Fuel Transport, Inc. v. Gibson, No. 2008-CA-000969-MR (Ky. App. 9/25/2009)
| Decision Date | 25 September 2009 |
| Docket Number | No. 2008-CA-000969-MR.,2008-CA-000969-MR. |
| Parties | FUEL TRANSPORT, INC. and Troy E. Vanderpool, Appellants v. Garnett GIBSON, as executor and Personal Representative of the Estate of Topsie Gibson, Appellee. |
| Court | Kentucky Court of Appeals |
Ronald L. Green, Carl W. Walter II, Lexington, Kentucky, Virginia H. Snell, Louisville, Kentucky, Briefs for Appellants.
Nathan Collins, Hindman, Kentucky, Brief for Appellee.
Before: CLAYTON and THOMPSON, Judges; LAMBERT,1 Senior Judge.
Appellants, Fuel Transport, Inc. and Troy E. Vanderpool (Vanderpool), bring this appeal in a wrongful death case against appellee, Garnett Gibson, as executor and personal representative of the estate of Topsie Gibson, from the final judgment of the Knott Circuit Court entered on January 8, 2008, and the trial court's denial of their posttrial motions entered on May 1, 2008. For the reasons stated herein, we affirm in part and reverse in part.
On March 22, 2005, plaintiffs, Garnett Gibson, as executor and personal representative of the estate of Topsie Gibson (Estate), and Roger Russell (Russell) filed a complaint in Knott Circuit Court for compensatory and punitive damages against appellants for personal injuries and damages as a result of an accident between Russell and Topsie's vehicle and a truck and trailer owned by Fuel Transport and operated by Vanderpool. The accident, which occurred on November 2, 2004, was caused when the appellants' trailer overturned and spilled its cargo of coal across a dark, unlit portion of Kentucky State Road 80, at or near the county line between Knott and Floyd counties. Plaintiffs filed this action on March 22, 2005, alleging ordinary negligence against Vanderpool in causing the accident, vicarious liability and negligent entrustment on the part of Fuel Transport, and gross negligence against Fuel Transport for failing to properly maintain the truck involved in the accident. Trial commenced on December 3, 2007.
On December 4, 2007, the morning following the commencement of trial, Russell settled his claims with appellants, leaving the Estate as the sole plaintiff. The trial continued with the appellants and the Estate and concluded on December 5, 2007. After less than two hours deliberating, the jury unanimously found in favor of the Estate and awarded $2,121,371.31 in compensatory damages against both appellants and an additional $2 million in punitive damages against Fuel Transport. Judgment was entered by the court on January 8, 2007.
On appeal, appellants present the following issues: (1) the trial court erred in denying their motion for a new trial based on prejudicial juror misconduct and bias; (2) the court erred in permitting the jury to consider punitive damages against Fuel Transport; (3) the punitive damages awarded were unconstitutionally excessive; (4) the award for pain and suffering was unsupported by evidence and based on passion and prejudice; (5) the court erred in its instructions on pain and suffering and punitive damages; and (6) the court erred in refusing to transfer venue.
Appellants contend that a new trial should have been granted based on alleged juror misconduct. We review the trial court's denial of a motion for a new trial for abuse of discretion. Kaminski v. Bremner, Inc., 281 S.W.3d 298, 304 (Ky. App. 2009). Presuming the trial court to be correct, we will reverse its decision only upon a clear showing that the trial judge acted in a manner which was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (quoting Lester v. Com., 132 S.W.3d 857, 863 (Ky. 2004) (citations omitted)). Because we find that the trial court was correct in denying appellant's motion for a new trial based on the alleged juror misconduct, we affirm its decision on this issue.
Appellants argue that one of the jurors, Lisa Short (Short), concealed the fact that her father had been killed in an automobile accident. This issue was first raised in appellants' January 18, 2008, "Motion for Judgment NOV or in the Alternative, a New Trial" wherein they argued that Short's familial history tainted the jury. Appellants claim that they only discovered Short's "significant bias" in a posttrial interview. Had Short's personal history been revealed during voir dire, appellants argue she would either have been struck for cause or appellants would have used a preemptory strike to remove her from the panel.
Voir dire is the means by which a party can "ascertain whether a cause for challenge exists, [or] whether it is expedient to exercise the right of peremptory challenge[]" by determining whether a juror has the necessary qualifications, has prejudged a case, or is free from prejudice or bias. Sizemore v. Com., 306 S.W.2d 832, 834 (Ky. 1957) (citing 50 C.J.S. Juries, § 273). Merely having a similar background is not enough to justify excusing a juror for cause. See Allen v. Com., 278 S.W.3d 649 (Ky. App. 2009); Richardson v. Com., 161 S.W.3d 327 (Ky. 2005); Hodge v. Com., 17 S.W.3d 824 (Ky. 2000). Instead, bias or impartiality must be proven by the party alleging such and will not be presumed. Hicks v. Com., 805 S.W.2d 144 (Ky. App. 1990). Where a challenge to juror qualification is first raised after a verdict is rendered, the party seeking relief must "allege facts, which if proven to be true, are sufficient to undermine the integrity of the verdict." Gordon v. Com., 916 S.W.2d 176, 179 (Ky. 1995). Thus, in order to obtain a new trial based on alleged juror mendacity, "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Adkins v. Com., 96 S.W.3d 779, 796 (Ky. 2003) (quoting McDonough Power Equipment., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)).
In Sizemore, 306 S.W.2d 832, the Court reversed the trial court's judgment based on the failure of two jurors during voir dire to disclose that they had been related to a victim of a crime similar to that charged against the accused. During voir dire in a murder trial, the potential jurors were asked whether any of them "had ever been interested in the prosecution of a case in which a person had been killed." Id. at 833. It was later revealed that two of the jurors had been related to a victim killed by her husband; one as an uncle and the other by marriage. Id. Although the Court recognized that the term "interested" could be interpreted different ways, the Court nonetheless held that the jurors were under a duty to disclose their relationship to a murder victim where under the circumstances described it would be "difficult to conceive of a situation where complete indifference existed." Id. at 834. Therefore, the judgment was reversed due to the failure of the jurors to disclose information that may have been of "great value to the attorney for the defense in determining whether bias, actual or implied, existed." Id.
By contrast, in Moss v. Com., 949 S.W.2d 579, 580-82 (Ky. 1997), no error in failing to disclose was found where one of the jurors later admitted he knew the two testifying police officers. During voir dire, the jurors were asked if they had "any relationship or knowledge of these officers. . . that would affect your ability to be fair to both sides in this case?" Id. at 580. Although no juror responded in the affirmative, one of the jurors later approached the court, out of the presence of any of the parties, and revealed that he knew both officers but that his knowledge would not affect his ability to be impartial. Id. at 581. The trial court did not disclose this conversation to the parties. Id. On appeal, it was held that, although it was improper for the court to not have disclosed this information to the parties, no reversible error had occurred. Id. Although the defendant alleged that had this juror's relationship to the officers been known he would have challenged him for cause or struck him preemptively, the court noted that not only would the juror not likely have been struck for cause, but that the defendant had "failed to ask any question which would have led to disclosure of the information revealed to the court." Id; see also Holladay v. Holladay, 294 Ky. 540, 172 S.W.2d 36 (Ky. 1943). Since the juror had answered truthfully the question asked, the defendant's failure to ask the "proper question," which may "have triggered a more complete response," precluded relief. Moss, 949 S.W.2d at 582 (citing Whisman v. Com., 667 S.W.2d 394 (Ky. App. 1984)); see also Roy L. Jones Truck Line v. Johnson, 225 S.W.2d 888, 896 (Tex. App. 1949). The Court further held that it is entirely speculative and quite possibly self-serving for appellant to assert that he would have used a peremptory challenge to exclude this juror. If we allowed such a practice, after-acquired information could always be used in post-trial assertions that a particular juror would have been excused had the undisclosed information been known.
Similarly, in reviewing the record, this Court finds that appellants failed to ask a proper question which may have elicited the response that they now complain is prejudicially omitted. Appellants argue that Short failed in her duty to disclose that her father had been involved in a fatal automobile accident. They further allege that not only did her father's accident ultimately affect her decision, but had she disclosed this information, she would have either been removed for cause or preemptively struck from the panel of jurors.
During voir dire, appellants asked, in essence, whether any potential juror would be unable to set aside his or her own life experiences in order to render a verdict on the facts presented. Neither Short nor any of the other...
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