McCormack v. Capital Elec. Const. Co., Inc.

• Decision Date: 21 December 2004
• Docket Number: No. WD 62976, No. WD 62975, No. WD 63004.
• Citation: 159 S.W.3d 387
• Parties: Virgil A. McCORMACK and Sandra McCormack, Appellant-Respondents, v. CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC., Respondent-Appellant.
• Court: Missouri Court of Appeals

159 S.W.3d 387

Virgil A. McCORMACK and Sandra McCormack, Appellant-Respondents, v. CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC., Respondent-Appellant.

Nos. WD 62975, WD 62976, WD 63004.

Missouri Court of Appeals, Western District.

December 21, 2004.

Motion for Rehearing and/or Transfer Denied March 1, 2005.

Application for Transfer Denied April 26, 2005.

Edward D. Robertson, Jr., Jefferson City, MO, Grant L. Davis, Kansas City, MO, for Appellant-Respondent.

Patrick Lysaught, Kansas City, MO, for Respondent-Appellant.

Before: SPINDEN, P.J., HOLLIGER and HARDWICK, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.

LISA WHITE HARDWICK, Judge.

This appeal arises from a jury verdict awarding Virgil and Sandra McCormack $30.4 million dollars on negligence and loss of consortium claims against Capital Electric Construction Company, Inc. The McCormacks accepted remittitur of the verdict to $8.9 million and now appeal the trial court's denial of prejudgment interest. Capital appeals the denial of its motion for new trial. In a cross-appeal, the McCormacks challenge the remittitur.

We reverse the denial of prejudgment interest on Mr. McCormack's damage award and affirm on the remaining points.

I. FACTUAL AND PROCEDURAL HISTORY

Virgil McCormack suffered an electrical shock and was seriously injured on December 13, 1995, while working as a carpenter on a construction project at the Marion Merrell Dow offices in Kansas City. The shock occurred when he came into contact with an uncapped 277-volt live electrical wire as he stood on a metal scaffold taking drywall measurements. Mr. McCormack had few immediate symptoms from the electrical shock, other than fatigue and initial confusion. Two weeks later, he began having seizures and his symptoms eventually progressed to pain in his chest, hips and shoulders, migraines, impaired concentration, numbness, loss of motor control, and problems with his balance and gait.

In September 1998, Mr. McCormack filed a negligence claim against Capital, the electrical subcontractor on the construction project. His wife filed a claim for loss of consortium. At trial, the jury found Mr. McCormack was 92% at fault for the electrical shock incident and awarded him damages of $256,000. The jury found against Mrs. McCormack on her loss of consortium claim.

The McCormacks filed a motion for new trial, asserting the verdict was against the weight of the evidence. The trial court granted the motion, and the new trial was affirmed on appeal. McCormack v. Capital Elec. Constr. Co., 35 S.W.3d 410 (Mo.App.2000).

A second jury trial was held in February 2003. The jury returned a verdict for the McCormacks, assessing 100% fault against Capital. Compensatory damages of $28.8 million were awarded on Mr. McCormack's negligence claim and $1.6 million for Mrs. McCormack's loss of consortium. The court's judgment included an award of prejudgment interest.

Capital filed a motion for new trial or, alternatively, for remittitur and sought to amend the judgment to disallow prejudgment interest. After extensive briefing by the parties, the court determined the total verdict was excessive and ordered a new trial unless the McCormacks agreed to a remittitur of the negligence award to $7.7 million and the loss of consortium award to $1.2 million. The court also amended the judgment to deny prejudgment interest.

The McCormacks agreed to the remittitur and appealed the denial of prejudgment interest. Capital filed a separate appeal of the denial of the new trial motion, and the McCormacks cross-appealed the remittitur pursuant to Rule 78.10¹. After consolidating the appeals, this court transferred the case to the Supreme Court in light of a constitutional challenge to the remittitur statute, as raised by the McCormacks. The Supreme Court granted Capital's motion for remand and retransferred the consolidated case to this court for full determination.

II. ISSUES ON APPEAL

A. Remittitur

Both parties raise several issues challenging the remittitur of the jury's $30.4 million compensatory damages verdict to $8.9 million. Capital contends a new trial, rather than remittitur, was required because plaintiff's counsel presented improper evidence and closing arguments that prejudiced the jury to render an excessive verdict. Capital further argues that Rule 78.02² is unconstitutional and should not preclude this court from ordering a new trial. The McCormacks argue the remittitur was improper because: (1) the trial court applied the wrong standard of uniformity; (2) the jury's verdict was not excessive or against the weight of the evidence; and (3) the trial court's application of the remittitur statute violated their constitutional right to a jury trial.

1. APPLICABLE LAW

Section 537.068³ allows a court to order remittitur upon a finding that the jury's verdict is excessive because it "exceeds fair and reasonable compensation for plaintiff's injuries and damages." One of the purposes of the doctrine of remittitur is to promote judicial economy by avoiding the delay and additional expense of a new trial. Ince v. Money's Bldg. & Dev., Inc., 135 S.W.3d 475, 479 (Mo.App.2004). Thus, when the amount of damages is the sole error, an appellate court should offer the plaintiff the option of accepting judgment for the proper sum and avoid further litigation. Id.

Excessive verdicts generally arise in two situations: (1) when the jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awarding disproportionate damages; and (2) when the jury is biased by trial misconduct to award grossly excessive damages. Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 655 (Mo.App.1997); Ince, 135 S.W.3d at 478. A disproportionate verdict resulting from the jury's honest mistake can be corrected by remittitur and does not require a retrial. Barnett, 963 S.W.2d at 655. An excessive verdict engendered by misconduct and jury bias is prejudiced and can only be remedied with a new trial. Id.

The assessment of damages is primarily a function for the jury. Messina v. Prather, 42 S.W.3d 753, 760 (Mo.App.2001). The trial court's reduction of the award by remittitur constitutes a discretionary ruling on the evidence. Fust v. Francois, 913 S.W.2d 38, 49 (Mo.App.1995). An abuse of discretion occurs when a verdict or remitted judgment is so grossly excessive as to shock the conscience of the appellate court. Id.; Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 249 (Mo. banc 2001). The appellate court should exercise its power to interfere with the judgment of the jury and trial court with hesitation and only when the verdict is manifestly unjust. Alcorn, 50 S.W.3d at 249-50.

There is no precise formula for determining whether a verdict is excessive, but courts typically evaluate the reasonableness of compensatory damages based on the following factors: (1) loss of income, both present and future; (2) medical expenses; (3) plaintiff's age; (4) the nature and extent of plaintiff's injuries; (5) economic considerations; (6) awards approved in comparable cases; and (7) the superior opportunity for the jury and the trial court to evaluate plaintiff's injuries and other damage. Messina, 42 S.W.3d at 760-61. Compensatory damages may also be based on intangibles that cannot be easily calculated, such as past and future pain, suffering, effect on lifestyle, and embarrassment. Alcorn, 50 S.W.3d at 250. In considering these factors on appeal, we view the evidence in a light most favorable to the judgment and disregard all unfavorable evidence. Ince, 135 S.W.3d at 479. Each case must be considered on its own facts, with the ultimate test being what amount fairly and reasonably compensates the injured party. Id.

2. TRIAL COURT PROCEEDING

Viewed in a light most favorable to the judgment, the evidence at the second jury trial was as follows. At the time of the electrical shock incident in December 1995, Mr. McCormack was a healthy, 39-year old carpenter who had enjoyed fishing and spending time with his family. He suffered only fatigue and confusion immediately following the shock but, within two weeks, began to experience seizure-like "spells." The spells worsened to a point where he had at least two grand-mal seizures, causing a loss of control over his bladder and bowels. He developed chronic pain in his chest, hips, and shoulders, as well as migraine headaches, impaired concentration, and confusion. He walked with a cane due to problems with his balance and gait. He complained of facial numbness, loss of motor control, and difficulty thinking of words. With regard to Mr. McCormack's condition in the months and years after the shock incident, his friends and family described him as mentally and physically "very slow" and "in a fog."

Mr. McCormack presented testimony from eleven medical providers concerning his seven-year history of treatment for the injuries resulting from the electrical shock. Experts concluded that he suffered "diffuse brain damage" that left him with a cognitive deficit and substantially decreased his I.Q. Test results confirmed that he had memory loss, impaired concentration and verbal fluency, and psychomotor retardation. The electrical injury produced a permanent chemical change in his brain that caused depression, dementia, and rendered him sexually dysfunctional. He was unable to drive due to prescribed medications necessary to control his seizures.

Mr. McCormack's physicians and experts testified that he is permanently disabled and unemployable as a result of his mental and physical injuries. They agreed his condition will likely worsen over time because the symptoms of electrical injuries are often delayed and progressive. An economist testified that if Mr. McCormack had not been injured, he would have had lifetime earnings of approximately $1.4 million based on his life expectancy and average yearly income as a carpenter prior to the...