Cook v. Cook

Decision Date01 December 2004
Docket NumberNo. 31703.,31703.
CourtWest Virginia Supreme Court
PartiesTifinie M. COOK, Plaintiff Below, Appellant v. Faith Woods COOK, Defendant Below, Appellee.

Carte P. Goodwin, Goodwin & Goodwin, LLP, Charleston, West Virginia, Attorney for the Appellant.

David A. Mohler, Atkinson, Mohler & Polak, Charleston, West Virginia, Attorney for the Appellee.

ALBRIGHT, Justice:

This case involves a certified question from the Circuit Court of Kanawha County, presented to this Court pursuant to West Virginia Code § 58-5-2 (1998) (Supp.2004)1 and in adherence with Rule 13 of the West Virginia Rules of Appellate Procedure.2 The question, certified by order dated November 6, 2003, arose in an underlying tort action and concerns the nature of evidence needed to support a claim for future damages in the form of lost earnings. The question as certified as well as the trial court's answer follow:

Does Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), require a personal injury plaintiff to demonstrate through medical evidence the permanent deterioration of her physical condition where her claim for lost future wages depends not on the lasting effect of her injuries, but rather on Plaintiff proving that a specific employment opportunity has been forever lost to her as a proximate cause of the defendant's tortious conduct?

Answer of the circuit court:

West Virginia law requires proof of a permanent injury before future damages can be claimed; thus, prior to claiming damages for the "future permanent consequences" of a personal injury, the plaintiff must establish a permanent medical injury resulting from the accident.

For the reasons stated below, this Court disagrees with the conclusion reached by the lower court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The issue of future damages before us has emerged from a personal injury action involving an automobile collision which occurred on September 8, 1999. It is alleged that on that date the car of Faith Woods Cook, defendant below and appellee herein (hereinafter referred to as "Appellee"), collided into the rear of the car of Tifinie Cook.3 At the time of the accident, Tifinie Cook, plaintiff below and appellant herein (hereinafter referred to as "Appellant"), was a member of the Air National Guard. Appellant filed a negligence suit against Appellee in which Appellant sought to recover, among other damages, future Air National Guard wages and benefits that she allegedly lost as a result of Appellee's negligence. According to Appellant, due to the injuries she sustained in the accident she not only was involuntarily discharged from the Air National Guard but also became ineligible for reenlistment. On July 1, 2002, the lower court granted Appellant's motion for partial summary judgment on the issue of liability. Thereafter, Appellant filed a motion in limine seeking a ruling on whether she could, solely within the context of her claim for future Air National Guard wages and benefits, demonstrate the "future permanent consequences" of her injuries by proving the permanent nature of her military discharge. Syl. Pt. 7, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). In ruling on Appellant's motion, the lower court concluded that, contrary to Appellant's requested ruling, under West Virginia law proof of a permanent medical injury was an essential prerequisite to sustain a claim for lost future wages and benefits. Nevertheless, the lower court found the question appropriate to certify to this Court because of its importance to the issues remaining for adjudication in this case. Appellee objected to the certification, contending that the facts involving the matter certified were in dispute. On February 25, 2004, this Court granted review of the certified question.

II. STANDARD OF REVIEW

The record and briefs of the parties fully support Appellee's assertion that the facts surrounding the question certified are largely in dispute. Nevertheless, the relevance of the facts to the resolution of causation and damage matters yet pending before the lower court turns on the legal issue presented in the certified question. As a question of law, we find the question to be within this Court's jurisdiction as authorized by West Virginia Code § 58-5-2. Our "appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

III. DISCUSSION
A. Future Damages

To place the issue presented in the certified question in proper context, we initially review some basic relevant concepts of compensatory damages. Generally, a tort plaintiff is entitled to all damages proximately caused by a wrongdoer's actions. "The basic goal in awarding damages is to fairly and adequately compensate the plaintiff for the injuries and losses sustained." Flannery v. U.S., 171 W.Va. 27, 29, 297 S.E.2d 433, 435 (1982). Thus, "the aim of compensatory damages is to restore a plaintiff to the financial position he/she would presently enjoy but for the defendant's injurious conduct." Kessel v. Leavitt, 204 W.Va. 95, 187, 511 S.E.2d 720, 812 (1998).

To fulfill this overarching goal of making an injured party whole, compensatory damages include not only actual losses but also the anticipated losses due to the future effects of an injury caused by negligence. Future damages are "awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses." Syl. Pt. 10, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). In syllabus point seven of Jordan we formally adopted the test, first articulated in Wilson v. Fleming, 89 W.Va. 553, 109 S.E. 810 (1921), for recovering future damages:

To form a legal basis for recovery of future permanent consequences of the negligent infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury; contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.

We further explained in syllabus point nine of Jordan that "[t]he permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." 158 W.Va. at 29, 210 S.E.2d at 623.

B. Certified Question Clarified

The question as submitted refers to the future damages at issue as lost wages. The parties interchangeably employ the terms "impaired earning capacity," "lost earning opportunity" and "lost future income or wages" to characterize the damages involved.4 In actuality, the relief sought by Appellant as the plaintiff below is compensation for future wages and benefits lost as a result of her discharge from the Air National Guard. In order to accurately represent the future damages being sought, we invoke our discretion to reframe the question as certified5 in the following way:

Does Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), require a personal injury plaintiff to demonstrate through medical evidence the permanent deterioration of her physical condition where her claim for lost future income depends not on the lasting effect of her injuries, but rather on whether the defendant's tortious conduct was a proximate cause of plaintiff losing forever a specific employment opportunity?

The court below answered the question as certified in the affirmative based on the conclusion that Jordan and subsequent relevant cases require that future damage claims be premised on "a permanent medical injury resulting from the accident." We proceed with an examination of the issues of permanence and type of injury which this response raises.

C. Permanence

Appellant essentially asserts that a permanent injury is not a prerequisite to a recovery for future damages and instead asserts that the test set forth in Jordan allows recovery for future permanent consequences of the negligent infliction of a personal injury if it appears reasonably certain that such permanent consequences will result from the injury. Appellee claims that a permanent injury to the person is a long-standing precondition to an award of future lost earnings. We find neither argument entirely representative of the relevant law as announced in Jordan or as applied in cases following Jordan.

We return to the previously cited language of syllabus point seven of Jordan for the test governing future damage claims:

To form a legal basis for recovery of future permanent consequences of the negligent infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury; contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.

158 W.Va. at 29, 210 S.E.2d at 622-23. It is plain that the test for future damages as set forth in Jordan requires that the "consequences of the negligent infliction of a personal injury" be demonstrated with a reasonable degree of certainty. Id. (emphasis added). The consequences to which the reasonable certainty standard is to be applied are later characterized in syllabus point nine of Jordan as "[t]he permanency or future effect of any injury." 158 W.Va. at 29, 210 S.E.2d at 623. Our subsequent opinions employed an abbreviated alternative reference to permanent consequence as permanent injury. See e.g. Adkins v. Foster, 187 W.Va. 730, 733, 421 S.E.2d 271, 274 (1992)

(stating that Jordan requires proof of "permanent injury and reasonable degree of certainty" as prerequisites to recovery for impairment of earning capacity). Unfortunately, this alternative characterization has apparently led to confusing the permanency of the consequence with the...

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