Malena Link v. State Farm Mutual Automobile Insurance Company

• Court: Court of Appeals of Kentucky
• Decided: June 20, 2024
• Docket: 2023 CA 000821
• Status: Unknown

Opinion

RENDERED: JUNE 21, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-0821-MR

MALENA LINK AND DONALD PATRICK LINK APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 19-CI-006106

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, A. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Malena Link and Donald Patrick Link appeal from a judgment

issued pursuant to a jury’s verdict in their underinsured motorist claim against

State Farm Mutual Automobile Insurance Company. We affirm. A vehicle in which Donald was driving and Malena was a passenger

was rear-ended near Pittsburgh, Pennsylvania. It is unquestioned that the driver of

the other vehicle was legally drunk and completely at fault for the collision. The

other driver was convicted of criminal offenses in Pennsylvania courts. Malena

sought immediate medical care and remained hospitalized for about two weeks. It

is unquestioned that she suffered a fracture to her back. Malena also asserts her

rotator cuff problems stem from the collision and its aftermath, though the

relationship between her shoulder issues and the collision is disputed. Donald did

not seek medical care for roughly a week after the collision. Donald admits he had

pre-existing back issues but whether the collision exacerbated those pre-existing

issues is disputed.

Donald and Malena eventually settled their claims against the other

driver and his insurance company. They eventually filed this action against State

Farm, their own insurance carrier, pursuant to the underinsurance provisions in

their automobile insurance policy because, in their view, their damages, including

recommended expensive surgery on Donald’s back, exceeded the amount for

which they settled with the other driver’s insurer.

The Links’ claims proceeded to a multi-day jury trial held in June

2023. The Links and State Farm each presented expert medical opinions

supporting their respective positions. The Links’ core position is that their injuries,

-2- and the ramifications thereof, are attributable to the collision. State Farm, on the

other hand, disputed that Malena’s shoulder injuries stemmed from the collision

and that Donald suffered a compensable exacerbation of his pre-existing back

condition.

The jury instructions submitted by the trial court required the jury to

first answer this question:

In order to find for the Plaintiff, Donald Patrick Link, for the injuries alleged, you must find that the automobile accident of October 13, 2018, was a substantial factor in causing each of the injuries claimed by Mr. Link.

Do you believe from the evidence that the automobile accident of October 13, 2018, was a substantial factor in causing each of the injuries to Donald Patrick Link from which you have heard testimony?

Trial court record (“R.”) at 981. The court also gave an instruction as to Malena

Link, which was identical except her name was substituted for Donald’s.

That text was followed with the word “YES” written directly above

the word “NO,” with language directing the jury to circle one or the other. The

instruction then had space for the foreperson to sign if the verdict was unanimous

or for up to eleven jurors to sign if the verdict was not unanimous. The jury circled

“NO” as to Donald and “YES” as to Malena.

-3- The instruction regarding Donald contained language at its bottom

directing the jury to skip the next instruction if it answered “NO.” Thus, the jury

did not address the next instruction, which would have allowed them to award

damages to Donald.

Because the jury answered “YES” to the initial instruction as to

Malena, it proceeded to the damages instruction, which substantively provided:

If you answered “Yes” to Instruction No. 3, you will now determine from the evidence and state below what sum or sums of money, if any, will fairly and reasonably compensate Malena Link for the following damages, if you believe from the evidence that she has sustained any one or more of them directly by reason of the October 13, 2018, accident, and/or aggravation of any pre-existing injuries, if any, directly by reason of this accident . . . .

R. at 984. The instruction then contained blank spaces allowing the jury to write in

a separate damage award to Malena in five categories: past medical expenses,

future medical expenses, pain and suffering, loss of power to labor, and loss of

services and conjugal relations. The jury awarded Malena $75,000 each for past

medical expenses and pain and suffering but zero in the other categories. In sum,

the jury awarded Donald nothing and Malena $150,000.

Because $150,000 is less than the amount they received from the other

driver, the practical effect was that the Links recovered nothing. Progressive Max

Ins. Co. v. Jamison, 431 S.W.3d 452, 458 (Ky. App. 2013) (noting that

-4- underinsurance benefits “are available only when the judgment exceeds the

tortfeasor’s liability insurance policy limits”). This appeal followed.

The Links raise two main arguments, which we shall resolve in the

opposite order they were presented to us. First, they argue the trial court erred by

excluding evidence of the other driver’s criminal charges stemming from the

collision. Second, they argue the jury instructions were flawed.

We begin with the exclusion of the other driver’s criminal charges.1

Our review of a trial court’s evidentiary decisions is deferential since that court has

“broad discretion in making evidentiary determinations.” Primal Vantage

Company, Inc. v. O’Bryan, 677 S.W.3d 228, 239 (Ky. 2022).

“The trial court serves an important evidentiary-screening function to

ensure that, to the extent possible, only relevant evidence is admitted.” Id. at 237.

Indeed, evidence which is not relevant is inadmissible under Kentucky Rule of

Evidence (“KRE”) 402. And relevant evidence is defined in KRE 401 as

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” In short, “whatever naturally and logically

tends to establish a fact in issue, is relevant, and that which fails to qualify in this

1 “We have considered the parties’ extensive arguments and citations to authority but will discuss only the arguments and cited authorities we deem most pertinent, the remainder being without merit, irrelevant, or redundant.” Schell v. Young, 640 S.W.3d 24, 29 (Ky. App. 2021).

-5- respect is not relevant.” Sallee v. Ashlock, 438 S.W.2d 538, 542 (Ky. 1969)

(quoting Jones on Evidence, Vol. 1, s 151, 270).

Here, evidence regarding the other driver’s criminal charges, or

convictions, was not relevant because it did not logically help establish any fact at

issue. It is undisputed that the collision was entirely the fault of the other driver. It

is undisputed that Donald and Malena’s car was badly damaged. The charges did

not help prove the extent of Donald or Malena’s injuries. The charges did not help

prove whether any of those injuries were proximately caused by the collision. The

charges did not help prove the amount of Donald or Malena’s past, or future,

medical bills. The charges did not help prove any change in the ability of Donald

or Malena to perform work duties, or the amount of any lost income either

incurred. The charges did not help prove the extent of Donald or Malena’s pain

and suffering. In sum, the charges did not help prove, or disprove, any pertinent

issue before the jury. Consequently, the charges and convictions failed to pass the

relevancy test in KRE 401, and so we affirm the decision to exclude them.

We now turn to the jury instruction issue, the gist of which is whether

the trial court erred by requiring the jury to find the collision was a substantial

factor in causing “each of” Donald and Malena’s injuries. “In this jurisdiction it is

a rule of longstanding and frequent repetition that erroneous instructions to the jury

are presumed to be prejudicial . . . .” McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky.

-6- 1997). However, “[t]echnically incorrect instructions are not grounds for reversal

where the rights of the losing party are not prejudiced.” Miller v. Miller, 296

S.W.2d 684, 687 (Ky. 1956). “A properly preserved challenge to the contents of a

given jury instruction is a question of law subject to de novo review on appeal.”

Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 709 (Ky. 2020).2

The gist of the Links’ argument is that the “each of” language turned

the verdict into an all or nothing situation – the jury had to conclude that either all

of the Links’ claimed injuries stemmed from the collision or none did. We agree.

In a case involving multiple alleged injuries, a jury should be instructed in a

manner which allows it to determine whether the plaintiffs suffered any injuries

supported by the evidence for which the defendant bears responsibility. The

2 The jury instruction conference was, for reasons not apparent from the face of the record, not recorded. The trial court approved the supplementation of the record to include an affidavit from the Links’ counsel, the relevant portions of which are:

2. Affiant on May 9, 2023 did make an objection to the Court[’]s Instructions in the above trial. Plaintiff’s [sic] counsel objected to the use of the phrase ‘‘“[sic] in causing each of the injuries claimed” in Instruction No[.] 1 and Instruction No. 3.

3. Affiant’s [sic] argued that said wording would require the jury to find all or none of the alleged injuries.

4. Affiant requested the instructions he tendered on behalf of the Plaintiffs be given.

R. at 1003. The trial was held from June 5-8, 2023. We presume the affidavit’s curious assertion that counsel objected to the court’s instructions on May 9, 2023, is a typographical error. Regardless, we accept that the Links preserved their objection to the “each of” language.

-7- instruction here was flawed because it did not allow the jury to determine whether

some, but not all, of the Links’ injuries stemmed from the collision.

The disputed facts of this case illustrate well why the “each of”

language was improper. Malena Link claimed that both her back and shoulder

were injured as a result of the collision. State Farm, essentially, only actively

contested whether the collision caused Malena’s shoulder condition. But the

instruction’s plain language allowed the jury to answer “yes” (indicating the

injuries were sustained as a result of the collision) only if it found from the

evidence that “each of” – i.e., both of – Malena’s injuries were a result of the

collision. In other words, if the jury concluded that Malena’s back was harmed as

a result of the collision, but her shoulder was not, it would have had to answer “no”

because, under those facts, “each of” her injuries had not been caused by the

collision. In turn, that would have prevented the jury from awarding Malena

damages for her injured back, even though it seems uncontested that the collision

injured her back. An instruction whose language may prevent a plaintiff from

receiving damages for an otherwise compensable injury is improper.

We emphatically reject State Farm’s unsound argument that the

Links’ counsel somehow cured, or explained away, the instructional error during

closing argument. State Farm’s argument is directly contrary to binding precedent

from our Supreme Court which explicitly holds that an attorney’s arguments may

-8- not “rehabilitate otherwise erroneous or imprecise jury instructions.” Dixon v.

Commonwealth, 263 S.W.3d 583, 593 (Ky. 2008) (footnote and citations omitted).

“Or, in other words, the concept of fleshing out bare bones instructions permits

counsel to attempt to explain the instructions to the jury but does not permit

counsel to attempt to correct erroneous jury instructions.” Harp v. Commonwealth,

266 S.W.3d 813, 820 (Ky. 2008).

Having determined the instruction was flawed, we must now

determine whether the error prejudiced Donald and/or Malena. 3 It did not.

Here, the Links’ brief regarding Donald’s injuries focuses solely on

his back, specifically an allegation that the collision aggravated his pre-existing

bad back.4 Since Donald focuses on only one “injury” in his briefs, the instruction

requiring the jury to find that “each of” his injuries was attributable to the collision

was not prejudicial. In other words, since Donald claimed only one injury, his was

inherently an “all or nothing” situation regarding whether he was entitled to

damages – either the jury believed his prior back condition was exacerbated by the

3 Our reasoning differs from that employed by the trial court, which obviously believed the instructions were proper. However, “[i]f an appellate court is aware of a reason to affirm the lower court’s decision, it must do so, even if on different grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 496 (Ky. 2014). 4 We decline to sift through the voluminous record or watch a multi-day trial to learn whether Donald ever claimed any injuries to any other body parts incurred due to the collision.

-9- collision or it did not. And the expert witness presented by State Farm testified in

a manner which would reasonably support the jury’s verdict as to Donald.5

Malena’s situation is factually different, but the legal result is the

same. Broadly speaking, Malena claimed two injuries - to her shoulder and to her

back. The “each of” language in the instruction required the jury to find that both

injuries were attributable to the collision in order to award her any damages. In

other words, the instruction did not permit the jury to award Malena damages for

her uncontested back injury if it found that her contested shoulder injury was not

related to the collision. Therefore, the instruction was erroneous.

However, the jury answered “yes” to the question involving the “each

of” language – an answer entirely favorable to Malena. We may not reasonably

conclude there was prejudicial, reversible error stemming from an improper

instruction when the jury answered that flawed instruction in a manner favorable to

the party seeking relief due to the flaw.

5 State Farm’s medical expert testified that none of Donald’s injuries were due to the accident; instead, the expert opined they were degenerative conditions. The expert testified that Donald would require no future medical care stemming from the collision and that he was no more limited in his abilities after the collision than before it. However, the expert also testified that he generally took patients at their word regarding subjective complaints of pain and so had assumed, at least initially, that the collision temporarily aggravated Donald’s pre-existing back condition. The expert thus testified that Donald’s initial seeking of medical treatment was reasonable. In short, State Farm’s expert’s testimony was somewhat internally contradictory.

-10- Since the unfortunate inclusion of the “each of” language in the

instructions did not prejudice “the rights of the losing party[,]” the instructional

error was harmless under these unique facts. Miller, 296 S.W.2d at 687.

The Links’ final argument is that the instructions did not adequately

address their claims regarding exacerbation of a pre-existing condition. We

conclude they have not shown this issue was properly preserved.

The jury instruction conference was not recorded and there is no

mention of an exacerbation instruction in the Links’ counsel’s affidavit. Therefore,

we cannot consider the Links to have preserved the error at the instructional

conference. See Kentucky Rules of Appellate Procedure (RAP) 25(B) (“The

appellate court shall not consider any claim or contention which is based upon a

portion of the record below that has not been made part of the record before the

appellate court.”).

The Links insist they tendered an exacerbation of a pre-existing

condition instruction in their brief, but they tellingly do not cite to anywhere in the

written record where we may view that tendered instruction.

To be sure, the Links attach what purports to be their tendered

instructions as an exhibit in the appendix to their opening brief, and that exhibit

contains an exacerbation instruction. However, the Links’ tendered instructions do

not contain that exacerbation instruction. See R. at 385-390; 415-20 (the record

-11- contains two sets of seemingly identical proposed instructions tendered by the

Links). In short, the tendered instructions attached to the Links’ brief do not match

those they submitted prior to trial. It is highly improper for counsel to place items

in an appendix which are not found in the record. See RAP 32(E)(1)(c) (“Except

for matters of which the appellate court may take judicial notice, materials and

documents not included in the record shall not be introduced or used as exhibits in

support of briefs.”). And, under RAP 25(B), we “shall not consider any claim or

contention which is based upon a portion of the record below that has not been

made part of the record before the appellate court.” We therefore decline to

consider the exacerbation instruction found in the appendix to the Links’ brief.6

Preservation thus depends on two brief discussions at the bench which

occurred during the penultimate day of the trial. At a bench conference, the Links’

counsel stated that he had brought in an aggravation of a pre-existing condition

proposed instruction and opined “that should be given.” The court responded

“alright, let me think about that.” Video, 6/7/23 at 12:07:45 et seq. Counsel did

not ask the trial court to make the tendered instruction a part of the record or orally

inform the court as to that proposed instruction’s contents. At another bench

6 RAP 32(E)(d) states that the index to the appendix to a brief “shall set forth where each document may be found in the record.” The index to the Links’ brief does not contain pinpoint cites to where the items within the appendix may be found in the voluminous record. We have leniently chosen not to sanction counsel for the multiple violations of RAP within the Links’ brief but strongly caution counsel to not expect such leniency in the future.

-12- conference later that day, the Links’ counsel asked the trial court if it had looked at

“my aggravation of a pre-existing condition.” The judge responded that he had

and “it will be embedded in the question.” The Links’ counsel merely responded

“thank you, sir.” Id. at 3:49:19 et seq. Again, counsel did not ask the trial court to

include the tendered exacerbation instruction in the record, nor did counsel express

any dissatisfaction whatsoever with the trial court’s decision to embed

exacerbation language within another instruction. Counsel did not inquire as to the

precise language the trial court intended to use in the exacerbation instruction, so

counsel certainly did not object to that language at the bench conference.

The upshot is this: we have nothing in the record to show what,

precisely, the Links wanted an exacerbation instruction to include or where,

precisely, they wanted that language to appear within the instructions. At most, the

Links have shown they vaguely asked for the instructions to include exacerbation

language – which they do. See R. at 982, 984. We cannot therefore perceive any

sort of obvious error due to a complete omission of a proper basis for recovery.

See Drury v. Spalding, 812 S.W.2d 713, 715 (Ky. 1991) (holding that “a claimant

is entitled to compensation for damages for a preexisting injury to the extent

‘activated or aggravated’ by the negligent act of the defendants”).

Kentucky Rule of Civil Procedure (CR) 51(3) provides that “[n]o

party may assign as error the giving or the failure to give an instruction unless he

-13- has fairly and adequately presented his position by an offered instruction or by

motion, or unless he makes objection before the court instructs the jury, stating

specifically the matter to which he objects and the ground or grounds of his

objection.” Our Supreme Court has explained that rule means that a challenge to a

jury instruction is preserved by a party “making an objection, either oral or written,

before the court instructs the jury, that specifically states the matter to which he

objects and the ground or grounds of his objection, or by offering his own

proposed instructions which fairly and adequately present his position.” Norton

Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 709 (Ky. 2020) (internal

quotation marks and citations omitted).

Here, none of those preservation requirements are facially satisfied.

The Links have not pointed to anywhere we may view an exacerbation instruction

they tendered to the trial court. Thus, because we cannot compare the Links’

exacerbation instruction to that utilized by the trial court, we cannot conclude they

preserved the issue by tendering an instruction which fairly and adequately

presents their position on the issue. Similarly, the Links have not pointed to

anywhere in the record where they objected to the exacerbation language used by

the trial court. Of course, the jury instruction conference was not recorded, but the

Links’ counsel failed to address any objections to the court’s exacerbation

instruction in counsel’s affidavit. In fact, the Links’ counsel expressed no

-14- dissatisfaction with the trial court’s statement that exacerbation language would be

embedded within another instruction.

Our Supreme Court has forcefully held that “if a party fails to

preserve properly a challenge to jury instructions in the trial court, the challenge is

not entitled to appellate review.” Disselkamp, 600 S.W.3d at 709-10. Therefore,

we decline to address further any issues raised by the Links regarding the

exacerbation instruction.

For the foregoing reasons, the Jefferson Circuit Court is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:

Grover S. Cox Jared L. Downs Louisville, Kentucky Louisville, Kentucky

-15-