130 F.3d 219 (6th Cir. 1997), 95-6680, Adam v. J.B. Hunt Transport, Inc.

Docket Nº:95-6680, 96-5003.
Citation:130 F.3d 219
Party Name:John E. ADAM, Individually and as Executor of the Estate of Ann Adam, and Christopher Meyer, Guardian of the Estate of Rachel E. Adam, Plaintiffs-Appellants/Cross-Appellees, v. J.B. HUNT TRANSPORT, INC., and Larry F. Holbrooks, Defendants-Appellees, A.G. Carriers, Inc., and William H. Wood, Defendants-Appellees/Cross-Appellants.
Case Date:November 10, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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130 F.3d 219 (6th Cir. 1997)

John E. ADAM, Individually and as Executor of the Estate of

Ann Adam, and Christopher Meyer, Guardian of the

Estate of Rachel E. Adam,



J.B. HUNT TRANSPORT, INC., and Larry F. Holbrooks,


A.G. Carriers, Inc., and William H. Wood,


Nos. 95-6680, 96-5003.

United States Court of Appeals, Sixth Circuit

November 10, 1997

Argued Feb. 7, 1997.

Rehearing Denied Jan. 7, 1998.

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[Copyrighted Material Omitted]

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Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, KY, Patrick H. Boggs (argued and briefed), Joseph Anthony Gerling (briefed), Lane, Alton & Horst, Columbus, OH, for Plaintiffs-Appellants/Cross-Appellees.

Benjamin L. Kessinger, Jr. (argued and briefed), Lee Kessinger, III (briefed), Stites & Harbison, Lexington, KY, Barry M. Miller (argued and briefed), Michael E. Liska (briefed), Fowler, Measle & Bell, Lexington, KY, for Defendants-Appellees/Cross-Appellants.

Before: KENNEDY, NELSON, and VAN GRAAFEILAND, [*] Circuit Judges.


DAVID A. NELSON, Circuit Judge.

This is a diversity case that arose out of a multi-vehicle accident on an interstate highway in Lexington, Kentucky. The lawsuit was filed by or on behalf of John Adam, who suffered multiple head injuries; the estate of his wife, Ann Adam, who was killed; and the couple's six-year-old daughter, Rachel Adam, who sustained damages which a jury was to assess at $30,000.

Mr. Adam was hospitalized for ten days as a result of his injuries, and he spent the first five days of his hospitalization in an intensive care unit. Not until approximately three months had passed did he return to work. The jury nonetheless awarded Mr. Adam zero dollars as the "sum of money that will fairly and reasonably compensate him for the injuries which he has sustained...."

The plaintiffs moved for a new trial, contending, among other things, that the verdict as to Mr. Adam's damages was against the manifest weight of the evidence. The trial court denied the motion, and the plaintiffs have appealed from a judgment entered on the verdict. Certain of the defendants have cross-appealed.

We conclude that the trial court abused its discretion in declining to grant Mr. Adam a new trial on the issue of damages. Rejecting all other assignments of error--including one that pertains to the apportionment of damages against third-party defendants dismissed from the lawsuit prior to trial--we shall affirm the judgment in part and reverse it in part.


Mr. and Mrs. Adam and their daughter, who had been on vacation, were returning to

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their home in Ohio at the time of the accident. The date was May 19, 1992. The Adams were traveling in a 1988 Dodge Caravan driven by Mr. Adam.

The Adam van was proceeding north on Interstate 75 in Fayette County, Kentucky. There was a film of diesel fuel over the highway, for some reason, and a light rain was falling. The road was very slick.

As might be expected, given the nature of his trauma, Mr. Adam has no recollection of the accident. There was evidence, however, that the Adam van was in the left lane when a red Toyota, driven by an unidentified driver, moved into that lane from the right; that the Adam van veered left and hit a guardrail; that the van was then struck by a Chevrolet Corsica; that an ambulance owned by Med-Tech, Inc., and driven by Roger Musick pulled off onto the right safety lane, where it was hit by a Dodge Monaco; that the Monaco spun out into the right lane of traffic; that a grey Renault came to a stop on the left berm just short of the Adam van; that a black pickup truck was moving between the ambulance on the right and the Adam van on the left when defendant J.B. Hunt's tractor-trailer rig, driven by defendant Larry Holbrooks, went into a jackknife and crashed into the Monaco, the Renault, the Adam van, and the black pickup; that Mrs. Adam was ejected from the van; and that defendant A.G. Carriers' tractor-trailer rig, which was being driven behind the Hunt rig by defendant William Wood, hit the Adam van after Mrs. Adam had been ejected.

There was also conflicting evidence--mainly presented after the completion of the plaintiffs' case in chief--from which a jury could have inferred that the Adam van hit the guardrail after the Med-Tech ambulance, entering the interstate from a ramp on the right, swerved into the van; that the A.G. Carriers tractor hit the J.B. Hunt trailer before the Hunt rig had jackknifed out of control; and that Mrs. Adam was not ejected from the van until the A.G. Carriers truck struck the Hunt truck and the van itself.

Both Mrs. Adam and the driver of the Monaco (which had been hit by yet another tractor-trailer) were killed. John Adam, who was found at the scene unconscious, was airlifted to the University of Kentucky Hospital. His daughter Rachel was taken to Humana Hospital.


The present lawsuit was filed in the United States District Court for the Southern District of Ohio on May 13, 1993. Named as defendants were J.B. Hunt and its driver, Larry Holbrooks; A.G. Carriers and its driver, William Wood; Chrysler Corporation, the manufacturer of the van; Robert Barthelme, the driver of the Chevrolet Corsica; 1 and two John Doe defendants. In due course the case was transferred to the Eastern District of Kentucky under 28 U.S.C. § 1406. Defendants J.B. Hunt and Holbrooks then impleaded various third-party defendants, including Mr. Barthelme, Med-Tech, and the ambulance driver, Mr. Musick. (The third-party defendants were subsequently dismissed, pursuant to Kentucky law, as having no liability to the original defendants for any part of the plaintiffs' claims against those defendants; see Kentucky C.R. 14.01, governing third-party practice against "a person not a party to the action who is or may be liable to [the defendant] for all or part of the plaintiff's claim against him.")

In his capacity as Executor of the Estate of Ann Adam, Mr. Adam moved for a declaration that the determination of damages on the estate's wrongful death claim should be governed by Ohio Rev.Code § 2125.02, which is part of the Ohio Wrongful Death Act. A magistrate judge, given plenary power over the case by agreement of the parties, denied Mr. Adam's motion. The magistrate held that the substantive law of Kentucky, where the accident occurred, governed the wrongful death claim.

A.G. Carriers and its driver, Mr. Wood, moved for summary judgment on the ground that there was no proof that their conduct was the proximate cause of either Mrs.

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Adam's death or the injuries suffered by Mr. Adam and Rachel Adam. The magistrate deferred a ruling on this motion until the case was tried.

Chrysler Corporation was dismissed pursuant to a settlement agreement, after which the case went to trial before a jury. The trial lasted almost three weeks.

At the conclusion of the plaintiffs' evidence on liability, the A.G. Carriers/Wood defendants renewed their summary judgment motion and moved in the alternative for judgment as a matter of law under Rule 50(a), Fed.R.Civ.P. The court denied the motions insofar as the personal injury claims of Mr. Adam and Rachel were concerned, but directed a verdict in favor of A.G. Carriers and Mr. Wood on the wrongful death claim. (Counsel for J.B. Hunt did not oppose the directed verdict, but asked the court to reserve its ruling on apportionment of damages until the defendants' proofs had been presented. The court agreed to do so.) The directed verdict on the wrongful death claim has not been appealed.

At the conclusion of all the evidence the case was submitted to the jury with instructions that the amount of each plaintiff's damages should be ascertained without regard to fault. (As we shall see, this instruction was consistent with Kentucky's comparative negligence statute, Ky.Rev.Stat. 411.182.) The jury was then told that fault should be apportioned among Mr. Adam, Mrs. Adam, the unknown driver of the red Toyota (John Doe # 2), J.B. Hunt and Mr. Holbrooks, A.G. Carriers and Mr. Wood, 2 and the third-party defendants that had been dismissed prior to trial. The plaintiffs objected--unsuccessfully--that the statute did not permit allocation of fault to the dismissed third-party defendants or to John Doe # 2. The objection did not extend to the inclusion of A.G. Carriers and Mr. Wood in the apportionment instructions.

The jury--which at one point in its deliberations told the court it was deadlocked (a situation that resolved itself after the court, without objection, gave an Allen charge)--set the damages of Mrs. Adam's estate at $439,226. As indicated above, Rachel's damages were set at $30,000 and Mr. Adam's at zero. The jury apportioned fault as follows with respect to the wrongful death claim:

Mr. Adam 25 percent Mrs. Adam 10 percent J.B. Hunt/Holbrooks 20 percent Med-Tech/Musick 25 percent A.G. Carriers/Wood 20 percent. Fault was apportioned as follows with respect to the personal injury claims of Mr. Adam and young Rachel Adam:

No fault was assigned to the drivers of the red Toyota, the Chevrolet Corsica, or the Dodge Monaco insofar as any of the claims was concerned.

Judgment was entered in accordance with the verdict, subject to the qualification that the estate of Mrs. Adam took nothing against A.G. Carriers or Mr. Wood, the latters' motion for a directed verdict having been granted as to the wrongful death claim, and none of the plaintiffs took anything from Med-Tech/Musick, these third-party defendants having been dismissed by the court prior to trial without having been...

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