Griffin v. Acker

• Decision Date: 29 December 1995
• Docket Number: No. 48A02-9503-CV-155,48A02-9503-CV-155
• Citation: 659 N.E.2d 659
• Parties: Harold D. GRIFFIN, Appellant-Defendant v. Jenny L. and Joseph J. ACKER, Individually and as Parents and Guardians of Ryan Joseph Acker, A Minor, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 659

659 N.E.2d 659

Harold D. GRIFFIN, Appellant-Defendant v. Jenny L. and Joseph J. ACKER, Individually and as Parents and Guardians of Ryan Joseph Acker, A Minor Appellees-Plaintiffs.

No. 48A02-9503-CV-155.

Court of Appeals of Indiana.

Dec. 29, 1995.

Rehearing Denied March 4, 1996.

William K. Deer, Paul A. Logan, McTurnan Cadwell & Deer, Indianapolis, for appellant.

Ralph E. Dowling, William E. Winningham, Wilson Kehoe & Winningham, Indianapolis, for appellees.

OPINION

ROBERTSON, Judge.

Harold D. Griffin appeals a jury verdict in favor of Jenny L. and Joseph J. Acker in their lawsuit related to an automobile collision which involved Griffin and Jenny Acker. Griffin raises the following issues:

I. Is the Defendant entitled to an instruction that the Plaintiff's damages for future medical expenses and future pain and suffering should be reduced to present value, and should the Defendant be allowed to introduce evidence to aid the jury to assess the present value of future medical expenses and future pain and suffering.

II. Was the $90,000.00 verdict excessive as a matter of law?

We affirm.

The evidence reveals that the Ackers' automobile had a head-on collision with Griffin's automobile. Jenny, the driver of the Ackers' vehicle, received several injuries in the crash. The Ackers filed a lawsuit against Griffin for damages. The trial court found Griffin negligent and submitted the issue of damages to a jury.

During the trial for damages, Counsel for the Ackers intended to argue that Jenny was permanently injured and should receive $5 to $10 per day for the remainder of her life expectancy for her pain and suffering. Counsel also intended to argue that she would incur medical expenses of $750 every five years for the remainder of her life expectancy.

In light of the particularized sums that Counsel for the Plaintiffs proposed to present to the jury, Counsel for Griffin sought to instruct the jury, as follows:

In determining damages, if any, for future medical expenses and future pain and suffering, if any, you may award only the present value of such future losses. You may not award damages for future losses that are not reduced to this present value.

Griffin tendered the instruction to the trial court along with two exhibits for use by the jury in the determination of present value. In the form of Exhibit A, Griffin asked the trial court to take judicial notice of interest tables located in Burns Indiana Statutes. Griffin also tendered a copy of the Wall Street Journal, as Exhibit B, which showed that the prevailing rate of 30-year Treasury bonds was seven and one-half percent as of the previous Friday. Counsel for the Ackers objected to the instruction and to the exhibits, in part, because they did not account for inflation and because they would confuse the jury. The trial court ruled on the admissibility of both exhibits and on the propriety of the tendered instruction, in pertinent part, as follows:

For me, the difficulty here is deciding what, what the line is between common sense arguments that lawyers are entitled to make for the jury based on the evidence, and without any evidence, I can't imagine it wouldn't be appropriate in summing up to talk about give due consideration to inflation, if you want to say it from your side, or your side, give due consideration of the fact that you're making a present award, and it might be appropriate for you to make some discount, since really, the pain and suffering is going to be carried on over a long period of years, if you're going to give an award for that today, you need to make some adjustment for that that would be a fair and appropriate thing to do for the defendant. I can't imagine that that wouldn't be a fair thing to argue.

* * * * * *

I like the analysis. I continue to believe and would allow, I think, in closing argument and in summation, to talk in general terms, but when you add support of the Court to that with a specific instruction that you shall do this or you shall not do this, then that brings it to a new level. And I think, in my judgment, that the support is just not as strong as it needs to be to ask a trial judge to give an instruction like this.

(R. 724-725, 742-743). The trial judge ruled that he would not take judicial notice of the tables and would not permit the Treasury bill rate to be admitted into evidence. Later, the trial court refused to give the tendered instruction to the jury.

I.

The instruction of the jury is a matter primarily entrusted to the discretion of the trial court. Donaldson v. Indianapolis Public Transportation Corp. (1994), Ind.App., 632 N.E.2d 1167, 1171. We will not disturb the decision of the trial court absent an abuse of discretion. Id. On review of the denial of a requested instruction, this Court will find error only if the substance of the instruction is legally correct, if it is supported by the evidence, and if it is not adequately covered by other instructions. Board of County Commissioners v. Arick (1985), Ind.App., 477 N.E.2d 112, 114. The denial, however, is not presumed fatal and will constitute reversible error only when substantial rights have been adversely affected. Id.

Present value has been defined as representing the present value of a sum of money that is to be paid over a period of years, with the discounted award being an amount which would be invested to yield the future sum. Eden United, Inc. v. Short (1995), Ind.App., 653 N.E.2d 126, 135. Although evidence of present value may assist the jury in the determination of a reasonable award, it is not essential to an award of damages. FMC Corp. v. Brown (1988), Ind.App., 526 N.E.2d 719, 731.

Griffin's tendered instruction takes the form of a mandate. The instruction would have required the jury to "award only the present value of such future losses" and would not have allowed the jury to "award damages for future losses that are not reduced to this present value." Inasmuch as evidence of present value is not essential to an award of damages, and Griffin's instruction attempts to make his arguments on present value essential to an award of damages, the substance of the instruction is not legally correct. The refusal of the instruction fell within the discretion of the trial court.

Griffin also claims the trial court should have admitted his exhibits. The trial court allowed Griffin to argue about present value to the jury even though it had refused his mandatory instruction. Griffin claims the exhibits were relevant and would have aided the jury in its determination of damages. In contrast, the Ackers claim that the evidence did not properly account for inflation and that the exhibits would have confused the jury.

Specifically, Griffin contends that the Ackers' argument for specific cash flows into the future is particularly amenable to present value calculations. Although the cash flows did not account for inflation, Griffin contends that the Ackers could have produced evidence of inflation had they chosen to do so. The Ackers contend that Griffin's Treasury bill figure inherently contains an inflation factor, inasmuch as many economists claim the real rate of interest in this country is between 1% and 3%, and that the proper discount rate should exclude inflation in order to conform to their claim for damages.

This Court will not presume to dictate a proper discount rate for present value purposes. We agree with the general statements that present value is a proper consideration in the determination of an appropriate award. See e.g., Eden United, 653 N.E.2d 126; State v. Thompson (1979), 179 Ind.App. 227, 385 N.E.2d 198; Burkhart v. Burkhart (1976), 169 Ind.App. 588, 349 N.E.2d 707. State v. Daley (1972), 153 Ind.App., 330, 287 N.E.2d 552. We also note that an awareness of general inflation and a constant depreciation and cheapening of money lies within the zone of discretion given to the trier of fact in the assessment of damages. Daley, 153 Ind.App. at 337, 287 N.E.2d at 556.

The parties can, of course, agree on the appropriate discount rate. See e.g., I.C. 26-1-2.1-103(1)(u) (commercial leases). Also, a discount rate may be applied where the evidence is essentially undisputed. See Eden United, 653 N.E.2d at 135 (plaintiff-appellee had, in essence, conceded that the appropriate discount rate was 14%). In general, however, the determination of the real interest and inflation rates, as well as the degree to which they combine to produce a particular market rate, are matters best left to the trier of fact. The determination of the proper discount rate "lies within the zone of discretion given to the trier of fact in the assessment of damages." See Daley, 153 Ind.App. at 337, 287 N.E.2d at 556. See 22 Am.Jur.2d Damages § 179 (1988); ...