Beard v. Lim

• Decision Date: 18 July 1991
• Docket Number: No. 19670,19670
• Citation: 408 S.E.2d 772,185 W.Va. 749
• Court: West Virginia Supreme Court
• Parties: Boyd Thurman BEARD and Mary F. Beard, Plaintiffs Below, Appellees, v. Romeo Y. LIM, John A.B. Holt and the Eye and Ear Clinic of Charleston, Inc., Defendants and Third-Party Plaintiffs Below, v. ETHICON, INC. and Hospital and Physicians Supply Co., Inc., Defendants and Third-Party Defendants Below, Appellants.

Page 772

408 S.E.2d 772

185 W.Va. 749

Boyd Thurman BEARD and Mary F. Beard, Plaintiffs Below, Appellees, v. Romeo Y. LIM, John A.B. Holt and the Eye and Ear Clinic of

Charleston, Inc., Defendants and Third-Party Plaintiffs Below, v. ETHICON, INC. and Hospital and Physicians Supply Co., Inc.,

Defendants and Third-Party Defendants Below, Appellants.

No. 19670.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1991.

Decided July 18, 1991.

Syllabus by the Court

1. "Under W.Va.Code, 56-6-31, as amended, prejudgment interest on special or liquidated damages is recoverable as a matter of law and must be calculated and added to those damages by the trial court rather than by the jury." Syl. Pt. 1, Grove ex rel. Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989).

2. "We will not, in every case, refrain from sorting out errors involving prejudgment interest, but when the defendant fails to submit a special jury interrogatory asking the jury to set forth special or liquidated damages this Court's attention to such errors is entirely a matter of grace and if the subject is deliberately obfuscated by counsel or error is invited, this Court will summarily dismiss the assignment." Syl. Pt. 7, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991).

3. It is the duty of the trial court to ascertain where possible, the amount of special damages proved at trial as well as the actual accrual date of the damages. Prudent defense counsel should continue to seek a special interrogatory on the issue of special damages where it would aid the trial court in its determinations, but failure to submit a special interrogatory will not necessarily justify an award of prejudgment interest on the entire verdict by the trial court. However, in the face of such failure to submit a special interrogatory, the trial court should give the plaintiff the benefit of any doubt in the calculation of prejudgment interest.

Thomas J. Hurney, Jr., Laidley Tower, Charleston, Andrew D. Schau, Patterson, Belknap, Webb & Tyler, New York City, Herschel H. Rose, III, Steptoe & Johnson, Charleston, for appellants and defendants.

Timothy N. Barber, E. Joseph Buffa, Jr., Charleston, for appellees.

WORKMAN, Justice:

This is an appeal of a final judgment of the Circuit Court of Kanawha County rendered on June 29, 1989. ¹ Pursuant to the return of a general verdict by a jury, the appellee, Boyd Beard was awarded $202,712.27 in damages, and his wife, appellee Mary Beard, was awarded $85,000.00 for loss of consortium. The jury assessed the appellant, Ethicon, Inc., seventy-five percent of the negligence which proximately caused the appellee's injuries. ² Subsequently, plaintiffs moved for determination of prejudgment interest and the trial court awarded it on the entire verdict. Thus, appellee's recovery more than doubled to $427,339.68. The appellant contends that the trial court erred in awarding appellee Boyd Beard prejudgment interest on that portion of the verdict which exceeded the maximum amount of special damages proven by plaintiffs, which appellants contend was $28,836.52. We agree and accordingly reverse the decision of the lower court as to prejudgment interest.

Appellee Boyd Beard had his tonsils removed on September 16, 1975. During surgery, a suture needle broke. The pointed portion of the broken needle, measuring nine-sixteenths of an inch, remained lodged in the back of appellee's throat, and was not removed until almost six months later. ³

Approximately two years after the first surgery, on September 15, 1975, the appellees instituted action against Mr. Beard's physicians, Drs. John Holt and Romeo Lim, and the Eye and Ear Clinic of Charleston Inc. alleging medical malpractice. Appellants Ethicon, Inc. and Hospital & Physician Supply Co., Inc., the manufacturer and distributor of the suture needle respectively, became parties to the suit under a manufacturing defect theory pursuant to a third-party motion filed by the malpractice defendants on August 12, 1981. ⁴

Appellee's principal damage claim was that he had become an alcoholic during the six-month period between the tonsillectomy in September 1975 and the removal of the needle fragment the following February. Specifically, the appellee claimed that on June 2, 1980, he was first admitted as an inpatient for treatment of the alcoholism which developed as a result of the injury. He subsequently went through six more hospital admissions for the treatment of alcoholism during the next five years. The appellee was apparently unable to control his alcoholism until his treatment at Thomas Memorial Hospital in November 1985.

As a result of these hospitalizations, as well as medical and hospitalization expenses resulting from the surgery to remove the needle, appellee Boyd Beard sought special damages based on his medical bills which totaled $22,435.77 and lost wages which totaled $6,400.75. These special damages were listed on two exhibits ⁵ prepared by plaintiffs' counsel and stipulated to by the parties as to authenticity and admissibility. ⁶ These exhibits were admitted into evidence and were taken by the jury into their deliberations.

The sole issue before this Court focuses upon the trial court's calculation of prejudgment interest on the entire general verdict awarded to the appellee Boyd Beard. The appellant maintains that the trial court erred in awarding appellee Boyd Beard prejudgment interest on that portion of the verdict which exceeded the amount of special damages set forth in the stipulation. The appellees contend that the trial court correctly awarded prejudgment interest on the entire jury verdict since the defendants failed to follow the procedure set forth in Kirk v. Pineville Mobile Homes, Inc., 172 W.Va. 693, 310 S.E.2d 210 (1983) of requesting that a special interrogatory be submitted to the jury to ascertain the amount of special damages.

That the appellants' argument that the stipulations themselves fixed the maximum amount of special damages should be disposed of at the outset, for it is without merit. The stipulations went merely to authenticity and admissibility and in no way indicated agreement by the appellants that the expenses were reasonable or that they proximately resulted from the alleged malpractice. Thus, this decision in no way turns on the fact that appellants entered into these stipulations.

It is undisputed that the controlling statutory law in West Virginia provides for the award of prejudgment interest on special damage awards. West Virginia Code § 56-6-31 (1981) indicates that:

Except where it is otherwise provided by law, every judgment or decree for the payment of money entered by any court of this State shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not: Provided, that if the judgment or decree, or any part thereof, is for special damages, as defined below, or for liquidated damages, the amount of such special or liquidated damages shall bear interest from the date the right to bring the same shall have accrued, as determined by the court. Special damages includes lost wages and income, medical expenses, damages to tangible personal property, and similar out-of-pocket expenditures, as determined by the court. The rate of interest shall be ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time, notwithstanding any other provisions of law. (emphasis supplied)

Subsequent to the enactment of the above-mentioned statutory provision, this Court has on at least three occasions addressed the implications of prejudgment interest as applied to special damages in the Kirk, 172 W.Va. 693, 310 S.E.2d 210, ⁷ Grove ex rel. Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989) and Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991) decisions. In making a determination of the issue presently before the Court, it is important to examine each of these decisions.

In Kirk, a jury awarded appellant homeowners $54,000.00 in damages for loss of their home and personal property and consequential annoyance and inconvenience as the result of a fire. The circuit court refused to award any prejudgment interest on the general verdict, reasoning that annoyance and inconvenience damages were neither liquidated nor special, and thus the appellants were not entitled to prejudgment interest on the entire verdict. 172 W.Va. at 694, 310 S.E.2d at 211.

Upon review of the lower court's decision, this Court determined that prejudgment interest was recoverable on " 'ascertainable pecuniary loss' " in order to " 'fully compensate the injured party for the loss of the use of funds that have been expended.' " Id. 172 W.Va. at 694, 310 S.E.2d at211-12 (quoting Bond v.City of Huntington, 166 W.Va. 581, 598, 276 S.E.2d 539, 548 (1981) superceded by statute as stated in Rice v. Ryder, 184 W.Va. 255, 400 S.E.2d 263 (1990)). Further, this Court observed that annoyance and inconvenience claims arising from property use loss represent damages which: 1) are "closely tied to the property damage loss"; 2) constitute "a limited amount measured by an objective standard"; and 3) "will [generally] account for only a minor portion of the total damages recovered by a successful plaintiff." 172 W.Va. at 695, 310 S.E.2d at 212-13.

Thus, in Kirk we held that

[w]here a general verdict is returned for loss or damage to real and personal property which includes an amount for loss of use arising from annoyance and inconvenience, the plaintiff is entitled to prejudgment interest on the entire amount of the general verdict unless the jury has by separate finding established an amount for such loss of use.

Id. 172 W.Va. at 694, 310 S.E.2d at211, Syl. Pt. 3; accord Syl. Pt. 7, Berry v. Nationwide Mut. Fire Ins. Co., 181 W.Va. 168, 381 S.E.2d 367 (1989).

Next, in Grove, which was decided after the 1981 amendment to W.Va.Code §...