2010). See also American States Ins. v. Audubon Country Club, 650 S.W.2d 252, 254 (Ky.1983).

Moreover, a Plaintiff suffering from a permanent injury is not automatically entitled to a jury instruction allowing damages for permanent injury unless expert medical testimony establishes, with a reasonable degree of medical probability, that the injury is permanent. Rogers v. Sullivan, 410 S.W.2d 624, 628 (Ky. 1966). However, the loss or destruction of a limb or any important bodily organ will establish a finding that the injury is permanent without expert medical testimony. Smith v. Hamm, 235 S.W. 2d 437, 439  (Ky. App. 1950) (“the loss or destruction of any important organ of the body furnishes the basis for finding that the injury is permanent.”).

Further, there is no blanket rule requiring a jury to make an award for future pain and suffering solely because the jury awarded future medical expenses. Spalding v. Shinkle, 774 S.W.2d 465, 467 (Ky. App. 1989).  The good news is when the jury (1) awards “0,” or any other inadequate amount, for future pain and suffering and/or permanent impairment to earn money and (2) the “0” verdict bears no relationship at all to the loss suffered and is not supported by the evidence, then an injured Plaintiff may be entitled to a new trial on the sole issue of damages.  Hazelwood v. Beachamp, 766 S.W.2d 439, 441 (Ky. App. 1989).[2]

Introducing proof concerning mental and physical pain and suffering, Plaintiff’s counsel should investigate the following:

  1. Any eye-witness at the scene;
  2. Investigating officers;
  3. Emergency medical technicians, ambulance personnel, emergency room personnel;
  4. Examine closely hospital and medical records – nurses notes, request for pain medication;
  5. Have doctor graphically describe any surgical procedures;
  6. Physical therapist, treating physicians;
  7. Introduce any physical changes, etc.;
  8. Family and friends; and
  9. Pictures

Although “loss of enjoyment of quality of life” is not an independent element of damage recoverable in Kentucky, evidence as to the effect of the Plaintiff’s injury on his or her lifestyle, is admissible as proof of mental suffering.  For example, the Kentucky Supreme Court rejected “hedonic damages” as a separate recoverable item, but did state it: recognizes that there is measurable value to one’s life other than his or her earning capacity.  However, this value is already recoverable in the recognized category of mental suffering.  There is no need to allow for recoupment of hedonic damages as a separate category of loss.

Adams v. Miller, 908 S.W.2d 112, 116 (Ky. 1995). Therefore, based on the general practice and the latest authority from the Supreme Court, Plaintiffs should not have a problem introducing evidence concerning the effect of the injury on the life of the Plaintiff.  Friends, relatives and co-workers, should be allowed to testify concerning this element of damage.

Special Damages

Special damages are those which “are not to be implied or presumed as a necessary result of the commission of a wrong . . . which nevertheless are the natural and proximate result.” McCracken & McCall v. Bolton, 200 S.W.2d 923 (Ky. 1947). In other words, special damages arise naturally out of the act but are of a type probably unknown to one of the parties. Due to the unknown aspect of special damages, CR 9.06 requires parties to specifically plead these damages, so the opposing party has notice of damages.[3] Generally, special damages include medical expenses, wage loss, and the like. Lee v. Stamper, 300 S.W.2d 251, 253 (Ky. 1957).

When pleading special damages, counsel should be as specific as possible or risk providing defective notice. However, a 1957 panel of the Court of Appeals relaxed the “specifically stated” language of CR 9.06 and has been subsequently cited with approval from the Supreme Court. Lee, 300 S.W.2d at 253. See also, Roberts v. Conley, 626 S.W.2d 634, 639 (Ky. 1981) (“The principal objective of a pleading is to give to the opposing party fair notice of the essential nature of the claim presented and the type of relief to which claimant deems himself entitled.”). Therefore, “[w]hile the amount thereof must necessarily be proved to authorize recovery, itemization in the pleading is not essential.” Lee, 300 S.W.2d at 254. [4]

Even with Lee‘s and Roberts relaxed interpretation of “specifically stated,” Plaintiff’s counsel should plead the special damages within this section as specifically as possible to protect their client’s interests.

Medical Bills from Automobile Wrecks are Presumptively Reasonable

Medical bills may not be denied based on a paper review of the medical records. KRS 304.39-10; 304.39-020(2). In Government Employees Insurance Company v. Sanders, __ S.W.3d __ 2018 WL 5732087 (Ky. 2018), the Plaintiffs were injured in an automobile accident and the bills were submitted to Government Employees Insurance Company (GEICO) for payment under the policy’s basic reparations benefits (BRB). Id. at *1. GEICO later denied coverage and refused to pay for certain medical treatments Plaintiffs already received.

In analyzing Kentucky’s MVRA statutes, the Court asked “[i]f the medical bill submitted is presumed to be reasonable, what is required for GEICO to be able to overcome the presumption?” Id. at *5. The presumption is enough to establish the medical treatment is reasonably needed and the bill is reasonable for what has been provided, as “a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption….” Id. (citing KRE 301). Thus, the legal presumption of reasonably related must be overcome before any unilateral denial of medical bills or expenses can be valid. Id. at *5-*6.

To be Recoverable, Future Medical Expenses Must be Determinable

For a Plaintiff to recover the cost of future medical care the damages must be “determinable” from the evidence. Kentucky & Indiana Terminal Railroad v. Mann, 312 S.W.2d 451 (Ky. 1958). Evidence helpful in determining the costs of future care, includes but is not limited to medical testimony based on reasonable probability that future treatment is required; testimony as to the costs of the future care; and testimony as to reasonableness of that cost.

The foundation for admissibility is established through expert medical testimony of the treating physician; expert medical testimony of a reviewing physician; expert testimony of a life care planner; lay testimony of Plaintiff; and introduction of medical records and costs of all previous services.

Permanent Impairment of Power to Earn Money is Available once a Permanent Injury is Established.

If there is proof of a permanent injury, then the Plaintiff will be entitled to an instruction on the permanent impairment of his power to earn money. Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky. App. 1983) (permanent impairment of power to earn money is a proper element to compensation).

In Gretton v. Duncan, 238 Ky. 554, 38 S.W.2d 448 (1931), the Court determined the jury should not be instructed to return damages for permanent injury but rather “for permanent impairment of her power to earn money.” See also Caton v. McGill, 488 S.W.2d 345 (Ky. App. 1992) (damages for permanent injury are not measured in terms of actual loss of earnings but by the impairment of the power or capacity to earn money). The case further held that the instruction is proper when there is a permanent injury. Gretton, 38 S.W.2d 448.

Generally, no instruction authorizing a recovery for permanent impairment of the power to earn money should be given when no permanent impairment was alleged or proved. However, in an action for personal injuries, evidence of earning power is always admissible; neither allegation nor proof of specific pecuniary loss is indispensable to recovery. Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226, 229 (Ky. 2007) (“the rule set out in [Chesapeake & Ohio Ry. Co. v. Shanks, 86 S.W.2d 128 (Ky. 1935) is] that proof of permanent injury is all that is required to submit a question of permanent impairment of earning power to the jury”). Permanent impairment of earning power is merely the test to be applied by the jury in determining the compensation to be awarded for permanent injury. In short, when a permanent injury is established—whether alleged, proved, or neither—then permanent impairment of power to earn money will follow as a matter of course proceedings. Chesapeake, 88 S.W.2d 318 (Ky. App. 1935).

Put differently, once counsel establishes a permanent injury and requests a jury instruction, the jury must determine whether Plaintiff suffered a permanent impairment of the power to earn money by applying their “common knowledge and experience to the facts and circumstances of the case.” Chesapeake, 88 S.W.2d at 320.

Kentucky Courts consistently follows this approach. For example, in Siler v. Williford, 375 S.W.2d 262 (Ky. 1964), a woman received (a) cuts on her nose and forehead, leaving scars; (b) bruises and cuts on her lower extremities; (c) a fractured jaw bone; and (d) some loss of hearing.  Two months after being injured, she returned to work and began earning more than she earned before the injury. The Court held that she was entitled to an instruction on impairment of her ability to earn money and quoted from previous cases as follows:

In Moore v. Heart, 188 S.W. 861 (Ky. App. 2005), the Court held that when the injury is permanent, failure to show the impairment of one’s earning power is not fatal to a Plaintiff’s recovery.  In Spurlock v. Spurlock, 349 S.W.2d 696 (Ky. App. 1961), it was held that a married woman who sustained permanent injuries might recover therefore without direct proof of any specific pecuniary loss.  Under the circumstances of this case, the instruction was justified, and the damages are not excessive. Siler, 375 S.W.2d at 264.

The main takeaway from the above is that once a permanent injury is established, an instruction on permanent impairment to earnings will be given, provided it is requested. This is true even if the Plaintiff (1) was not working outside the home at the time of the injury; (2) is back at work earning the same or greater wages than before the injury, Siler, 375 S.W.2d 262, supra; or (3) does not intend to return to work, Spurlock v. Spurlock, 349 S.W.2d 696 (Ky. 1961). All of these facts affect the value of your case because the jury will apply common knowledge and common sense in determining the verdict’s amount, but do not act as bars to recovery.

Wage Loss

Lost wages compensate Plaintiffs for time he/she was not at work after suffering an injury. Chesapeake & Ohio Ry. Co. v. Shanks, 86, S.W.2d 128, 130 (Ky. 1935) (Loss of time, with reference to the injured party’s condition and ability earn money in his[/her] business or calling is universally regarded as a proper element of compensation. Often this is chiefly the pecuniary loss where the Plaintiff was prevented from pursuing his accustomed employment or business.”). See also, Smith v. McMillan, 841 S.W.2d 172 (Ky. 1992); Slone v. Caudill, 734 S.W.2d 480 (Ky. App. 1987); Schultz v. Chadwell, 588 S.W.2d 183 (Ky. App. 1977).

Even if a Kentucky Plaintiff did not work before the injury, he or she may be able to recover wage loss damages because a lost opportunity to work can be sufficient. Caton v. McGill, 488 S.W.2d 345 (Ky. App. 1972). Additionally, a Plaintiff may be compensated for the loss of his/her power to work and earn money. The loss is not measured by the actual lost earnings, as implied above, but is measured by the lost future capacity to earn money. Caton, 488 S.W.2d 345 (Ky. 1972).

Lastly, counsel should be aware that the bar establishing lost wages is not hard to reach. In fact, a Plaintiff’s own testimony, without any other documentation or proof, is sufficient for a jury to find in the Plaintiff’s favor. McCormick v. Gullett, 460 S.W.2d 813 (Ky. App. 1970).

Recovery for Increased Likelihood of Future Complications Requires Substantial Evidentiary Support

An injured person may recover for increased likelihood of future complications where there is substantial evidence of probative value to support the claim.  Plaintiffs may also recover for the mental distress related to the increased likelihood of future complications.  Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984). Graviss, supra, was approved and explained in Capital Holding Corp v. Bailey, 873 S.W.2d 187 (Ky. 1994), which held that when a claim for increased likelihood of future complications accompanying mental suffering is made, there must be some tangible injury or immediate harm present. The following Jury Instruction comes from Palmore’s Kentucky Instruction to Juries, 5th Edition, § 39.03.

If you find for Plaintiff and award him damages under instruction for pain and suffering, for permanent impairment of his power to earn money, and for hospital and medical services, and if you are satisfied from the evidence that there is a reasonable likelihood that he may suffer future harm as a direct result of his injuries, you will include in your award for each of those items of damages a reasonable enhancement for the increased risk of such future harm.  If you award enhanced damages for an increased risk of future harm, the amount of such enhancement should reflect your assessment of the percentage by which Plaintiff’s risk of such future harm is greater than it was before the accident.

Damages for Loss of Spousal Consortium – 1 Year SOL

KRS 411.145 allows either a husband or wife to recover damages for the loss of services, assistance, aid, society, companionship, and conjugal relationship as a result of injuries sustained by their spouse.  This is an independent action of the spouse, but BEWARE: a 1-year Statute of Limitations applies.  Floyd v. Gray, 657 S.W.2d 936, 939 (Ky. 1983).

Parent’s Damages for Child’s Injuries

KRS 405.010 allows a parent to recover the value of lost services, expected earnings, and medical expenses for the child. To be safe, efficient, and proper, counsel should name the parent(s) individually and claim these damages in their own name(s).

Generally, Kentucky parents do not have any explicit rights to recover for loss of society and companionship of an injured child. However, many states allow recovery for this type of damage. Due to no Kentucky authority preventing or prohibiting counsel from recovering this type of damage, claim for loss of companionship, society, and affection should always be claimed when a parent’s child has been severely injured.

A parent may recover value of care for attendance rendered by parent to child as a result of injury. However, parents cannot recover for wages lost while taking care of child. Sedlock v. Trosper, 211 S.W.2d 147 (Ky. App. 1948), overruled on other grounds.

What Damages Are Recoverable in Wrongful Death Actions?

The right to sue and recover damages for the death of one killed by the negligence of another has long been recognized in the Commonwealth. Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 672 (Ky. 1967) (wrongful death action’s purpose is “to compensate survivors for loss occasioned by the death and not to recover for injuries of the decedent”). The authority to recover damages for wrongful death is not only found in the wrongful death statute, KRS 411.130, but is a constitutionally protected right guaranteed by section 241 of the Kentucky Constitution.[5] However, damages recoverable in a wrongful death action are those sums which will fairly and reasonably compensate the decedent’s estate for the destruction of the decedent’s earning power.  The family of the deceased is not allowed a separate item of damages for the grief and affliction which the family has suffered because of the family member’s death.

Generally, the courts are very liberal in admitting evidence concerning the destruction of the decedent’s earning power. Almost every aspect of the decedent’s life is relevant to the decedent’s success in life, which reflects positively or negatively on his/her earning power. Some examples include the following:

  1. Age – work life expectancy;
  2. Education;
  3. Other specialized training;
  4. Work history – beginning from the paper route to corporate executive, length of employment, job history, job description, attendance, relationship with fellow employees/supervisors, advancements in job, willingness to work;
  5. Lifestyle;
  6. Family relationships;
  7. Religious affiliations; and
  8. Hobbies.

Of course, when dealing with the wrongful death of a minor, the sky may be the limit.  Much depends on the family educational and socio-economic background if the child has not lived long enough to establish any predictable expectations as a result of academics, athletics, aptitude, or achievements.  Most juries have difficulty in awarding damages for destruction of a child’s future earnings to the surviving parents for a multitude of reasons. Juries are also not compelled to accept the evidence submitted by an economic expert’s testimony concerning the destruction of the power to earn money. Thus, if the jury awards “0” for this element of damage, then the Plaintiff could be entitled to a new trial on the issue of damages, which is not necessarily the case for permanent impairment to earn money cases. Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667 (Ky. 1992).

As an aside, the Kentucky Practice Series Probate Practice and Procedure Treatise states, albeit briefly, that “Same-sex spouses and their children are precluded from recovering loss of consortium damages in civil ligitgation [sic] following a wrongful death. However, this does not apply to same-sex couples married in other jurisdictions.” Wrongful Death and Loss of Consortium, 2 Ky. Prac. Prob. Prac. & Proc, § 1397. However, this should no longer be the case as the Bourke v. Beshear decision was reversed by Deboer v. Snyder,[6] which was reversed by Obergefell, and should otherwise be reinstated. Thus, married same-sex individuals receive the same protections and rights married heterosexual individuals are afforded. Bourke v. Beshear, 996 F. Supp. 2d 542, 546 (W.D. Ky.), rev’d sub nom. by DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. by Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Post Death Loss of Consortium

The History of Loss of Consortium

Prior to 1970, Kentucky common law recognized only a husband’s right to recover for loss of consortium with his wife in the time period leading up to her death. However, Kentucky’s highest Court extended this right to wives in Kotsiris v. Ling, 451 S.W.2d 411, 412 (Ky. 1970), stating that “considerations militating in favor of recognition of the wife’s cause of action outweigh the considerations on which the doctrine of stare decisis rests,” and holding that “a wife has a cause of action for loss of consortium of her husband resulting from an injury to the husband due to the negligent act of another.”

A few months later, the Kentucky Legislature enacted KRS 411.145, which provides:

(1) As used in this section “consortium” means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife, or wife and husband.

(2) Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.

The language of the statute does not indicate whether a claim for spousal consortium is limited to the loss up until the spouse’s death or extends beyond it. Thus, the statute did not clarify whether the legislature intended to codify the common law loss of spousal consortium action, which ended at death or if the legislature intended the cause of action to extend beyond death, as do parent-child consortium claims.

Despite multiple attempts to amend KRS 411.145 to allow spouses to bring loss of consortium claims in wrongful death actions, those attempts were never successful. In January 2008, a new version of a prior spousal consortium bill was introduced in the 2008 Regular Session of the General Assembly. The bill sought to amend KRS 411.145 to include actions by the surviving spouse, provided that the consortium claim was brought as part of the wrongful death action and not as a separate lawsuit. However, House Bill 297 did not move beyond committee.

The Supreme Court’s Martin v. Ohio County Hospital Corporation Decision Allows Spousal Loss of Consortium Damages to Continue After Their Spouse’s Death.

On October 1, 2009, in an opinion written by Justice Noble, the Kentucky Supreme Court noted “the issue of whether a spouse may claim loss of consortium after the death of her spouse turns on what the silence of the legislature on that issue in KRS 411.145 means.” Martin v. Ohio County Hospital Corporation, 295 S.W.3d 104, 107 (Ky. 2009). At common law, spousal consortium claims ended at death. However, with the enactment of KRS 411.145, the legislature made loss of consortium a statutory action belonging specifically to the spouse and not to the estate of the decedent, but remained silent as to whether such a claim is limited to the loss up until the spouse’s death or extends beyond it.

The Supreme Court concluded loss of consortium damages under KRS 411.145 do not cease at death by (1) considering the language of the statute, (2) recognizing that the majority of states allow, via statute or case law, spousal consortium damages to continue after death; and (3) rejecting the Appellee’s contention that because by legal definition, marriage is a relationship existing “in law for life,” any recovery related to the marriage relationship cannot continue after death.

Turning first to the language of KRS 411.145, the Court noted the statute allows a husband or wife to recover damages for “services, assistance, aid, society, companionship, and conjugal relationship,” which are elements that “describe the personal relationship, mental and physical, between spouses.” Martin, 295 S.W.3d at 107. The Court reasoned that the “pain and deprivation” coming from a loss of those elements does not disappear the day a spouse dies and that those losses are not worthless after death. Martin, 295 S.W.3d at 109-110.

In addition, the Court noted that KRS 411.145 is intended to be compensatory, providing that a third person must compensate the spouse for a loss resulting from a “negligent and wrongful act,” and “compensation cannot be had if the damages claimed are required to terminate at death.” Martin, 295 S.W.3d at 109. Allowing a loss of consortium claim only if the victim survives (1) created a “class of plaintiffs whose cause of action depended on the vagaries of fate, rather than the orderly operation of law,” and (2) created a perverse incentive for tortfeasors “to kill victims instead of leaving them disabled, as only by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of consortium.” Martin, 295 S.W.3d at 109-110.

The Supreme Court highlighted Kentucky being in the minority regarding spousal consortium. Martin, 295 S.W.3d at 110. Specifically, at the time the Martin decision was decided, twenty-six other states had some form of loss of spousal consortium set forth in a statute, and all of those states specifically recognized those damages continued after death. Martin, 295 S.W.3d at 110. Fifteen other states recognized through case law that loss of consortium damages continue past death, and only seven stopped such damages at death. Martin, 295 S.W.3d at 110-11. Thus, thirty-four (34) states have a spousal loss of consortium claim and allowed damages to continue after the spouse’s death. Martin, 295 S.W.3d at 110-11.

The Martin Court reasoned that because the legislature decided to enact a statute creating a cause of action for loss of spousal consortium rather than leaving the question to the common law, it must have wished to depart from the common law approach. Martin, 295 S.W.3d at 111. The legislature deliberately chose not to include the limiting language of “until death” and instead used the broad compensatory language “may recover damages.” Martin, 295 S.W.3d at 111. If the legislature had merely intended to adopt the common law approach, it need not have acted at all. Martin, 295 S.W.3d at 111. Thus, the Court declined to provide a missing term by limiting recovery only up to the time of death. Martin, 295 S.W.3d at 115.

Finally, the Martin Court rejected the Appellee’s contention that because the statutory definition of marriage in KRS 402.055 is a relationship existing “in law for life,” recovery for loss of spousal consortium cannot continue after death as the legal marriage relationship ends at death. Martin, 295 S.W.3d at 111. The Court stated, “a loss of consortium claim is grounded on compensation for a third party’s wrongdoing which intervenes in the marital relationship so as to deny spousal consortium.” Martin, 295 S.W.3d at 111. The claim makes a third party liable for wrongfully depriving a spouse of the marital relationship that could have continued but for that party’s wrongdoing. This loss is “definable and measurable,” and a surviving spouse has the right to be compensated for a relationship wrongfully taken away. Martin, 295 S.W.3d at 111.

In reversing the Court of Appeals, Martin concluded the legislature did not intend to devalue the spousal relationship by “putting an arbitrary limit on the duration of what can be profound loss.” Martin, 295 S.W.3d at 111. Ultimately, the Court held in favor of the bereaved spouses’ rights to have this loss evaluated by a jury and allowed post-death loss of consortium recovery.

A Parent’s Claim for Wrongful Death of a Minor—Loss of Affection and Companionship

In addition to the recovery for destruction of power to earn money, KRS 411.135 allows the surviving parents of a child to recover for the “loss of affection and companionship,” the parent would have enjoyed with the child during the child’s minority. See Cummins v. Cox, 799 S.W.2d 5 (Ky. 1990). Although it is clear a child’s minority ends when they become part of the majority, the beginning of the time period is less clear because in “theory,” minority begins in the whom when the fetus can live outside of the female body as well as within it, which at times can be hard to determine and agree on. Mitchell v. Couch, 285 S.W.2d 901, 905 (Ky. 1955). See footnote seven comment on page 26 regarding Baxter v. AHS Samaritan Hosp., 328 S.W.3d 687 (Ky. App. 2010).

This element of damages is personal to the parent and should be brought in the individual name of the parent or parents. Only the appointed personal representative of the minor’s estate may bring the wrongful death action for the damages for destruction of power to earn money authorized under the general wrongful death statute.

Additionally, the No-Fault carrier may argue that the parents are not entitled to “Survivor’s replacement services loss.” The cases of Couty v. Ky. Farm Bureau Mutual Insurance Co., 608 S.W.2d 370 (Ky. 1981) and Ky. Farm Bureau Mutual Insurance Co. v. McQueen, Ky. App., 700 S.W.2d 73 (1985), support recovery of this item for the parents, even parents without proof of out-of-pocket expenses.

In today’s society, the minor’s parents may be divorced or not married. An issue of who is entitled to these damages arises more often in these circumstances because when the child may not live with both parents or either parent. In these cases, especially when limited liability coverage is available, split parents often end up adverse to each other during settlement negotiations. Counsel should be aware of this area of potential conflict and choose their position(s) carefully.

Wrongful Death of a Minor’s Parent—Loss of Parental Consortium

For many years, Kentucky jurisprudence did not allow children to recover for the loss of affection, companionship, and guidance for the wrongful death of a parent. Adams v. Miller, 908 S.W.2d 112, 116 (Ky. 1995), abrogated by Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997). Thankfully, Kentucky now allows recovery for children suffering one of the greatest loses imaginable: the loss of a parent. Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997), as modified on denial of reh’g (October 2, 1997) See also, Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 780 (Ky. App. 2000); Charash v. Johnson, 43 S.W.3d 274, 278-79 (2000).

However, there is a limiting rule that only allows recovery for children that are minors for this claim. Put differently, there is no loss of parental consortium for an adult child. Clements v. Moore, 55 S.W.3d 838 (Ky. App. 2001), disc. rev. denied.  See also, Smith v. Vilvarajah, M.D., 57 S.W.3d 839 (Ky. App. 2001). A “minor” includes a viable fetus. Woolum v. Hillman, 329 S.W.3d 283 (Ky. 2010); Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955); City of Louisville v. Stuckenborg, 438 S.W.2d 94 (Ky. 1968); Rice v. Rizk, 453 S.W.2d 732 (Ky. 1970). See also, Southeastern Kentucky Baptist Hospital v. Gaylor, 756 S.W.2d 467 (Ky. 1988). A “viable fetus” means the “child has reached such a statement of development that it can presently live outside the female body as well as within it.” Mitchell, 285 S.W.2d at 905.[7] Thus, a child may recover from loss of parental consortium from the day they become a viable fetus up to the day they reach majority.

Kentucky’s loss of parental consortium claim was established in 1997 after four children lost their mother during the birth of her fourth child. The Supreme Court highlighted the Commonwealth’s “legislature has made it the express public policy of the Commonwealth to protect and care for children in a nurturing home.” Giuliani, 951 S.W.2d at 319 (citing KRS 600.010). Further, it is a “natural development of the common law to recognize the need for a remedy for those children who lose the love and affection of their parents due to the negligence of another.” Id.

In overruling Adams v. Miller, the Giuliani Supreme Court found that “Kentucky recognizes the claim of minor children for the loss of a parental consortium[,]” which is a claim arising “from a recognition of the common law as distinguished from statutory law.” Id. at 323. The proof of loss and the necessary proof of monetary loss resulting therefrom are factors for the trier of fact to determine. Id.

In 2000, the Kentucky Court of Appeals reaffirmed Giuliani in two separate but different cases: Lambert, supra, and Charash v. Johnson, 43 S.W.3d 274 (Ky. App. 2000).[8] In Charash, a father of two minor children died in the care of University of Kentucky Medical Center. A jury rendered a verdict against the U.K. Medical Center doctors and medical staff. On appeal, the Court of Appeals reasoned the “claim of loss of parental consortium is a reciprocal of the claim of the parents for loss of a child’s consortium which was recognized in KRS 411.135.” Charash, 43 S.W.3d at 279 (internal citations and quotations omitted). In response, the Court held the loss of parental consortium does not end at a parent’s death. Id. at 279.

With the loss of parental consortium claim established and reaffirmed, it is important to acknowledge the strict limitation Kentucky courts read into Giulianis holding: the loss of parental consortium claim is only available when there is an action for the wrongful death of a parent, not when a parent suffers a severe injury. Lambert, 37 S.W.3d at 779-780.

Specifically, in Lambert, a tenant and his guest were killed in an electrical accident. Both estates and another injured guest (Marshall), who was injured in the accident and survived, brought negligence actions against the landlord, landlord’s parent and sister companies, and electric utility owning the power lines. Lambert, 37 S.W.3d at 780. The children of all parties were joined on claims relating to their loss of parental consortium. Id. at 774. The estate children settled their claims prior to trial, so the only loss of parental consortium claim(s) remaining were Marshall’s children. Id.

Ultimately, the Lambert Court found the Marshall children were unable to recover based on their loss of parental consortium claim(s) because these claims are only available in wrongful death cases. In relevant part, the Court of Appeals summarized: based upon the context of Giuliani, its language, and the absence of a direct holding that the loss of parental consortium is available beyond wrongful death cases, Giuliani, is best read as providing a cause of action to a child only in those cases where there is likewise an action for the wrongful death of the parent.

Id. (internal citations omitted). Thus, even when a parent is severely injured, Kentucky courts will likely push back against loss of parental consortium claims.

Aside from the limited reading courts give Giuliani, counsel also needs to be practically aware of how this claim is processed. Specifically, a minor’s claim “should be brought by [the] minor’s guardian or committee, but if there is none . . . [a] next friend may bring the action.” CR 17.03(1).[9] In short, there is only a claim for a minor child and no such claim for an adult child. Clements v. Moore, 55 S.W.3d 838 (Ky. App. 2001), disc. rev. denied.  See also, Smith v. Vilvarajah, M.D., 57 S.W.3d 839 (Ky. App. 2001). As discussed in Section B, A Parent’s Claim for Wrongful Death of a Minor – Loss of Affection and Companionship, a minor includes a viable fetus that can live in or outside the mother’s body. Woolum v. Hillman, 329 S.W.3d 283 (Ky. 2010); Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955); City of Louisville v. Stuckenborg, 438 S.W.2d 94 (Ky. 1968); Rice v. Rizk, 453 S.W.2d 732 (Ky. 1970). See also, Southeastern Kentucky Baptist Hospital v. Gaylor, 756 S.W.2d 467 (Ky. 1988).

Lastly, due to the minor child’s claim being derivative of their parent’s death, the claim in some areas will share the limits as one claim. For example, in applicable insurance policy conflicts, the child’s claim and the parent’s Estate’s claim would share the “each person coverage limits” and not the “each accident” limits. Daley v. Reed, 87 S.W.3d 247 (Ky. 2002).

What Are Typical Arguments Used to Diminish Recovery in Car Wreck Cases?

Generally, defense counsel will try to diminish and reduce Plaintiff’s requested relief any way they can. In this section, we provide common defenses used by the opposing party(ies); how to fight against them; and certain defenses that are socially beneficial to the opposing party that are out of counsel’s control.

Failure to Wear a Seatbelt

Pursuant to the Supreme Court decision in Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987), a defendant is only allowed to introduce the failure of a plaintiff to wear a seat belt is where the Defendant introduces relevant and competent evidence that the failure of the Plaintiff to wear the seat belt substantially enhanced or aggravated the Plaintiff’s injury. Fresenius Medical Care Holdings, Inc. v. Mitchell, 507 S.W.3d 15 (Ky. App. 2016); Tetrick v. Frashure, 119 S.W.3d 89 (Ky. App. 2003) (“there is no statutory duty requiring a passenger in a vehicle to wear a seat belt”); Geyer v. Mankin, 984 S.W.2d 104, 107 (Ky. App. 1998) (“if there is relevant and competent evidence that the plaintiff was contributorily at fault by failing to wear an available seatbelt and that such fault was a substantial factor in contributing to or enhancing the plaintiff’s injuries, then the issue of the plaintiff’s fault is submitted to the jury for determination”).

Put differently, before a defendant is allowed to introduce the seat belt defense as part of a person’s general duty to exercise ordinary care, the Defendant must introduce competent and relevant evidence that the failure was a substantial factor contributing to cause or enhance the Plaintiff’s injuries. Further, the Wemyss Supreme Court stated the trial court must first determine whether or not a witness is qualified by sufficient training, special knowledge or skill, to testify on the subject.

Wemyss was decided before the enactment of our current seat belt law which imposes a duty on the driver of an automobile to wear an available seat belt. See, Tetrick v. Frashure, 191 S.W.3d 89, 93 (Ky. App. 2003) (KRS 189.125(6) “does not impose a statutory duty to wear a seat belt on a passenger in a vehicle”). Defense counsel will probably argue for a specific instruction. However, to be successful, defendants, in a passenger claims, must present proof as to the causal relationship of the injury and the failure to wear the seat belt before a specific instruction may be allowed. Id. (when there is no statutory duty, proper instruction will not specifically refer to a seat belt defense, but may state the general duty to exercise ordinary care for one’s safety).

For example, in Fresenius, a passenger suffered injuries during a wreck. Fresenius Medical Care Holdings, Inc. v. Mitchell, 507 S.W.3d 15, 20-21 (Ky. App. 2016). Evidence of whether the Plaintiff was wearing her seatbelt was inconsistent, including whether the seatbelt would have mitigated her injuries. Id. Defense argued KRS 342.165(1) was violated because of her violation of KRS 189.125(6). However, KRS 189.125(6) does not impose a duty on passengers to wear seatbelts; it merely imposes a duty upon drivers to do so. Id. (citing Tetrick, 119 S.W.3d at 93). Thus, in similar cases, a jury should only be instructed with the general principles of comparative fault.  Id.  For further assistance, consider Palmore’s Kentucky Instruction to Juries, § 39.04 and § 39.05.

Payment(s) From Outside Sources Should Reduce Plaintiff’s Verdict

The collateral source statute allowing the admission of collateral source payments into evidence in the trial of a personal injury action is constitutionally defective. O’Bryan v. Hedgespath, Ky., 892 S.W.2d 571 (1995). It appears from O’Bryan that the entire statute, including the notice requirements, etc., is no longer applicable when filing suit for personal injury.

The collateral source rule has deep roots in Kentucky. See, Louisville & N.R. Co. v. Carothers, 65 S.W. 833, 834 (Ky. 1901); McFarland v. Bruening, 185 S.W.2d 247, 249 (Ky. 1945); Barr v. Searcy, 133 S.W.2d 714, 715 (Ky. 1939). Specifically, the collateral source rule provides that benefits received by an injured party for her injuries from a source wholly independent of, and collateral to, the tortfeasor will not be deducted from or diminish the damages otherwise recoverable from the tortfeasor. Schwartz v. Hasty, 175 S.W.3d 621, 626 (Ky. App. 2005).

In Taylor v. Jennison, 335 S.W.2d 902, 903 (Ky. 1960), the Kentucky Supreme Court stated, “the general rule recognized in other jurisdictions is 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 (to whose procurement the wrongdoer did not contribute). We are convinced this rule is sound, particularly since there is no logical or legal reason why a wrongdoer should receive the benefit of insurance obtained by the injured party for his own protection. It is a collateral contractual arrangement which has no bearing upon the extent of liability of the wrongdoer.”

Schwartz, 175 S.W.3d at 626. There are various justifications to support the collateral source rule. Id. First, the tortfeasor should not be relieved of payment for damages because the injured party had the foresight to obtain insurance. Id. at 626 (citing Taylor, 335 S.W.2d at 903; O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995)). Second, as between the injured party and the tortfeasor, any so-called windfall by allowing a double recovery should accrue to the less culpable injured party rather than relieving the tortfeasor of full responsibility for her wrongdoing. Id. at 626 (citing Johnson v. Beane, 541 Pa. 449, 664 A.2d 96, 100 (1995); Bozeman v. State, 879 So.2d 692, 703 (La. 2004); 22 AM. JUR. 2D Damages § 392 (2003)). Third, unless the tortfeasor is required to pay the full extent of the damages caused, the deterrent purposes of tort liability will be undermined. Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 683 (Ky. 2005); see also, Schwartz, 175 S.W.3d at 626 (citing Restatement (Second) of Torts § 901(c) (1979)); Ellsworth v. Schelbrock, 235 Wis. 2d 678, 611 N.W.2d 764, 767 (2000)).

Defense counsel may be inclined to (a) request information regarding a plaintiff’s medical lien and (b) to limit a Plaintiff’s medical expense proof to what the Plaintiff actually paid versus the amount he/she was billed. However, this goes against well-established Kentucky law. See, Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676 (Ky. 2005).

In 2005, the Kentucky Supreme Court, in addressing a medical negligence action where the Plaintiff’s arm was injured, confirmed the Schwartz decision by holding the collateral source rule applies to health insurance payments, including any windfall for the injured party. Baptist Healthcare, 177 S.W.3d at 678-79, 683 (citing O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky. 1995)). The Baptist Healthcare jury awarded Plaintiff a total award of $154,000 and reduced it to $100,100 because of comparative negligence. Id. at 679. The Defendant appealed the verdict because “the trial court should have granted a directed verdict on the issue of Ms. Miller’s medical expenses.” Id. at 682.

Specifically, the Baptist Healthcare Defendant sought “to limit [Plaintiff’s] recovery to the amount actually paid or the amount actually collectable as a matter of law.” Id. The Supreme Court of Kentucky completely rejected this limitation “hold[ing] that evidence of collateral source payments or contractual allowances was properly withheld from the jury and her award of medical expenses was proper.” Baptist Healthcare, 177 S.W.3d at 683.

The Kentucky Supreme Court reasoned it was “improper to reduce a plaintiff’s damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor.” Baptist Healthcare, 177 S.W.3d at 682. Ultimately, our Supreme Court found the jury’s award of $34,000 for medical expenses, reduced to $22,100 by a 35 percent fault apportionment, was proper even though the Plaintiff’s health insurance only paid $3,356.38. Id. Therefore, the collateral source rule makes it improper to (1) present any evidence of actual payments to the jury and/or (2) reduce the injured party’s damages by payments for medical treatment under a health insurance policy if the premiums were paid by anyone other than the tortfeasor. Id. at 682-83.

Thus, Kentucky’s case law clearly requires the full amount of medical expenses to be presented to the jury and the collateral source rule provides an exception to the double recovery rule. Baptist Healthcare, 177 S.W.3d at 689; Schwartz, 175 S.W.3d at 625; Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 918 (Ky. 1998); Taylor, 335 S.W.2d at 903.

Pre-Existing Injury(ies)

It is elementary that the tortfeasor takes the Plaintiff as he finds him and is not entitled to a reduction in damages because of the Plaintiff’s pre-existing frail condition.  Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987); Drury v. Spalding, 812 S.W.2d 713 (Ky. 1991). However, the Plaintiff must still present proof that the pre-existing problem was aroused or aggravated by the collision in question. Defense counsel will attempt to minimize the impact of the Plaintiff’s current condition by emphasizing the severity of the pre-existing condition.  The “before and after” witnesses used in injury cases without the issue of pre-existing condition become even more important in these cases.  Any and all medical distinctions between the pre-existing injury and current injury should be explored.  If the same doctor has treated both conditions, his opinions and testimony can make or break the Plaintiff’s case.

A helpful jury instruction for this subject can be found in Palmore’s Kentucky Instructions to Juries, 5th Edition, § 39.11, which states: If you determine that the Plaintiff is entitled to recover damages for his injuries, your award shall include compensation for losses attributable or related to his pre-existing physical condition, but only if and to the extent that such pre-existing condition was aroused or aggravated by the accident in question.

General Arguments Playing on Society’s General Prejudices

One would be naïve if they did not at least recognize society’s prejudices against certain individuals and groups of individuals when evaluating the value of a personal injury automobile case.  Some of these prejudices include the following:

  • Elderly;
  • Socio-economic standing;
  • The uneducated;
  • Some minority groups;
  • The general appearance of the Plaintiff and their family;
  • Mentally disabled; and
  • Lack of employment history.

Voir Dire: A Tool for Increased Recovery

For counsel taking a personal injury case to trial, revealing potential jurors’ attitudes, biases, and opinions on giving large verdicts through the jury selection process is vital for their client’s cause. Because Insko v. Cummins, 423 S.W.2d 261 (Ky. App. 1968), established a wide latitude and discretion for questioning jurors in civil voir dire proceedings, counsel can ask questions regarding verdicts that award large amounts of money. These questions may elicit answers that could place jurors in line to be removed for cause and protect counsel’s peremptory strikes. Temperly v. Sarrington’s Admr., 293 S.W.2d 863 (Ky. 1956) (counsel may ask whether any juror has problems awarding substantial damages). Specifically, the scope of examination should encompass any question designed to disclose bias or prejudice against any person or issue on trial. Id.

The following questions are examples of how counsel may be able to probe, uncover, and highlight juror bias:

  • We are here for justice, which can only be awarded in terms of money. Does this surprise anyone?
  • Does anyone know what a frivolous lawsuit is or what one looks like?
    1. Who feels there are too many lawsuits?
    2. Does anyone feel it is wrong to file a lawsuit for a personal injury?
    3. Does anyone consider asking for money to recover from an injury to be frivolous?
    4. If a lawsuit is frivolous, does anyone believe the Plaintiff should receive anything?
  • What about frivolous defenses?
    1. If a defense is frivolous, does anyone disagree that the person asking for money should get what they are requesting (assuming it is reasonable)?
  • Have you heard of or read about a person getting a large amount of money for an injury? Did you think to yourself, “That is too much money!”?
    1. How much was it?
    2. Do you believe sometimes an injured person may not get enough money? If so, how/when might that happen?
  • Would anyone have a problem awarding money in this case if the evidence supports it?
    1. Is there any amount of money you could not justify awarding? Is there a cap to what you would be comfortable with awarding?
    2. Should verdicts have limitations to keep jurors in check and prohibit large verdicts?
  • Does anyone feel jury verdicts in injury cases have a bad effect on the rest of us?
    1. If so, why, what are the bad effects?
    2. Do any of these “bad effects” affect you serving on this jury?
  • Would you agree that a jury does two things: the jury (1) determines from the facts who is at fault and (2) the jury determines the dollar amount the Plaintiff is entitled to recover.
    1. Does anyone disagree with these two things?
    2. In determining fault, if the evidence proves the Defendant was at fault, could you find him/her negligent or at fault for injury the Plaintiff?
    3. In determining the dollar amount the Plaintiff is entitled to, if the evidence supports a specific dollar amount would you award it?
  • We will show you Plaintiff’s medical bills, if you decide Defendant’s carelessness/negligence caused Plaintiff’s injuries, would you have a problem including money in your verdict for those medical bills? What about money in your verdict for future medical bills?
  • We will show you Plaintiff’s past wages and lost wages, if you decide Defendant’s carelessness/negligence caused Plaintiff’s injuries, would you have a problem including money in your verdict for those past wages and lost wages? What about money in your verdict for future wages?
  • We will also show you how these injuries have disrupted and inconvenienced Plaintiff’s life. Although we do not have anything stating the prices to these inconveniences, painful experiences, and uncomfortable moments, are you able to award Plaintiff money for the loss of enjoyment of life, increased likelihood of future complications, pain and suffering, and mental anguish—provided you find Defendant was negligent or at fault?

What Do I Do If My Client’s Verdict is Inadequate?

If counsel believes the returned verdict is inadequate, he/she should file or move for a Motion for Judgment Notwithstanding the Verdict and/or a Motion for a New Trial. Under CR 59.01(d), the Trial Judge must decide 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.” A jury’s failure to award damages will not be set aside unless the amount of the award is “so disproportionate as to strike the mind . . . as result[ing] from passion, prejudice, corruption or mistake on the part of the jury.” Davis v. Lucas, 423 S.W.2d 411 (Ky. 1968); Ford Motor Co. v. Zipper, 502 S.W.2d 74 (Ky. 1973) (a zero verdict is not always improper, but it is improper for a jury to return a zero verdict where a compensable injury exists).

Representing clients injured and/or killed in automobile accident litigation is both challenging and rewarding.  There are volumes of material and resources which will assist a lawyer in properly preparing their case.  An excellent reference book for finding general answers and/or direction on legal issues in automobile accident litigation is Robert D. Monfort, Kentucky Motor Vehicle Insurance Law 2017 18 Ed.

[1] What is “inconvenience” and why is it not included in the instruction generally used for recovery for “mental and physical suffering”?

[2] What to do when Plaintiff’s counsel receives an inadequate verdict is briefly discussed in Section V, What do I do if My client’s Verdict is Inadequate?

[3] CR 9.06 reads as follows: When items of special damage are claimed, they shall be specifically stated.

[4] There was a dissent to Lee written by Judge Sims who wanted to follow stare decisis and would have required the amounts of special damages to be pleaded. 300 S.W.2d at 255 (Sims, J., dissenting).

[5] It is highly recommended to have a copy of Kentucky Wrongful Death Actions, R. Eades, 2017-18 Edition.

[6] DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. by Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)

[7] Reaching “viability” may be difficult in certain situations. For example, the Court of Appeals affirmed a trial court’s dismissal of a wrongful death claim on the grounds that the child was not a viable fetus even after the child was delivered because the child was placed on life support and died within 12 days. Baxter v. AHS Samaritan Hosp., 328 S.W.3d 687 (Ky. App. 2010). Under this reasoning, it suggests the Court reads the viable fetus definition narrowly.

[8] Although discussed in reverse chronological order for analysis reasons, Lambert (February 2000) did come before Charash (April 2000).

[9] If you are filing an action under a “next friend” then see KRS § 387.300 for the requirements to bring suit as such.