Vargo v. Pine

Citation541 S.E.2d 11
Decision Date10 July 2000
Docket NumberNo. 26111.,26111.
CourtSupreme Court of West Virginia
PartiesWilma E. VARGO, Executrix of the Estate of Martha J. Fornari, Deceased, Plaintiff Below, Appellant, v. Sandra L. PINE and David J. Pine, Defendants Below, Appellees.
Concurring and Dissenting Opinion of Justice McGraw December 13, 2000.

Jason A. Cuomo, Frank A. Cuomo, Cuomo & Cuomo, Wellsburg, for Plaintiff Below, Appellant.

V. Tad Greene, McDermott & Bonenberger, Wheeling, for Defendants Below, Appellees.

MAYNARD, Chief Justice.

The appellant and plaintiff below, Wilma E. Vargo, Executrix of the Estate of Martha J. Fornari, appeals the October 30, 1998 order of the Circuit Court of Brooke County denying the appellant's motion for a new trial on the issue of damages.1 After careful consideration of the issue, we affirm the judgment of the circuit court.

I. FACTS

At about 10:30 p.m. on November 27, 1995, Martha Jean Fornari (hereinafter "Mrs. Fornari" or "the decedent") was walking across an intersection in Wellsburg, Brooke County, when she was struck and killed by an automobile driven by the defendant, Sandra Pine. As a result, the appellant, Wilma E. Vargo, Mrs. Fornari's stepdaughter and the executrix of her estate, brought an action against the appellees, Sandra L. Pine (Mrs. Pine) and her husband, David J. Pine, alleging, inter alia, that Mrs. Pine's negligent operation of her vehicle caused the death of Mrs. Fornari.2

At trial, evidence was adduced that Mrs. Fornari was walking from west to east across the intersection, had completely crossed three lanes of traffic and was nearly to the opposite sidewalk when she was struck by Mrs. Pine's vehicle in the eastern portion of the northbound lane. The parties agreed that it was very dark outside. Mrs. Pine was traveling about 43 to 45 miles per hour and had the green light when traveling through the intersection. There was also testimony that the highway to the south of the intersection is flat and free of curves.

Other evidence was heavily contested. There was conflicting testimony concerning how hard it was raining the night of the accident. Also in dispute was whether Mrs. Fornari was struck in the southern end of the intersection where the roadway was illuminated by the lights of a nearby business or at the intersection's northern end which was dark. The appellant presented evidence that Mrs. Fornari was wearing a pink jacket, and the appellee countered with testimony that Mrs. Fornari was dressed in dark colors. Finally, there was controverted evidence that the appellee was distracted by a vehicle to her left, which was driven by a friend of the appellee, immediately prior to striking Mrs. Fornari.

Concerning damages, the parties stipulated to medical and hospital expenses in the sum of $18,837.50 and funeral expenses in the sum of $5,879.86. The appellant presented expert testimony that Mrs. Fornari's loss of income amounted to $172,616.97.3 Finally, the appellant presented uncontroverted testimony of the close relationship between Mrs. Fornari and the appellant.

At the close of the trial, the jury found that the negligence of both the appellee and Mrs. Fornari caused and contributed to the accident. The jury apportioned 51% of the total negligence to the appellee and 49% to Mrs. Fornari. The sum of $18,837.50 was awarded to the appellant for hospital and medical expenses and $5,879.86 was awarded for funeral expenses for a total amount of $24,717.36 in damages. The jury awarded nothing for mental anguish, loss of income and loss of services. In its judgment order, the circuit court awarded a total of $16,119.02 to the appellant.4

II. STANDARD OF REVIEW

Initially, we note that,

[a]s a general proposition, we review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard. Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995) (citation omitted). Additionally, we held in Syllabus Point 1 of Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983), that "[i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." With these standards as our guide, we now consider the issue before us.

III. DISCUSSION

The sole issue is whether the jury's verdict was so low under the facts that reasonable persons could not differ as to its inadequacy. The appellant notes that the verdict amounts to only $9,622.93, after deducting the post-judgment interest, which is less than the uncontested and stipulated medical and funeral expenses. The appellant further opines that the jury awarded nothing for mental anguish, loss of income and loss of services despite uncontested evidence that showed $172,616.97 in lost income and a close relationship between Mrs. Fornari and the appellant.

To determine the applicable law in reviewing the complained of verdict, a survey of the relevant cases is helpful. This Court has on several occasions considered challenges to alleged inadequate verdicts in wrongful death actions. In Hawkins v. Nuttallburg Coal & Coke Co., 66 W.Va. 415, 66 S.E. 520 (1909), a coal company employee was killed and his administrator brought a wrongful death action against the coal company. The jury rendered a verdict for the plaintiff for $500 in damages, and the plaintiff moved the court to set aside the verdict because it was so small that it evinced passion, prejudice, or corruption. The circuit court set aside the verdict and awarded the plaintiff a new trial, and the coal company appealed. This Court held that the circuit court erred in setting aside the verdict and stated:

We have held that, where a motion to set aside a verdict is because of excessive or inadequate damages, the court must not encroach on the province of a jury. In their assessment in tort cases there is no fixed measure, as in cases of contract. This is the case in actions generally. But in the case of an action under the statute for the death of a person this is peculiarly the case. Our decisions go to the effect that the jury, in such cases, is under the statute giving the action absolutely the judge of the amount of damages, and its finding cannot be disturbed unless the court can see that the jury was actuated by passion, prejudice, or corruption.

Id., 66 W.Va. at 416, 66 S.E. at 520 (citations omitted). The Court further said that the presence of passion, prejudice, or corruption cannot be presumed from the mere amount of the verdict.

Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944), concerned a sixteen-year-old healthy, industrious, and energetic youth who was struck and killed by an automobile while delivering newspapers in the early morning. At trial, the jury awarded damages in the amount of $1000 against the driver of the automobile, and the plaintiff appealed alleging, inter alia, that the verdict was so inadequate as to show bias, fraud, partiality, corruption, and prejudice. This Court recognized a distinction between wrongful death and other tort actions, stating that "[i]n actions to recover for death by wrongful act, neglect, or default under the statute, it is the peculiar right, as well as the duty, of the jury to fix the amount of recovery. The right is conferred and the duty imposed by the statute which gives the right of action." Id., 126 W.Va. at 762, 30 S.E.2d at 79. The Court also restated, in syllabus point 2, the law set forth in Hawkins:

In an action for death by wrongful act the jury is the arbiter of the amount of damage, and its finding will not be set aside for the reason that the recovery is inadequate, unless it can be seen that the jury was misled or was motivated by passion, prejudice, partiality or corruption.

In addition, the Court noted, citing Hawkins, that "meagerness of the verdict alone is not a sufficient reason to set [the verdict] aside." Legg, 126 W.Va. at 763, 30 S.E.2d at 79. Finding no evidence of improper motives which could have influenced the jury, the Court affirmed the verdict.

In Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975), the jury found for the plaintiff on the question of liability where plaintiff's two daughters drowned in a lake operated by the defendant. The jury awarded only funeral expenses, and the circuit court awarded new trials on the ground that the verdicts were inadequate as a matter of law. The defendant appealed and argued that the trial court is forbidden to set aside a verdict in a wrongful death action on the ground of inadequacy alone. This Court agreed. Relying on the Hawkins and Legg cases, the Court first noted that it had been "definite and consistent in its view to limit review of jury verdicts in death cases," recognizing "that the jury's enlightened conscience is the sole measure of damages." Kesner, 158 W.Va. at 1007, 216 S.E.2d at 886. Thus, the Court held in syllabus point 1:

Where a jury finds a defendant liable in a wrongful death action, it has absolute discretion, without regard to proof of actual damages, pecuniary loss and the like, to make any award it deems "fair and just..." and the trial court's submission to the jury of a verdict form which embodies the directions of W.Va.Code 1931, 55-7-6, as amended, is not error.

The Court further held in syllabus point 7 that "[t]he meagerness of a verdict in a wrongful death action is not sufficient reason to set it aside; to be inadequate at law, a verdict must...

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2 cases
  • Sneberger v. Morrison, 14-0662
    • United States
    • Supreme Court of West Virginia
    • June 11, 2015
    ...about its inadequacy.' Syllabus Point 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991)." Syl. Pt. 2, Vargo v. Pine, 208 W.Va. 416, 541 S.E.2d 11 (2000).LOUGHRY, Justice: The petitioner and plaintiff below, Teri Sneberger, appeals a final order of the Circuit Court o......
  • Sneberger v. Morrison
    • United States
    • Supreme Court of West Virginia
    • June 11, 2015
    ...about its inadequacy.’ Syllabus Point 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991).” Syl. Pt. 2, Vargo v. Pine, 208 W.Va. 416, 541 S.E.2d 11 (2000).IV. ConclusionFor the reasons set forth above, the final order of the Circuit Court of Randolph County entered on ......

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