Steel Technologies Inc. v. Congleton, 2005-SC-000551-DG.

• Decision Date: 21 June 2007
• Docket Number: No. 2005-SC-000551-DG.,2005-SC-000551-DG.
• Citation: 234 S.W.3d 920
• Parties: STEEL TECHNOLOGIES, INC. Appellant, v. Jason CONGLETON (Individually; in his Capacity as Administrator for the Estate of Melissa Congleton; and in his Capacity as Parent and Next Friend of Jacob and Samantha Congleton) Appellees.
• Court: United States State Supreme Court — District of Kentucky

234 S.W.3d 920

STEEL TECHNOLOGIES, INC. Appellant, v. Jason CONGLETON (Individually; in his Capacity as Administrator for the Estate of Melissa Congleton; and in his Capacity as Parent and Next Friend of Jacob and Samantha Congleton) Appellees.

No. 2005-SC-000551-DG.

Supreme Court of Kentucky.

June 21, 2007.

Rehearing Denied November 1, 2007.

Charles S. Cassis, Stockard R. Hickey, III, Frost, Brown & Todd, Louisville, Counsel for Appellant.

Meredith L. Lawrence, Warsaw, Counsel for Appellees.

Joe C. Savage, Cory Michael Erdmann, Savage, Elliott, Houlihan, Moore, Mullins & Erdmann, Lexington, Counsel for Amicus Curiae, Kentucky Academy of Trial Attorneys.

F. Larkin Fore, Sarah Megan Fore, Fore, Miller & Schwartz, Louisville, Counsel for Amicus Curiae, Trucking Industry Defense Association.

Opinion of the Court by Justice NOBLE.

In this wrongful death action, the Gallatin County Circuit Court jury returned a significant verdict awarding damages for wrongful death, loss of parental consortium, and pre-impact fright against Appellant Steel Technologies, Inc. The jury also awarded punitive damages. Steel Technologies challenges the loss of parental consortium award as being unsupported by the evidence; the pre-impact fright damages as being unavailable under Kentucky law; and the punitive damages as being in violation of KRS 411.184(3), improperly imposed for mere negligence, and in violation of due process.

I. Background

This case arose from a tractor-trailer accident that resulted in the death of Melissa Congleton. The driver of the tractor-trailer, Ralph Arnold, was employed by Steel Technologies to haul the large steel coils produced in Ghent, Kentucky to other facilities. The steel coils were hauled using a flatbed trailer, secured with steel chains and other equipment. On the day of the accident, Arnold was hauling a steel coil that weighed approximately 37,000 pounds. He had secured the coil with three steel chains, though regulations promulgated by the Federal Motor Carrier Safety Administration required at least five chains given the weight of the cargo and the type of chains in use.

On Highway 421 in Henry County, an unidentified car stopped in the path of Arnold's tractor-trailer, causing him to brake suddenly. Two of the chains holding the steel coil broke, and the coil fell through the side of the flatbed trailer, directly in the path of an oncoming pick-up truck in the next lane. The pick-up struck the steel coil and bounced off the side of the road, where it struck a stone wall before coming to a stop. The front driver's side quarter of the pick-up was crushed, and the driver, Melissa Congleton, died at the scene from the impact.

Congleton's husband filed multiple suits against Steel Technologies, Inc.: one on behalf of his wife's estate seeking damages for wrongful death, intentional infliction of emotional distress, pain and suffering, and punitive damages; one on his own behalf for loss of spousal consortium; and one on behalf of their two children for loss of parental consortium. The various suits were later consolidated.

Prior to trial, the trial court granted summary judgment in favor of Steel Technologies as to the claims of loss of spousal consortium and intentional infliction of emotional distress; however, the court granted summary judgment against Steel Technologies on the issue of liability, holding that the company was vicariously liable for its driver's actions as a matter of law. That left only the issue of damages for the remaining claims to be resolved at trial.

The jury heard evidence for two days. At the close of the plaintiff's case, the trial court determined that instructions on pain and suffering after the impact would be improper. At the close of the defendant's case, the trial court decided that the evidence supported giving an instruction on the emotional distress caused by Congleton's perception of the impending impact (pre-impact fear), and also gave damages instructions on wrongful death, punitive damages, and loss of parental consortium for the two children. The jury returned an award of $667,267 in compensatory damages for the wrongful death; $1,000,000 in loss of consortium damages for each child; $100,000 in pre-impact fear damages; and $1,000,000 in punitive damages. The total award was for $3,767,267.

Steel Technologies satisfied the judgment in part, but appealed the awards for punitive damages, pre-impact fear, and loss of parental consortium. The Court of Appeals affirmed. Steel Technologies sought and was granted discretionary review by this Court.

II. Analysis

A. Preservation

Several of Steel Technologies' claims consist of challenges to the sufficiency of the evidence. The Appellees respond to the merits of all claims, but also argue that the claims of error related to the sufficiency of the evidence were not properly preserved for appellate review because there was no motion for a directed verdict at the close of all the evidence. In support, the Appellees point to an order from the Court of Appeals, which they claim held that no directed verdict motion was made and which has now become the law of the case, since no appeal was taken from that order.

Steel Technologies responds by noting that the record shows it did move for a directed verdict at the end of the Appellees' proof, followed by a motion for a judgment notwithstanding the verdict (JNOV) after the trial, and that there is some evidence that it moved for a directed verdict at the close of all the proof. In the alternative, Steel Technologies argues that the Appellees are barred from raising the preservation issue at this point because the matter was implicitly decided against them by the Court of Appeals, yet no cross-motion for discretionary review was filed addressing it.

The record does not show whether a motion for a directed verdict was made at the close of Steel Technologies' proof. The record of the trial is on three video tapes. The testimony of Steel Technologies' last witness is included near the end of the second tape. After the witness left the stand, the trial judge took a short recess and allowed the jury to leave the court room. The tape shows that after the jury left, the attorneys and the judge remained in the court room and discussed what to do about a police officer having taken photographic exhibits with him when he finished testifying. The tape then ends; the final time stamp is 10:56:49 a.m. The next tape picks up at 11:15:40 a.m. with the attorneys conferring with the judge about the proposed jury instructions. The gap of approximately 20 minutes between the tapes is the period during which a motion for a directed verdict, if any, was likely made.

Steel Technologies has cited to the following comment by one of its attorneys as proof that the directed verdict motion was made: "Judge, I don't want to waive any of our objections to instructing the jury on any of these counts, but without waiving these, in light of the court's ruling." The comment, made approximately ten minutes into the jury instructions discussion, was made in support of the use of Steel Technologies' proposed punitive damages instruction.

Whether a motion for a directed verdict was made became an issue after the trial when Steel Technologies moved for JNOV and began the appeals process. The trial court denied the JNOV motion. No notice of appeal was filed within the first thirty days after entry of the judgment. The Appellees moved to execute the judgment, arguing that the JNOV motion had not extended the time for filing the appeal since there had been no directed verdict motion at the close of all the proof. The trial court held execution of the judgment at that time, holding that the time for filing an appeal began to run the day after it ruled on the JNOV motion, assuming that Steel Technologies had been entitled to file the JNOV motion.

The court also noted that whether the JNOV motion had been properly filed was not yet ripe and reserved ruling on the issue since it could be rendered moot by Steel Technologies's failure to file a notice of appeal. Nevertheless, the court noted that it had reviewed the record to determine whether a directed verdict motion had been made and found that "[t]he portions of the tape viewed are not conclusive on this issue." The court also noted that it did "not recall such a motion having been made but that is not conclusive even in the court's own mind" and that a hearing on the issue would be necessary should a notice of appeal be filed. Steel Technologies filed a notice of appeal the same day the court entered this order and had filed a supersedeas bond several days before.

The Appellees subsequently objected in the trial court to the notice of appeal as untimely, again claiming that the JNOV motion had not been preceded by a directed verdict motion. The parties then filed multiple other motions and responses quibbling about the details and addressing the validity of the supersedeas bond, the notice of appeal, and the trial court's handling of the motion to execute the judgment. Competing affidavits about whether a directed verdict motion had been made were included with these filings. The trial court ultimately approved the supersedeas bond and stayed execution of the judgment during the appeal. The court's last order on this issue, however, did not address the propriety of the JNOV motion or its effect on the timeliness of the appeal. No further action related to whether the directed verdict motion had been made was taken at the trial court level.

The Appellees continued to complain about the lack of a directed verdict motion once the appellate process began. They filed a motion to dismiss the appeal, arguing that the appeal was untimely because the motion for JNOV was void due to the failure to move for a directed verdict and could not be relied on to stop the running of time for an appeal. Steel Technologies responded that it had moved for a...