Opinion
Civil Action No. 99-1242-CM.
July 11, 2000.
Matthew L. Bretx, Juhnke Bretx, Hutchinson, KS, for Beulah E. Foster, plaintiff.
Michael J. Jerde and William E. Hanna, Morrison Hecker, L.L.P., Kansas City, MO; Bruce Keplinger and Michael G. Norris, Norris, Keplinger Herman, Overland Park, KS; Dennis J.C. Owens, Dewitee Zeldin, LLC, Kansas City, MO; Wayne E. Smith, Dougherty Modin Holloway, Kansas City, MO, for Wal-Mart Stores, Inc., defendant.
Kenneth E. Peirce, Peirce Law Office, Hutchinson, KS, for Gary L. Pease, M.D., movant.
JOURNAL ENTRY OF JUDGMENT
This matter was tried to a jury commencing June 6, 2000. The jury returned a unanimous verdict for plaintiff, assessing 80 percent of fault to defendant, and 20 percent of fault to plaintiff. The jury awarded damages as follows: $100,000 for non-economic loss to date; $375,000 for future non-economic loss; $12,500 for loss of consortium; $15,652.08 for economic loss to date; and $17,500 for future economic loss. This matter is before the court on defendant's motion to limit the jury's award of non-economic loss and apply percentage of plaintiff's fault (Doc. 60).
In a diversity case, a federal court must ascertain and apply state law to reach the same result as if the case had been brought in state court. See Lutz Farms v. Asgrow Seed Co., 948 F.2d 638 (10th Cir. 1991). In this case, Kansas law is applicable. As such, the doctrine of comparative negligence applies, which requires this court to reduce the award of damages in proportion to the amount of negligence attributed to plaintiff. See Kan. Stat. Ann. § 60-258a. Further, Kansas law limits the non-economic damages recoverable in a personal injury action to $250,000. See id. § 60-19a02. Accordingly, the court will address each category of damages awarded in this case and make the appropriate reductions.
Economic Loss. The parties do not dispute the amount of reduction for economic loss to date. The jury awarded $15,652.08, which should be reduced by 20 percent, to arrive at a figure of $12,521.66.
With respect to the damages for future economic loss, the parties dispute how the reduction should be calculated. The jury awarded $17,500, but plaintiff stated in her pretrial disclosure that her claim for future medical expenses would be limited to $12,500. Plaintiff acknowledges that the damages for future economic loss should be reduced in proportion to plaintiff's fault.
Defendant argues that the $17,500 figure should first be reduced to $12,500, and then further reduced by 20 percent to reflect plaintiff's comparative fault. This method of calculation would result in a $10,000 award. Plaintiff, on the other hand, contends that the reduction for comparative fault should be made before the reduction for her pretrial disclosure. Thus, plaintiff argues, the $17,500 figure should first be reduced by 20 percent, and then reduced to $12,500 pursuant to plaintiff's pretrial disclosure, thereby resulting in a $12,500 award.
The court finds Cerretti v. Flint Hills Rural Electric Cooperative Assoc., 251 Kan. 347, 361, 837 P.2d 330, 341 (1992), instructive on this issue. In Cerretti, the jury awarded $1,050,000 for economic loss, which was $34,100 more than the plaintiffs had claimed in their pretrial order. In calculating the reduction of the award, the trial court first reduced the damages by the amount of fault attributed to the plaintiffs and then, based on that figure, determined that the award did not exceed the amount requested in the pretrial order. See id.
Following Cerretti, the court in this case will first reduce plaintiff's award for future economic losses by 20 percent, and then reduce that amount to conform to the pretrial disclosure limit. Plaintiff is therefore entitled to $12,500 for future economic loss.
The court also notes that such a method of calculation is consistent with Kan. Stat. Ann. § 19a02(d), which limits the non-economic damages recoverable by a plaintiff to $250,000. The statute provides that consideration of comparative fault should be made before the cap is imposed. By analogy, the court concludes that the amount stated in plaintiff's pretrial order is a similar "cap" and, as such, a reduction for comparative fault should be made first.
Non-economic Loss. The parties agree that plaintiff's award for non-economic loss is subject to the $250,000 cap set forth in Kan. Stat. Ann. § 19a02(d). The parties are, however, at issue with whether plaintiff's award for loss of consortium should be considered non-economic damages and, thus, subject to the cap.
Kansas law recognizes that there are economic and non-economic components to a loss of consortium claim. See Cleveland v. Wong, 237 Kan. 410, 423, 701 P.2d 1301, 1312 (1985) (holding that a loss of consortium claim includes both the performance of acts of manual labor about the house and the performance of matrimonial, conjugal and connubial acts and duties). To determine whether the jury's award in this case encompassed non-economic components, the court must review its instruction to the jury on the loss of consortium claim.
The instruction given to the jury, which comes almost verbatim from P.I.K. 9.02, reads in pertinent part:
In arriving at the amount of recovery, you should consider the loss or impairment of plaintiff's ability to perform services in the household and in the discharge of her domestic duties, and the loss or impairment of plaintiff's companionship, aid, assistance, comfort and society.
In Wolfgang v. Mid-American Motorsports, Inc., 914 F. Supp. 434, 438-39 (D. Kan. 1996), the court concluded that plaintiff's award for loss of consortium was an economic damage not subject to the cap. In that case, the court's instruction to the jury, which was a modified version of P.I.K. 9.02, did not include the statement, "and the loss or impairment of plaintiff's companionship, aid, assistance, comfort and society." The court concluded that the omission of that portion of P.I.K. 9.02 removed any reference to the non-economic component of the loss of consortium claim and, accordingly, the instruction called for the jury to determine only the amount of damages attributable to economic loss. See id. at 439.
Unlike Wolfgang, the instruction in this case called for the jury to consider both economic and non-economic elements. With respect to the economic elements of the loss of consortium claim, plaintiff contends that she presented evidence at trial concerning the economic elements, such as loss of services, domestic duties, aid, and assistance. The court agrees. However, plaintiff presented no evidence concerning the monetary value of those duties and services. Accordingly, there was no basis on the record for the jury to competently determine the "economic" components of the claim. See Fenstermacher v. Telelect, Inc., Civ. A. No. 90-2159-0, 1992 WL 175114, at *13 (D. Kan. July 17, 1992). Moreover, because the jury was instructed to award one sum for all components of the claim, it is impossible for the court to now separate the economic and non-economic elements. See id. As such, the court finds that the award for loss of consortium constitutes non-economic damages and is, therefore, subject to the cap set forth in § 60-19a02(d).
The jury awarded a total of $487,500 for non-economic loss, which includes non-economic loss to date, future non-economic loss, and loss of consortium. Applying § 60-19a02(d), the court reduces this award to $250,000.
IT IS THEREFORE ORDERED that defendant's motion to limit the jury's award of non-economic loss and apply percentage of plaintiff's fault (Doc. 60) be granted in part. Accordingly, judgment should be entered for plaintiff in the amount of $275,021.66, which includes $12,521.66 for past medical expenses, $12,500 for future medical expenses, and $250,000 for non-economic damages.