Kauzlarich v. Atchison, Topeka, and Santa Fe Ry. Co.

• Decision Date: 21 November 1995
• Docket Number: No. 77771,77771
• Parties: Steven O. KAUZLARICH, Respondent, v. The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

Page 254

910 S.W.2d 254

Steven O. KAUZLARICH, Respondent, v. The ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY, Appellant.

No. 77771.

Supreme Court of Missouri,

En Banc.

Nov. 21, 1995.

Rehearing Denied Dec. 19, 1995.

R.B. Miller, III, Jeffrey P. Ray, Kansas City, for Appellant.

David L. Blunt, John H. Leskera, St. Louis, for Respondent.

COVINGTON, Judge.

Atchison, Topeka and Santa Fe Railroad Co. (Santa Fe) appeals a trial court judgment entered after a jury verdict awarding Steven O. Kauzlarich (Kauzlarich) $1,500,000 in damages under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1988) ("FELA" or "Act"). After the trial court denied Santa Fe's motion for new trial and alternative motion for remittitur, Santa Fe appealed. The Missouri Court of Appeals, Western District, affirmed. This Court granted transfer to decide whether the trial court erred in refusing to give Santa Fe's proffered instruction on mitigation of damages. The judgment of the trial court is reversed and the cause is remanded for a new trial on damages.

On October 6, 1990, Kauzlarich was injured while employed as a rear brakeman for Santa Fe. Shortly after Kauzlarich boarded a stationary engine in Santa Fe's Argentine, Kansas, yard, a second moving Santa Fe train hit the engine, throwing Kauzlarich to the floor. He suffered head and neck injuries. Kauzlarich never returned to his position as a brakeman. Except for a brief period when he attempted to train for a Santa Fe management position, he did not again return as an employee of Santa Fe.

On April 9, 1991, Kauzlarich commenced this action against Santa Fe asserting a claim for personal injury under the FELA. Five days before trial, Santa Fe filed an amended answer admitting liability and asserting an affirmative defense based on Kauzlarich's duty to mitigate damages. The case proceeded to trial solely on the issue of damages.

Following a five day jury trial, the court entered judgment on the jury's verdict awarding Kauzlarich $1,500,000 in damages. The trial court denied Santa Fe's motions for a new trial and for remittitur. Santa Fe raised five points on appeal, and the court of appeals affirmed. In its briefs before this Court, Santa Fe raised only the mitigation of damage instruction issue; therefore, that point remains the sole point on appeal. Rule 83.08.

When adjudicating FELA cases, a state court is bound by federal substantive law. St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1349, 84 L.Ed.2d 303 (1985). It is generally held that, in light of the remedial purpose of the FELA, the Act must be liberally construed in favor of the injured employee. E.g., Green v. River Terminal Ry., 763 F.2d 805, 806 (6th Cir.1985). A plaintiff, however, is not entitled to recover all of his or her lost future earnings. The employee may recover only the "difference between what he was able to earn before the injury and what he earned or could have earned thereafter." Holley v. Missouri Pacific R.R., 867 S.W.2d 610, 615 (Mo.App.1993) (citing Trejo v. Denver & Rio Grande Western R.R., 568 F.2d 181, 184 (10th Cir.1977)). An injured employee suing under the FELA has a duty to mitigate his or her damages by returning to gainful employment as soon as reasonably possible. Hawkes v. Norfolk & Western Ry., 876 S.W.2d 705, 706 (Mo.App.1994). Loss of wages as a consequence of the failure to return to gainful employment is the employee's choice, rather than a proximate result of the defendant's conduct. Holley, 867 S.W.2d at 615. A claim that the plaintiff failed to mitigate his or her damages is an affirmative defense; therefore, the burden of demonstrating that the plaintiff's damages were lessened or might have been lessened falls on the defendant employer. Jones v. Consolidated Rail Corp., 800 F.2d 590, 593 (6th Cir.1986). Whether the conduct of a plaintiff constitutes a reasonable effort to mitigate damages is a question of fact for the jury under proper instruction. Trejo, 568 F.2d at 184.

At the conclusion of all the evidence, Santa Fe tendered Instruction H:

With respect to any claimed loss of earnings, if you believe that plaintiff failed to act as an ordinarily prudent person and failed to minimize his damages, you must not award plaintiff such damages as might have been prevented by reasonable efforts on his part. ¹

The trial court rejected Instruction H because it was not in the Missouri Approved Jury Instructions (MAI). Instead, the jury was instructed on the issue of damages only by a modified version of MAI No. 8.02, which read:

In assessing damages for plaintiff, you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a result of the occurrence mentioned in the evidence. Any award of future pecuniary damages must not be included at present value. Any award you make is not subject to income tax.

In support of the trial court's rejection of instruction H, Kauzlarich does not contend that an instruction not in MAI must be refused; rather, he asserts that the question of mitigation of his damages is adequately submitted to the jury by MAI 8.02, as modified.

Ten years ago, with Missouri parties before it, the United States Supreme Court addressed a similar issue in the context of the FELA. In St. Louis Southwestern Ry. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985), the trial court had refused to submit to the jury an instruction proposed by the defendant explaining that any future losses awarded to the plaintiff must be reduced to present value. As in the present case, the trial court's refusal was based solely on the fact that "such an instruction was not provided for in [MAI] promulgated by the Supreme Court of Missouri for use in FELA cases." Id. at 410, 105 S.Ct. at 1348. The submitted jury instruction on damages was limited to a modification of MAI 8.02. Id. The Missouri Court of Appeals, Eastern District, had affirmed the trial court's refusal, holding that a present value instruction is not appropriate under MAI. Dickerson v. St. Louis Southwestern Ry., 674 S.W.2d 165, 169-70 (Mo.App.1984), rev'd, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). The court of appeals' ruling purported to follow an earlier opinion of this Court, which held that MAI does not call for a present value instruction in FELA cases, so no instruction should be given. Id.; see Bair v. St. Louis-San Francisco Ry., 647 S.W.2d 507, 510 (Mo. banc) cert. denied, 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109 (1983); Accord Dunn v. St. Louis-San Francisco Ry., 621 S.W.2d 245, 253 (Mo. banc 1981) cert. denied, 454 U.S. 1145, 102 S.Ct. 1007, 71 L.Ed.2d 298 (1982).

The United States Supreme Court reversed the trial court's judgment and stated:

As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. Although the Court's decisions in this area "point up the impossibility of laying down a precise rule to distinguish 'substance' from 'procedure,' " Brown v. Western R. of Alabama, 338 U.S. 294, 296 [70 S.Ct. 105, 106, 94 L.Ed. 100] (1949), it is settled that the propriety of jury instructions concerning the measure of damages in an FELA action is an issue of "substance" determined by federal law. Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 493 [100 S.Ct. 755, 757, 62 L.Ed.2d 689] (1980). Accordingly, petitioner's contention that it was entitled to a jury instruction on present value cannot be dismissed on the ground that such an instruction is not to be found in [MAI]. Whether such an instruction should have been given is a federal question.

Dickerson, 470 U.S. at 411, 105 S.Ct. at 1348 (emphasis added).

The Dickerson court then noted that existing federal law clearly provided that when future payments or other pecuniary benefits are anticipated, the verdict should be made up on the basis of their present value only, Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916), and a defendant in an FELA case is entitled to have the jury so instructed. Dickerson, 470 U.S. at 412, 105 S.Ct. at 1348. The Court held that the Missouri court's failure to instruct the jury that present value is the proper measure of a damage award was error, being at odds with federal law. Dickerson, 470 U.S. at 412, 105 S.Ct. at 1348.

The question of whether Santa Fe is entitled to a separate mitigation of damages instruction, then, requires a determination of whether the issue of mitigation of damages in an FELA case is a substantive matter under federal law so as to require the trial court to submit it. This Court finds that it is. It is well settled that an FELA plaintiff is entitled to recover the difference between what he or she was able to earn before the injury and what he or she earned or could have earned after the injury. Bissett v. Burlington N. R.R., 969 F.2d 727, 731 (8th Cir.1992); Trejo, 568 F.2d at 184. In Trejo, trial testimony indicated that the plaintiff's only efforts to secure alternative employment were to ask the defendant employer, as well as his union, for light work. Because his request of the defendant was denied, the trial court refused to submit to the jury the defendant's mitigation instruction. Trejo, 568 F.2d at 184. On appeal, the plaintiff argued that he was unemployable as a matter of law; therefore, the trial court was correct in not instructing the jury on his duty to mitigate. Id. The United States Court of Appeals, Tenth Circuit, stating the basic rule that "[a] party is entitled to an instruction based on his theory of the case if there is record evidence to support it," held that the refusal to give a requested mitigation of damage instruction was error. Id. By producing evidence regarding the plaintiff's lack of effort to secure work after his injury, the defendant...