Reed v. Wimmer
| Decision Date | 27 October 1995 |
| Docket Number | No. 22705,22705 |
| Citation | 465 S.E.2d 199,195 W.Va. 199 |
| Court | West Virginia Supreme Court |
| Parties | Danny REED and Sonya Reed, Plaintiffs Below, Appellees, v. Kathy L. WIMMER, Defendant Below, Appellant. |
1. Syllabus Point 7, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
2. An insured is presumed to be protected from undue prejudice from the admission of evidence of insurance at trial if the following requirements are met: (1) the evidence of insurance was offered for a specific purpose other than to prove negligence or wrongful conduct; (2) the evidence was relevant; (3) the trial court made an on-the-record determination under Rule 403 of the West Virginia Rules of Evidence that the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice; and (4) the trial court delivered a limiting instruction advising the jury of the specific purpose(s) for which the evidence may be used.
3. Where evidence of insurance is wrongfully injected at a trial, its prejudicial effect will be determined by applying the standard set out in Rule 103(a) of the West Virginia Rules of Evidence. In addition to the possibility that the jurors are already aware of the existence of insurance, the trial court should consider the relative strength of each of the parties case or the lack of it, whether the jury was urged by counsel or the witness to consider insurance in deciding the issue of negligence or damages, whether the injection of insurance was designed to prejudice the jury, whether the mention of insurance was in disregard of a previous order, and whether a curative instruction can effectively dissipate any resulting prejudice.
4. Before a verdict may be reversed on the basis of excessiveness, the trial court must make a detailed appraisal of the evidence bearing on damages. Because the verdict below is entitled to considerable deference, an appellate court should decline to 5. "To warrant a recovery for future medical expenses, the proper measure of damages is not simply the expenses or liability which shall or may be incurred in the future but it is, rather, the reasonable value of medical services as will probably be necessarily incurred by reason of the permanent effects of a party's injuries." Syllabus Point 15, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
[195 W.Va. 202] disturb a trial court's award of damages on appeal as long as that award is supported by some competent, credible evidence going to all essential elements of the award.
Derek Craig Swope, William B. Flanigan, Sanders, Austin, Swope & Flanigan, Princeton, for Appellees.
Maria Marino Potter, McQueen & Brown, Charleston, for Appellant.
In this personal injury action, Kathy L. Wimmer, the defendant below and appellant herein, appeals a jury verdict which awarded Danny Reed and Sonya Reed, his wife, the plaintiffs below and appellees herein, damages in excess of $270,000 for injuries suffered in an automobile accident. The defendant appeals the final order of the Circuit Court of Mercer County entered June 3, 1994, which denied her motion for a new trial. The defendant raises two assignments of error: (1) the trial court should have granted a mistrial when insurance coverage was mentioned in front of the jury; and (2) the issue of damages for future medical expenses was not supported by the evidence and should never have been submitted to the jury. After reviewing the record and briefs of the parties, the judgment of the trial court is affirmed, in part; reversed, in part; and remanded for entry of a remittitur order of $10,000 because the award for future medical expenses was not supported by the evidence.
The evidence shows Danny Reed suffered a back injury on November 29, 1990, when his car was struck by a car driven by the defendant. Over the course of the following weeks, Mr. Reed's back condition worsened to the point he could no longer work as a coal miner. He brought suit to recover damages for these injuries and Sonya Reed, his wife, brought suit for loss of consortium. 1
The defendant's insurer, Dairyland Insurance Company, settled with the plaintiff for the policy limit of $20,000. The suit proceeded under W.Va.Code, 33-6-31 (1988), as the plaintiff sought to recover damages pursuant to the underinsured motorist carrier provision of the policy with his insurer, Nationwide Mutual Insurance Company (Nationwide). 2 The liability of Kathy L. Wimmer was admitted prior to trial, and she did not appear at trial. Nationwide chose to defend in the name of the defendant. The sole issue at trial was the calculation of damages.
Several medical experts were called at trial. The videotaped deposition of J. Gordon Burch, M.D., a neurologist, was presented. It was Dr. Burch's opinion that the plaintiff suffered lumbosacral and cervical sprain injuries in the accident. He suggested the back pain that extended down the plaintiff's left leg was the result of a "pinched nerve." Dr. Burch found the plaintiff's complaints of pain to be credible.
Clifford H. Carlson, M.D., a physiatrist, was called to testify. Dr. Carlson explained that as a physiatrist his role was to work with persons suffering from orthopedic or neurologic impairments to help them reach their maximum functioning level. It was the opinion of Dr. Carlson that the plaintiff suffered a permanent back injury in the car accident that would limit him to performing only light physical work throughout his life. Upon reviewing the plaintiff's records, Dr. Carlson identified a preexisting back problem. The plaintiff had undergone surgery Michael D. Schinnick, Ph.D., a vocational evaluator, a work adjustment specialist who deals with work injury management, testified he found the plaintiff to be totally vocationally disabled. Dr. Schinnick noted the plaintiff was unsuccessful in his attempts to continue working because of his back problems even though he enrolled in a vocational program to attain employment.
[195 W.Va. 203] when he was six months old to correct a congenital malformation in his low back. When asked about the plaintiff's future care relating to the injury, Dr. Carlson stated the plaintiff may require medication or physical therapy if his back condition should become exacerbate.
The plaintiff's next witness was Michael L. Brookshire, a professor of economics at the West Virginia Graduate College in Charleston. He calculated the plaintiff's lost wages at present value, assuming total vocational disability, at somewhere between $350,753, focusing on the years the plaintiff earned the most money, and $178,302, averaging his high and low income years.
Yogesh Chand, M.D., a neurosurgeon, was unavailable for trial and, by agreement of the parties, his deposition was read to the jury. After reviewing the evidence and examining the plaintiff, it was Dr. Chand's opinion that the plaintiff suffered from a herniated disc even though the results of the MRI test on him indicated a bulging disc instead of a disc herniation. When questioned about possible surgery to correct a herniated disc, Dr. Chand stated the operation has a success rate in the neighborhood of 70 percent and may cost between $7,500 to $10,000. Dr. Chand did not state, however, that the plaintiff would require such surgery.
Edward M. Litz, M.D., a board-certified orthopedic surgeon, testified on behalf of the defendant. Upon examining the plaintiff, Dr. Litz found two preexisting back conditions. He found the birth defect which required surgery and also noted a defect on the spine due to constant stress on his backbone. He did not find a neurological or nerve-based problem. Dr. Litz stated that the plaintiff was not totally disabled from employment although he admitted the plaintiff could never return to work in the coal mines.
The defendant also called Errol Sadlon, a vocational rehabilitation counselor, to testify. He stated the plaintiff could return to the work force performing "light work" without much difficulty.
After deliberations, the jury returned a verdict awarding the plaintiff $3,000 for past and present pain, suffering, and emotional distress; $4,711.33 for past and present medical expenses; $3,000 for past and present loss of physical function and loss of enjoyment of life; $1,380 for past lost wages; $16,000 for future pain, suffering, and emotional distress; $10,000 for future medical expenses; $16,000 for future loss of physical function and loss of enjoyment of life; and $178,302 for future lost wages. Sonya Reed received $38,000 for loss of consortium.
The defendant's motion for a new trial was denied by order entered June 3, 1994. This appeal ensued.
The defendant argues the trial court erred in not declaring a mistrial when, during cross-examination, the plaintiff intentionally mentioned the word "insurance." 3 An immediate The plaintiff responds the trial court was correct in not granting a mistrial considering the fact defense counsel did not make a timely objection to the testimony. 4 The plaintiff argues the testimony was not prejudicial to the defendant, but was elicited only after repeated questioning during cross-examination in which the defendant tried to characterize the plaintiff as litigious. 5
[195 W.Va. 204] objection to the plaintiff's comment was not made, but during a recess and out of the presence of the jury, defense counsel approached the bench and moved for a mistrial. The defendant asserts argument on this matter was held out of the presence of the jury in an attempt to...
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