Thompson v. Sherwin Williams Co.

113 S.W.3d 140, 2003 Ky. LEXIS 177, 2003 WL 21990267
CourtKentucky Supreme Court
DecidedAugust 21, 2003
DocketNo. 2001-SC-0516-DG
StatusPublished
Cited by2 cases

This text of 113 S.W.3d 140 (Thompson v. Sherwin Williams Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Sherwin Williams Co., 113 S.W.3d 140, 2003 Ky. LEXIS 177, 2003 WL 21990267 (Ky. 2003).

Opinion

Opinion of the Court by

Justice COOPER.

Appellants Jeffery and Janie Thompson brought this action in the Simpson Circuit Court for damages for Janie’s personal injuries and the damage to their jointly owned vehicle resulting from a chain-reaction collision in which their vehicle, then being operated by Janie, was rear-ended by a van owned by Appellee Sherwin Williams Company, Inc., and operated by its employee, Appellee James E. Stevens. There was evidence that the Sherwin Williams van had been rear-ended by another vehicle owned and operated by Janet Revuelta. The Thompsons sued Sherwin Williams, Stevens, and Revuelta.

At the first trial, the jury returned a verdict for Appellants in the total sum of $99,004.50. A new trial was granted on the issue of apportionment because, although the jury found fault and causation on the parts of both Stevens/Sherwin Williams and Revuelta, it apportioned 100% of the verdict against Stevens/Sher-win Williams. Following a second trial, the jury apportioned fault 70% against Stevens/Sherwin Williams and 30% against Revuelta. Judgment was then entered in favor of the Thompsons for $99,004.50 pursuant to the first verdict and apportioned pursuant to the second verdict. Sherwin Williams and Stevens appealed; Revuelta did not appeal.

The Court of Appeals affirmed in part and reversed in part, vacating that portion of the judgment awarding Janie Thompson $75,000.00 for future pain and suffering because of a perceived violation of CR 8.01(2). The reversal of that portion of the judgment is the only issue before us on discretionary review. We now reinstate the judgment of the Simpson Circuit Court in its entirety.

Prior to the adoption of CR 8.01(2), the ad damnum clause of a civil complaint for unliquidated damages typically demanded whatever sum of money the plaintiff considered appropriate, often a sum with “shock value.” Cf Kurt A. Philipps, Jr., 6 Kentucky Practice: Rules of Civil Procedure Annotated, CR 8.01 cmt. 5, at 139 (5th ed; West 1995) (“The amendment is intended to prevent a party from alleging damage amounts which are included for shock value.”). If the ad damnum exceeded the defendant’s liability insurance coverage, the insurer would send an “excess letter” to the insured advising the insured of that fact and of the insured’s right to retain a personal attorney to defend against the excess. This practice also assisted insurers in determining what reserves should be established in anticipation of a potential judgment.

In 1976, presumably in response to complaints from the medical community about the “shock value” of ad damnum clauses in medical malpractice complaints, the General Assembly enacted KRS 304.40-270 requiring that such complaints recite only that the damages exceeded the sum required to establish the jurisdiction of the court. 1976 Ky. Acts, ch. 163, § 3. In McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977), there is dictum expressing “deep misgivings” about the constitutionality of this provision.' Id. at 406. The Court of Appeals subsequently declared the provision unconstitutional as an invasion of the rule-making authority of the Supreme Court. McCoy v. W. Baptist Hosp., Ky. App., 628 S.W.2d 634, 635 (1981). We then [143]*143subsequently adopted CR 8.01(2), effective January 1, 1987, which incorporates the language of former KRS 304.40-270 and applies it to all complaints for unliquidated damages. The rule also includes the following:

When a claim is made against a party for unliquidated damages, that party may obtain information as to the amount claimed by interrogatories; if this is done, the amount claimed shall not exceed the last amount stated in answer to interrogatories.

We have consistently held that the purpose of this rule is to put the defendant on notice of the amount of liquidated damages at stake and that the “shall not exceed” language of the rule is mandatory. If the plaintiff responds to a CR 8.01(2) interrogatory and does not supplement the response, the plaintiffs recovery is limited

to the amount stated in the last response; if the plaintiff does not respond to the interrogatory, the plaintiff is not entitled to an instruction on unliquidated damages. LaFleur v. Shoney’s, Inc., Ky., 83 S.W.3d 474, 480-81 (2002); Fratzke v. Murphy, Ky., 12 S.W.3d 269, 270 (1999); Burns v. Level, Ky., 957 S.W.2d 218, 221-22 (1997); see also Nat’l Fire Ins. Co. v. Spain, Ky.App., 774 S.W.2d 449, 451 (1989).

Here, Appellees served on Appellants a set of interrogatories that included a request (Interrogatory No. 14) that Appellants “[s]tate each item of damage which you claim in this action, and as to each item of damage, the exact amount you believe you are entitled to recover, and describe in detail how you calculate such amounts.” Appellants’ response to Interrogatory No. 14 was as follows:

1. Personal and permanent injuries - $150,000.00.
2. Pain and suffering - $100,000.00.
3. Lost wages - unknown at present time.
4. Medical bills and related expenses incurred to date - $7,418.00.
5. Property damage - $2,500.00.

Appellants subsequently filed supplemental responses to increase the claim for medical expenses to date to $10,624.61 and to claim future medical expenses in the sum of $15,000.00. The trial judge ultimately disallowed an $847.90 furniture purchase claimed as a medical expense and the entire claim for future medical expenses. However, he did instruct the jury that it could award damages up to the following limits:

$ 9,776.71 - Janie Thompson’s medical expenses to date.
100,000.00-Janie Thompson’s pain and suffering to date.
150,000.00 - Janie Thompson’s future pain and suffering.
2,227.79 - Property damage.
$262,004.50-Total.

Appellees objected to the separate instruction on future pain and suffering, asserting that the response to Interrogatory No. 14 did not include a separate category for future pain and suffering; thus, all pain and suffering, both past and future, was required to be included in the $100,000.00 claimed for that item. The trial judge concluded that the claim for future pain and suffering was included within the category of “personal and permanent injuries.” The jury returned a verdict with damages itemized as follows:

[144]*144$ 9,776.71 - Janie Thompson’s medical expenses to date.
12,000.00 - Janie Thompson’s pain and suffering to date.

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Cite This Page — Counsel Stack

Bluebook (online)
113 S.W.3d 140, 2003 Ky. LEXIS 177, 2003 WL 21990267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-sherwin-williams-co-ky-2003.