Kenney v. Liston, 13-0427

CourtSupreme Court of West Virginia
Writing for the CourtKetchum
Docket NumberNo. 13-0427,13-0427
PartiesJOHN N. KENNEY, Defendant, Petitioner v. SAMUEL C. LISTON, Plaintiff, Respondent
Decision Date04 June 2014

JOHN N. KENNEY, Defendant, Petitioner
SAMUEL C. LISTON, Plaintiff, Respondent

No. 13-0427


January 2014 Term
Submitted: April 9, 2014
Filed: June 4, 2014

Appeal from the Circuit Court of Monongalia County
The Honorable Susan B. Tucker, Judge
Civil Action No. 11-C-102


Tiffany R. Durst, Esq.
Nathaniel D. Griffith, Esq.
Pullin, Fowler, Flanagan,
Brown & Poe, PLLC
Morgantown, West Virginia
Counsel for the Petitioner

James G. Bordas, Esq.
Scott S. Blass, Esq.
Bordas & Bordas, PLLC
Wheeling, West Virginia
Chad S. Lovejoy, Esq.
Duffield, Lovejoy, Stemple & Boggs, PLLC
Huntington, West Virginia

J. Bryan Edwards, Esq.
Paul R. Cranston, Esq.
Cranston & Edwards, PLLC
Morgantown, West Virginia
Counsel for the Respondent

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Counsel for Amicus Curiae
West Virginia Association for Justice

JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.

JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.

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1. "The collateral source rule excludes payments from other sources to plaintiffs from being used to reduce damage awards imposed upon culpable defendants." Syllabus Point 11, Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983).

2. The collateral source rule protects payments made to or benefits conferred upon an injured party from sources other than the tortfeasor by denying the tortfeasor any corresponding offset or credit against the injured party's damages. Even though these collateral sources mitigate the injured party's loss, they do not reduce the tortfeasor's liability.

3. "The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party." Syllabus Point 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).

4. The rule that collateral source benefits are not subtracted from a plaintiff's recovery applies to proceeds or benefits from sources such as insurance policies, whether maintained by the plaintiff or a third party; employment benefits; services or benefits rendered gratuitously (whether free, discounted, or later written off); and social legislation benefits. The law does not differentiate between the nature of these collateral source benefits, so long as they did not come from the defendant or a person acting for the defendant.

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5. "An injured person is entitled to recover damages for reasonable and necessary nursing services rendered to him, whether such services are rendered gratuitously or paid for by another." Syllabus Point 5, Kretzer v. Moses Pontiac Sales, Inc., 157 W.Va. 600, 201 S.E.2d 275 (1973).

6. A person who has been injured by the tortious conduct of a culpable tortfeasor is entitled to recover from the tortfeasor the reasonable value of medical and nursing services necessarily required by the injury. This recovery is for the reasonable value of the services and not for the expenditures actually made or obligations incurred.

7. Where an injured person's health care provider agrees to reduce, discount or write off a portion of the person's medical bill, the collateral source rule permits the person to recover the entire reasonable value of the medical services necessarily required by the injury. The tortfeasor is not entitled to receive the benefit of the reduced, discounted or written-off amount.

8. "The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties." Syllabus Point 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995)

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Justice Ketchum:

In this appeal from the Circuit Court of Monongalia County, we are asked to examine a jury's award of compensatory and punitive damages in a car wreck caused by a drunk driver. The driver - the defendant - caused serious injuries to the plaintiff.

The defendant's appeal challenges the collateral source rule. The defendant's appeal also asserts that the circuit court erred in allowing certain evidence at trial and in giving a limiting instruction pertaining to the defendant's assets in the punitive damage phase of the trial.

After careful consideration of the record, oral argument, and the briefs of the parties and amicus curiae,1 we affirm the jury's award of compensatory and punitive damages.


On April 6, 2010, plaintiff Samuel C. Liston was a passenger in a vehicle sitting at a stoplight. Defendant John N. Kenney slammed his car into the rear end of the plaintiff's vehicle. The defendant did not brake before the collision, and the force of the impact broke the seat in which the plaintiff was sitting. The defendant had previously consumed a number of alcoholic beverages, and an hour after the collision his blood

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alcohol was measured at .328, over four times the legal limit. He later pleaded no contest to first-offense driving under the influence.

The plaintiff suffered serious, permanent, painful injuries to his spine in the collision, and brought suit against the defendant for his injuries. The defendant admitted that he was solely liable for the collision, and the case was bifurcated into a two-phase damages trial. The first phase was to determine the amount of the plaintiff's compensatory damages; the second phase was to determine whether and to what extent the defendant should pay punitive damages.

As a result of the collision, the plaintiff incurred medical bills in excess of $70,000.00. West Virginia law permits a plaintiff to recover the necessary and reasonable medical expenses for an injury from a tortfeasor. Proof that a medical bill was incurred is prima facie evidence the expense was necessary and reasonable.2 The plaintiff therefore sought to recover the entire billed amount as his necessary and reasonable medical expenses.

Prior to trial, the defendant filed a motion in limine and asserted that only a portion of each medical bill had been paid, either by the plaintiff (as co-pays or deductibles) or by the plaintiff's health insurance carrier (Blue Cross/Blue Shield). By an agreement between the plaintiff's medical providers and his health insurance carrier, the medical bills were discounted, reduced, or adjusted downward. Because of the

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agreement with the health insurance carrier, the remaining, unpaid portions of the medical bills were "written off" by the plaintiff's medical providers.

The defendant asserted that the plaintiff's damages "should be limited to the amounts actually paid by Plaintiff . . . and amounts paid on Plaintiff's behalf by any collateral source," such as the plaintiff's health insurance carrier. The defendant argued to the circuit court that the value of the medical bills before reduction was not paid by either the plaintiff or his health insurance carrier. Further, because of health insurance, the value of the medical bills was not an obligation that the plaintiff was expected to pay. The defendant contends that since the full bills were neither paid nor actually incurred by the plaintiff or the plaintiff's health insurance carrier, the plaintiff should not be allowed to introduce evidence of those written-off amounts at trial.

The circuit court denied the defendant's motion in limine because the discounts or write-offs were a collateral source to the plaintiff. The circuit court reasoned that under the collateral source rule, the plaintiff was entitled to recover damages for the value of any reasonable and necessary medical services he received, "whether such services are rendered gratuitously or paid for by another."3 Further, the circuit court noted that the plaintiff was entitled to recover the value of medical services rendered to the plaintiff irrespective of "the expenditures actually made or obligations incurred."4

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Because of the collateral source rule, and because the evidence would tend to be misleading and prejudicial, the circuit court prevented the defendant from offering any evidence that the bills for the plaintiff's medical services were either reduced by the provider or paid by the health insurer at a discounted rate.

On September 21, 2012, the jury returned a verdict in the first phase of the bifurcated trial. The jury awarded the plaintiff compensatory damages totaling $325,272.92. The verdict included $74,061.00 for the plaintiff's past medical expenses, an amount almost equal to the total amount of the plaintiff's medical bills.5

After receiving the jury's compensatory damage verdict, the circuit court held a punitive damage trial. Counsel for the defense told the jury in opening statement that the defendant was impoverished and unable to pay any punitive damage verdict. During plaintiff's direct examination of the defendant, plaintiff's counsel properly countered the defense's...

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