Marsch v. American Electric Power Co.

530 S.E.2d 173, 207 W. Va. 174, 1999 W. Va. LEXIS 138
CourtWest Virginia Supreme Court
DecidedNovember 17, 1999
DocketNo. 25863
StatusPublished
Cited by21 cases

This text of 530 S.E.2d 173 (Marsch v. American Electric Power Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marsch v. American Electric Power Co., 530 S.E.2d 173, 207 W. Va. 174, 1999 W. Va. LEXIS 138 (W. Va. 1999).

Opinions

PER CURIAM:

This is an appeal by Harold James Marsch, his wife Tammie Marsch, and their children (hereinafter “Appellants”) from an order of the Circuit Court of Marshall County denying the Appellants’ motion for a new trial based upon the inadequacy of the jury verdict in their favor. The Appellants contend that the lower court erred in failing to grant a new trial, based upon the inadequacy of the damages awarded by the jury. We find that the lower court did not abuse its discretion in denying the motion for new trial, and we affirm.

I.

FACTS

On July 27, 1995, Mr. Harold James Marsch (hereinafter “Mr. Marsch” or “Appellant”) fell through an unguarded opening in a floor at the Kammer Power Plant, owned by Appellee Ohio Power Company (hereinafter “Ohio Power” or “Appellee”).1 Mr. Marsch was employed by George V. Hamilton, Inc., an insulation contractor located near Pittsburgh, Pennsylvania, and the George V. Hamilton company had contracted with Ohio Power to perform insulation work at the Kammer Power Plant in Marshall County, West Virginia. During the fall, Mr. Marsch allegedly sustained injuries to his right shoulder, left knee, and lower back, was transported to the emergency room, and was thereafter sent home. He continued to work after his fall, assigned to light duty in the tool shed. Dr. Scott Baron, an orthopedic surgeon who had previously performed surgery2 on the Appellant’s right shoulder in 1986, diagnosed the Appellant with “acute [179]*179right shoulder strain” after an August 1, 1995, examination. X-rays indicated the presence of degenerative changes to the shoulder, and physical therapy was prescribed but never attended by the Appellant,

In September 1995, approximately six weeks after the industrial accident, Mr. Marsch performed work on overhead water pipes in the basement of his home in Pennsylvania. During this work, he felt a severe pain in his right shoulder.3 Dr. Baron diagnosed the Appellant with a full tear of his right rotator cuff, requiring surgical repair. The Appellant missed approximately six months of work after the surgery, undergoing physical therapy on his shoulder. At trial, Dr. Baron opined that the Appellant sustained at least a partial tear of the rotator cuff during the July 1995 fall. Ohio Power Company’s expert testified that the Appellant may have suffered only a partial tear in the fall and a more extensive tear as a result of the incident occurring while working on pipes at home in September 1995.

The Appellant returned to work in March 1996 and worked in the less demanding commercial insulation work, rather than the more difficult industrial insulation work he had previously performed. Approximately fifteen months after the industrial accident, the Appellant complained of pain and swelling in his left knee. Dr. Baron opined at trial that the July 1995 accident had injured or re-aggravated a torn ligament that the Appellant had sustained twenty years earlier and that the knee condition would eventually require total knee replacement.4

Ohio Power admitted liability for the accident; thus, the following issues were submitted to the jury during a June 1998 trial: (1) Mr. Marsch’s comparative negligence; (2) compensatory damages; (3) loss of consortium on the part of Mr. Marsch’s wife and children; and (4) punitive damages. The jury concluded that Ohio Power was ninety percent negligent and the Appellant was ten percent negligent. The jury awarded damages as follows: past medical expenses of $12,806.42, future medical expenses of $55,-000, past lost earnings of $10,000, impairment of future earnings capacity of $45,000, and punitive damages of $15,000.5

On August 14, 1998, the lower court entered judgment on the jury’s verdict, and on September 12, 1998, the lower court entered an order denying the Appellants’ motion for a new trial. The Appellants have appealed that jury verdict to this Court, emphasizing the jury’s failure to award damages for past, present, or future pain and suffering, the loss of enjoyment of life, the loss of ability to perform household services, and loss of consortium for Mr. Marsch’s wife and children.6

[180]*180II.

STANDARD OF REVIEW

In Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), we explained 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.” Id. at 104, 459 S.E.2d at 381. See also Pauley v. Bays, 200 W.Va. 459, 490 S.E.2d 61 (1997).

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, 194 W.Va. at 104, 459 S.E.2d at 381.

III.

ADEQUACY OF VERDICT

In syllabus point three of Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971), we explained that a new trial is the appropriate resolution where a jury verdict is inadequate:

In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.

Similarly, in syllabus point two of Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989), we elaborated:

“ ‘Where a verdict does not include elements of damage which are specifically proved in uncontroverted amounts and a substantial amount as compensation for injuries and the consequent pain and suffering, the verdict is inadequate and will be set aside. Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967).’ King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976).” Syllabus Point 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).

In syllabus point two of Sullivan v. Lough, 185 W.Va. 260, 406 S.E.2d 691 (1991), we addressed the issue of a possible mistaken view of the case by the jury, as follows:

“ ‘ “A verdict of a jury will be set aside where the amount thereof is such that, when considered in light of the proof, it is clearly shown that the jury was misled by a mistaken view of the case.” Syllabus Point 3, Raines v. Faulkner, 131 W.Va. 10 [48 S.E.2d 393 (1947) ].’ Syllabus Point 2, Keiffer v. Queen, 155 W.Va.

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Bluebook (online)
530 S.E.2d 173, 207 W. Va. 174, 1999 W. Va. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsch-v-american-electric-power-co-wva-1999.