Kay v. Hanover Ins. Co., 7708
| Decision Date | 14 June 1996 |
| Docket Number | Docket No. A,No. 7708,7708 |
| Parties | Edwin KAY et al. v. HANOVER INSURANCE COMPANY et al. DecisionLawnd 95 690. |
| Court | Maine Supreme Court |
Michael J. Welch (orally), Hardy Wolf & Downing, P.A., Lewiston, for Plaintiffs.
Gerard O. Fournier (orally), Isaacson, Raymond & Bonneau, P.A., Lewiston, for Defendants.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Hanover Insurance Company appeals from the judgment entered in the Superior Court (Androscoggin County, Calkins, J.) on a jury verdict awarding damages to Edwin Kay and Arvilla Kay on their complaint against, inter alia, Hanover for injuries suffered as a result of an automobile accident involving Edwin. Hanover contends that the trial court's admission of certain medical testimony proffered by the Kays is reversible error and that the evidence submitted to the jury is insufficient to support its verdict. We affirm the judgment.
The record reveals the following undisputed facts: On December 3, 1991, while operating a truck owned by his employer, Edwin was involved in a collision with a vehicle operated by Eric Prescott, causing Edwin's right foot to become lodged under the brake pedal of the truck. At the time of the accident Edwin was 65 years of age and an insulin-dependent diabetic suffering from neuropathy and ischemia. 1 Although Edwin neither experienced nor reported any pain immediately after the accident, several days later he began experiencing discomfort "mostly on the bottom" of his right foot. On December 12, 1991, during a routine, pre-scheduled appointment with his podiatrist, Maurice Gardner, Edwin complained of pain in his right ankle. Gardner observed no cuts, abrasions or swelling of the ankle or right foot, and an x-ray revealed no dislocation or fracture. An x-ray would not reveal a soft tissue injury. Throughout the remainder of December, Edwin continued to work as a part-time courier and an occasional assistant at his son's car wash business. On approximately January 1, 1992, Edwin noticed a break in the skin on the bottom of his right foot and experienced a continuing temperature elevation and "flu-like" symptoms, which he reported to Gardner on January 7. Gardner's examination on that date revealed "a cut and very shallow sore" at the base of the fifth metatarsal bone of Edwin's right foot and that the foot had swollen to the "size of a football." Edwin was referred to Roger Austin, an internist who had treated Edwin since 1981. Austin observed the break in the skin on the bottom of Edwin's right foot, the swelling of the foot and a great deal of redness extending over the top of the foot. It was determined Edwin was suffering from a gangrenous infection of the right foot necessitating the amputation of his right leg below the knee.
By their complaint against Eric Prescott, Hanover Insurance Company and Peerless Insurance Company, the Kays sought damages for the injuries proximately caused by the December 3 accident. With the consent of all parties, Prescott, who had insurance in the amount of $20,000, was dismissed as a party defendant. It was also agreed that if Prescott was found legally responsible for proximately causing the plaintiffs' injuries, Hanover and Peerless, up to the limits of their respective underinsured motorists coverage, would be responsible for any judgment in favor of the plaintiffs in excess of $20,000. It was further stipulated that Hanover, the insurer of the vehicle operated by Edwin, had the primary underinsured motorists policy in the amount of $500,000, and that Peerless, the insurer of the Kays' vehicle, would provide underinsured motorists coverage only for damages in excess of the Hanover policy. Following the jury verdict awarding damages to the plaintiffs in the amount of $175,000, a judgment was entered in favor of the plaintiffs against Hanover in the amount of $155,000, plus interest and costs, and in favor of Peerless. Hanover appeals.
The primary issue in this case focused on whether the trauma sustained from the December 3 vehicular collision caused the gangrenous infection that necessitated the amputation of Edwin's right lower leg. Hanover does not challenge the qualifications of the Kays' medical expert, David R. Campbell, a vascular surgeon with a clinical practice that includes a high percentage of diabetics. Rather, Hanover contends that, over its objection, it was reversible error for the trial...
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