Calhoun v. Provence, 2010-CA-001282-MR
| Decision Date | 22 June 2012 |
| Docket Number | NO. 2010-CA-001348-MR,NO. 2010-CA-001282-MR,2010-CA-001282-MR,2010-CA-001348-MR |
| Parties | MARY B. CALHOUN AND LESLIE D. CALHOUN APPELLANTS v. CHARLES E. PROVENCE, II; THOMAS MIDDLETON; KENTUCKY AUTO EXCHANGE, INC.; YADEN'S AUTO SALES, INC.; AND LEGEND MOTORS, INC., D/B/A LEGEND SUZUKI APPELLEES AND LEGEND MOTORS, INC., D/B/A LEGEND SUZUKI CROSS-APPELLANT v. MARY B. CALHOUN; LESLIE D. CALHOUN; CHARLES E. PROVENCE, II; THOMAS MIDDLETON; KENTUCKY AUTO EXCHANGE, INC.; AND YADEN' S AUTO SALES, INC. CROSS-APPELLEES |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM LAUREL CIRCUIT COURT
At the end of her workday on May 15, 2007, Mrs. Calhoun left her place of employment in London, Kentucky, and began driving her vehicle through the parking lot toward the exit onto Highway 1006. As she approached the exit, a vehicle operated by Charles E. Provence, II was stopped in front of her. According to Mrs. Calhoun, the vehicle in front of her suddenly accelerated backward towardher vehicle and crashed into it. The force of the collision was such that the two vehicles were stuck together.
Mrs. Calhoun did not suffer any apparent injury from the collision and she called the police. Officer Derek House arrived and conducted an investigation. Provence told Officer House that the vehicle he was operating - a 1999 GMC Jimmy 4x4 - slipped out of gear and rolled backward into Mrs. Calhoun's vehicle. Mrs. Calhoun stated that the vehicle operated by Provence had accelerated backward into her car.
Officer House noticed that Provence had a lethargic speech pattern and that he was unsteady on his feet. Officer House administered two field sobriety tests, both of which Provence failed. Provence stated that he had taken a lawfully-prescribed medication called Adipex. Officer House arrested Provence, and transported him to Marymount Hospital where a blood sample was taken. That sample was tested by the Kentucky State Police laboratory in Frankfort, which revealed that Provence had taken Adipex, Xanax, and Valium. Provence later pled guilty to the charge of Reckless Driving. He acknowledged taking Adipex and Xanax, but denied taking any Valium the day of the collision.
According to Provence, at the time of the collision he was operating the GMC Jimmy as an arbitrator for Kentucky Auto Exchange and was checking a complaint about the vehicle's four wheel drive system. He would later state that contrary to what he told Officer House, he did not roll backward into Mrs.Calhoun's vehicle, but rather it was Mrs. Calhoun's vehicle which struck the GMC Jimmy.
Though Mrs. Calhoun did not notice any injury on the day of the accident, the next day she began experiencing discomfort in her lower back, left shoulder and neck. She visited her chiropractor, who diagnosed muscle spasms and soft tissue irritation. Mrs. Calhoun received nine chiropractic treatments over the next few weeks, which reduced her back and neck pain. Her shoulder pain worsened, however, resulting in the chiropractor referring her to an orthopedic surgeon for evaluation. Mrs. Calhoun did not like the surgeon and did not return after the first visit.
By January, 2008, the shoulder pain had increased to such a degree that Mrs. Calhoun again sought medical treatment. She was examined by another orthopedic surgeon, Dr. Robert T. Grant, who recommended an MRI. After evaluating the results of the MRI, Dr. Grant diagnosed adhesive capsulitis and prescribed conservative treatments of anti-inflammatory treatment and physical therapy. According to the record, adhesive capsulitis - more commonly called "frozen shoulder" - occurs when pain and inflammation cause the patient to restrict movement, which in turn causes tissue to adhere and further restrict movement. Dr. Grant characterized the problem as idiopathic, or of unknown causation, though he suspected that the motor vehicle accident caused the pain and inflammation, which then resulted in the adhesive capsulitis.
The conservative treatment was not successful, and Mrs. Calhoun underwent surgery in March, 2008. After her shoulder did not improve, a second shoulder surgery was conducted in May, 2008. After the second surgery, Mrs. Calhoun continued with physical therapy. By November, 2008, she had little or no pain and the motion in her left arm was back to normal.
The Calhouns filed the instant action in Laurel Circuit Court against Provence and Thomas R. Middleton, who was the current or former titleholder of record of the GMC Jimmy. Mrs. Calhoun made a claim for damages based on bodily injury, property damage, and punitive damages. Mr. Calhoun claimed loss of consortium. Thereafter, the parties filed an Amended Complaint, which joined as party defendants Kentucky Auto Exchange, Inc. ("Kentucky Auto Exchange"), Yaden's Auto Sales, Inc. ("Yaden's Auto Sales"), and Legend Motors, d/b/a Legend Suzuki ("Legend Suzuki"). In the Amended Complaint, the Calhouns alleged that Kentucky Auto Exchange, Yaden's Auto Sales, and Legend Suzuki had negligently entrusted the GMC Jimmy to Provence.
Extensive discovery was conducted and the trial court rendered an Order bifurcating the proceedings. The first phase of the trial was conducted to determine Provence's liability, if any, as well as Mrs. Calhoun's comparative negligence and damages. At the second phase, the claims against Legend Suzuki and Yaden's Auto Sales would be tried. These claims included negligent entrustment, negligent hiring, retention and supervision, and apportionment among all parties.
The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns' motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun's injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun's claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun's claim for punitive damages.
At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden's Auto Sales on the Calhouns' claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.
A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns' motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.
The Calhouns first argue that the trial court committed reversible error in bifurcating the proceedings. Directing our attention to CR 42.02, the Calhounsnote that a trial court shall order separate trials if it determines that such trials "will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy[.]" The Calhouns argue that under the facts at bar, a bifurcated proceeding would not be conducive to expedition and economy, and that the trial court did not determine that two trials "will avoid prejudice." Rather, the Calhouns maintain that in bifurcating the proceeding, the court merely opined the trial would be more efficient and "may" be less potentially prejudicial. Additionally, the Calhouns contend that the court made no indication of what the prejudice would be, nor which party would be prejudiced. In sum, the Calhouns argue that the bifurcation was not supported by the record and the law, that it resulted in conflicting verdicts, and that it was manifestly arbitrary, unfair, unreasonable and not supported by sound legal principles.
Accordingly, separate trials shall be conducted if the court determines that they will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy. In the matter at bar, the trial court stated as its basis for bifurcation its concern that the introduction of Provence's criminal history anddriving record could prejudice the proceedings against the remaining defendants if all of the claims were...
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