Pickard Chrysler, Inc. v. Sizemore

918 S.W.2d 736, 1995 Ky. App. LEXIS 163, 1995 WL 527186
CourtCourt of Appeals of Kentucky
DecidedSeptember 8, 1995
DocketNo. 94-CA-000951-MR
StatusPublished
Cited by7 cases

This text of 918 S.W.2d 736 (Pickard Chrysler, Inc. v. Sizemore) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pickard Chrysler, Inc. v. Sizemore, 918 S.W.2d 736, 1995 Ky. App. LEXIS 163, 1995 WL 527186 (Ky. Ct. App. 1995).

Opinion

SCHRODER, Judge:

This is an appeal from a judgment awarding appellee $417,457.55 for damages caused by appellant’s negligence in repairing appel-lee’s automobile. After considering appellant’s argument, the record and the applicable law, we affirm.

In January of 1992, appellee, Lois Size-more, purchased a 1987 four-cylinder Pontiac Grand Am from appellant, Pickard Chrysler, Inc. (“Pickard”), along with a service contract on the car. After owning the car for about two weeks, Sizemore began experiencing problems with it. She notified Pickard of the problems and they towed the car to their premises and began working on overhauling the engine, which took about six weeks. On March 26, 1992, Sizemore, along with her ex-husband, one and one-half year old son and a friend of the family, Earl Bowling, arrived to pick up the ear at about 4:30 p.m. When Sizemore attempted to start the car to take it home, it would not start. Pickard determined the problem to be the starter, but claimed repairing the starter was not covered by her service contract. After some negotiations, Pickard agreed to fix the starter.

As they left the lot after the starter had been repaired, Bowling drove the Pontiac, and Sizemore sat in the passenger seat, while her ex-husband and son rode in another vehicle. When they reached 1-75, Sizemore moved into the ear with her ex-husband and child, and Bowling was alone in the Grand Am. According to Bowling, the car ran fine for about forty to fifty miles. At that point, the car backfired and quit when he was going down a hill. When Bowling pulled off to the side of the road, Sizemore and her ex-husband turned around and came back to the Grand Am. The car would not start, so they took the breather off, allowed it to dry and placed it back in the ear.

Sizemore then began driving the Grand Am the rest of the way to Hyden. Sizemore testified that for the remainder of the trip, the ear was operating sluggishly and missing, although no engine or warning light ever came on. Upon reaching Hyden, Sizemore dropped her ex-husband off at a garage to watch a ballgame. As she was pulling out of the garage, the car backfired three times and burst into flames. According to Sizemore’s testimony, the fire immediately spread into the interior of the car. She grabbed her son and exited the car. As she did so, her left foot caught in the door. The car then became totally engulfed in flames and immediately burned up. After the accident, Size-more received medical treatment for injuries to her knee and back and for a nervous condition.

On November 12, 1992, Sizemore filed the action herein against Pickard alleging that Pickard negligently repaired the ear. A trial was held on March 17, 1994, at which time the jury awarded Sizemore $200,000.00 for mental and physical suffering, $13,457.55 for medical expenses, and $200,000.00 for the permanent impairment of her power to earn money. This appeal by Pickard followed.

Pickard first argues that the trial court erroneously permitted Sizemore to introduce evidence regarding her loss of future earnings. Sizemore alleged in her complaint that she received “serious physical injuries, including medical bills, pain and suffering, permanent disfigurement and impairment as well as future medical bills.” In response to Pickard’s interrogatory regarding specific damages claimed, Sizemore answered: “Medical bills, $14,000.00; pain and suffering $300,000.00; future disfigurement and impairment, $200,000.00; future medical $15,-000.00.” During discovery, Pickard also requested from Sizemore, “If the Plaintiffs are alleging in their Complaint that they have suffered an impairment of their future ability to earn money, please attach all tax and income records for the plaintiffs for 1988 through 1992.” Sizemore did not produce any tax or income records and explained later that she did not have such records as she had never filed a tax return. Pickard contends that Sizemore’s pleadings and answers to interrogatories and the fact that she [739]*739did not produce any tax or income records failed to put Pickard on notice that she was claiming loss of future earnings.

In our view, the language in Sizemore’s complaint claiming “permanent disfigurement and impairment” and the response to the interrogatory claiming $200,000.00 therefor, although not quite as explicit as it could have been worded, should have been sufficient to put Pickard on notice of the claim for future lost wages. In fact, it appears Pick-ard was on notice of such claim, given the wording of its discovery request for tax and income records. In any event, when Pickard claimed surprise at trial that Sizemore was putting on evidence of loss of future earnings, the court offered to allow Pickard extra time to review said evidence, but Pickard refused. Therefore, Pickard waived its right to argue it was surprised at trial by such evidence.

Pickard’s second argument is that the trial court erred in permitting an instruction regarding the diminution of Sizemore’s future earnings. Pickard maintains there was insufficient evidence of any future impairment of Sizemore’s ability to earn money and there was no evidence to establish any reasonable future financial damages Sizemore would suffer.

Following the accident, Sizemore was treated for her knee injury by Dr. David Muffly, who performed arthroscopic surgery on the knee which revealed chondromalacia of the lateral femoral condyle and of the patella. Dr. Muffly testified that he believed the knee injury to be related to the accident and assessed a 5% permanent impairment to Sizemore for the knee injury.

Sizemore was also treated by Dr. George Chaney who testified that, as a result of the accident, she suffered a fracture of the vertebra at T12, internal derangement of the right knee, knee strain and a contusion to her back area. He further stated that her activities would be permanently limited as far as repetitive bending, stooping, prolonged sitting, prolonged standing and heavy lifting. Dr. Chaney assessed a 13% permanent impairment to the body as a whole.

Finally, Dr. James Templin testified that he examined Sizemore and found that she suffered from chronic knee pain syndrome, chronic low back syndrome and a compression fracture as a result of the accident. He assessed a permanent impairment rating of 14% to the body as a whole. He also testified that Sizemore would have permanent limitations affecting activities such as standing, walking, climbing, stooping, crouching, kneeling, bending, sitting and repetitive or prolonged activities.

Sizemore was 22 years of age at the time of the accident and according to the life expectancy table admitted at trial, should have 55.3 years to live. At that time, she was working at a grocery store and testified that she was earning $250.00 a week, but produced no documentary proof thereof. Shortly before the accident, Sizemore had received her certification as an emergency medical technician and testified she was at the top of her class. She then enrolled in a college program to receive training as a paramedic. However, she claimed the accident forced her to drop out of college because she physically could not perform the duties of a paramedic. No evidence was presented at trial as to how much a paramedic in that area earns.

Sizemore further claimed she is now unable to work any of the jobs she worked prior to the accident (cook, grocery store clerk, drugstore clerk). She testified she now has to have help at home to do housework and to care for her child.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reece v. Nationwide Mutual Insurance Co.
217 S.W.3d 226 (Kentucky Supreme Court, 2007)
Fairrow v. Commonwealth
175 S.W.3d 601 (Kentucky Supreme Court, 2005)
Anderson v. Commonwealth
63 S.W.3d 135 (Kentucky Supreme Court, 2001)
Brown v. Commonwealth
983 S.W.2d 513 (Kentucky Supreme Court, 1999)
In Re Gilbert
213 B.R. 502 (E.D. Kentucky, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
918 S.W.2d 736, 1995 Ky. App. LEXIS 163, 1995 WL 527186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickard-chrysler-inc-v-sizemore-kyctapp-1995.