Grove By and Through Grove v. Myers, 18406
| Decision Date | 09 June 1989 |
| Docket Number | No. 18406,18406 |
| Parties | Jerry GROVE, By and Through James N. GROVE, his Next Friend, and James N. Grove, Individually v. Freda A. MYERS. |
| Court | West Virginia Supreme Court |
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.
2. Under W.Va.Code, 56-6-31, as amended, prejudgment interest on special or liquidated damages is calculated from the date on which the cause of action accrued, which in a personal injury action is, ordinarily, when the injury is inflicted.
3. Under W.Va.Code, 56-6-31, as amended, prejudgment interest is to be recovered on special or liquidated damages incurred by the time of the trial, whether or not the injured party has by then paid for the same. If there is sufficient evidence to demonstrate that the injured party is obligated to pay for medical or other expenses incurred by the time of the trial, and if the amount of such expenses is certain or reasonably ascertainable, prejudgment interest on those expenses is to be recovered from the date the cause of action accrued.
4. "In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." Syl. pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).
5. A prevailing plaintiff in a personal injury or wrongful death action is not entitled to recover in that action his or her reasonable attorney's fees from the defendant's liability insurer for its alleged failure to negotiate a settlement in good faith.
Laura R. Tew, Greenberg & Tew, Martinsburg, for Jerry Grove, et al., etc.
Gray Silver, III, Avey & Steptoe, Martinsburg, for Freda A. Myers.
This appeal presents us with the opportunity to decide the proper method of handling prejudgment interest in a personal injury case and whether a prevailing plaintiff in such a case is entitled to recover in that case his or her reasonable attorney's fees from the defendant's liability insurer for its alleged failure to negotiate a settlement in good faith. This appeal also presents a question of whether the general damages awarded were inadequate. For the reasons hereinafter stated, we affirm the trial court's final order in part and reverse the same in part and remand this case with directions.
Jerry L. Grove, one of the appellants, was injured in June, 1984, when his bicycle collided with an automobile driven by the appellee, Freda A. Myers. He was twelve years old at the time of the collision. The collision caused a broken femur (thigh bone) in his left leg. The injured child was rendered unconscious soon after the collision. Immediately after the collision he remained in the hospital for three weeks, during the first two of which he was immobile while in traction. After this initial two-week period a steel plate was surgically implanted into his femur, and after this surgery he remained in the hospital for another week.
After he was released from the hospital Jerry walked with crutches for eight weeks. His older brother carried him up and down the stairs at his residence so that the injured child could use the bathroom. During this eight-week period on crutches, which was in the midst of summer, Jerry could not play ball, swim or otherwise play outside. During the first six weeks of school in the ensuing school year, he could not take gym class or play contact sports. After this last six-week period, the injured child was able to walk without crutches.
Not long thereafter the steel plate was surgically removed from Jerry's left thigh bone. He was in the hospital for two days for this second surgical operation. About a month after the second surgery his condition was back to normal--with no pain--except for a surgical incision scar on his left thigh approximately twelve inches in length and one and a half inches in width. He was sensitive about the scar, and other boys in gym class had made remarks about the scar as being "sick looking." There are no projected future medical problems associated with the broken femur.
Affidavits and counter-affidavits submitted after the trial indicate the following: Jerry's father, James N. Grove, one of the appellants, shortly after the accident contacted a sales agent of Nationwide Mutual Insurance Company, the appellee's automobile liability insurer. According to the appellants, the sales agent informed James Grove that Nationwide was denying liability for the appellee on the ground that the appellee was not negligent. The sales agent, however, denied making this statement, for he recognized that he as a sales agent had no authority to make such a statement for Nationwide. An adjuster with Nationwide contacted James Grove within two weeks after the accident. Mr. Grove told the adjuster that he was too busy to talk then and suggested calling back the next day. When the adjuster called back the next day, Mr. Grove informed the adjuster that Mr. Grove had retained an attorney and that the adjuster would have to talk to him.
The appellants' attorney subsequently demanded $37,500 to settle the case. Nationwide's adjuster countered with an offer of $12,000. Mr. Grove's hospital and physician's bills totalled $11,091.42, without interest, and Nationwide's investigation indicated that Jerry Grove's bicycle struck the appellee's car, not vice versa. The appellants immediately thereafter filed their complaint in this action. Nationwide then directed its attorney to withdraw the $12,000 settlement offer, purportedly to acknowledge that the appellants had rejected that offer by filing this action. The appellants over a year later communicated their increased demand of $49,500 to settle the case. Relying upon the discovery deposition of Jerry Grove, indicating, in Nationwide's opinion, his fault, Nationwide reduced its offer to settle to $5,000.
About two weeks prior to trial, the appellants offered to settle for $40,000, and Nationwide increased its settlement offer to $15,000. On the day before trial the appellants' attorney showed Nationwide's attorney photographs of Jerry Grove's scar for the first time. Two hours later Nationwide increased its settlement offer to $20,000, which the appellants refused and countered with a demand of $30,000. Nationwide refused that demand and the case went to trial.
At trial, in June, 1987, the plaintiffs/appellants offered their instruction no. 18a, which required the jury to award prejudgment interest on any part of the verdict consisting of special damages or liquidated damages. 1 The trial court believed that the mandatory language of this instruction ("shall") was erroneous and refused to give the same. Given no alternative, the plaintiffs/appellants offered their instruction no. 18b, which authorized the jury, in its discretion, to award prejudgment interest on special damages or liquidated damages. The trial court gave the plaintiffs' instruction no. 18b containing the permissive language ("may"). 2
The jury returned a verdict finding the appellee 100% at fault for the appellants' damages. 3 James Grove was awarded the full amount of his medical bills, $11,091.42, without interest, and Jerry Grove was awarded $6,000 in general damages, consisting of $3,000 for past pain and suffering and $3,000 for scarring.
Jerry's father, James Grove, was unemployed during this litigation and none of the medical bills had been paid by the time of the trial. After deducting from the $6,000 award for general damages, the costs of litigation of $1,867.06 (medical expert's fee and deposition transcript fees) and a one-third contingency fee for the appellants' counsel of $5,697.14, Jerry Grove is left with a deficit amount of $1,564.20 for his pain and suffering and scarring.
The appellants moved for a new trial or, in the alternative, for a reasonable attorney's fee from Nationwide, raising the same issues raised here. The Circuit Court of Berkeley County ("the trial court") denied these motions. The trial court held: (1) it was within the jury's discretion to award prejudgment interest on the medical bills; (2) the damages awarded were not clearly inadequate; and (3) Nationwide was not responsible for the appellants' reasonable attorney's fee because it had attempted to negotiate a settlement in good faith.
On appeal the appellants challenge each of these three holdings.
W.Va.Code, 56-6-31 [1981] provides, in part, for the addition of prejudgment interest at the annual rate of ten percent on an award of special damages or liquidated damages. The term "special damages" is defined in that statute to include "medical expenses ... and similar out-of-pocket expenditures, as determined by the court." (emphasis added) Under that statute, "special or liquidated damages shall bear interest from the date the right to bring [an action for] the same shall have accrued, as determined by the court." (emphasis added) 4 The appellants argue that an award of prejudgment interest under this statute is mandatory. We agree.
W.Va.Code, 56-6-31 [1981] uses mandatory language: "[S]pecial or liquidated damages shall bear interest[.]" "Shall" generally should be read as requiring action. Weimer-Godwin v. Board of Education, 179 W.Va. 423, 427, 369 S.E.2d 726, 730 (1988), citing Manchin v. Browning, 170 W.Va. 779, 785, 296 S.E.2d 909, 915 (1982). Other courts deciding this issue under similar statutes have held that prejudgment interest must be added to the damages recovered. Specifically, prejudgment interest is recoverable, not as a matter of discretion, but as a matter of right, that is, as a matter of law, in personal injury and wrongful death actions, unless the statute or court rule in question provides otherwise. See State...
To continue reading
Request your trial
-
Hensley v. West Virginia DHHR, 25020.
...calculation of prejudgment interest is within the sound discretion of the trial court. Citing Grove by and through Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989). Thus, [i]n awarding prejudgment interest it is appropriate for the Court to allow prejudgment interest at such a rate as w......
-
Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc.
...731 (1988). Prejudgment interest should be calculated from the date on which the cause of action accrued. See Syllabus Point 2, Grove v. Myers, 181 W.Va.342, 382 S.E.2d 536 (1989). Although from the record before us, it is difficult to pinpoint the precise date when the cause of action aros......
-
Pasquale v. Ohio Power Co.
...by the time of the trial, whether or not the injured party has by then paid for the same." Syllabus Point 3, in part, Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989). 15. Future wage loss, accruing after the jury verdict, is not a prejudgment loss or special damage under W.Va.Code, 56-......
-
City Nat. Bank of Charleston v. Wells
...loss, is to fully compensate the injured party for the loss of the use of funds that have been expended." See Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989); Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127, cert. denied, 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985); ......