Opinion
Civil Action No. 5:98CV-147(R)
July 26, 1999.
OPINION ORDER
This is an automobile accident case in which partial summary judgment was granted in favor of the Plaintiff on the issue of liability. A jury trial was held on the issue of damages on May 3, 1999.
The jury awarded Plaintiff $6,025.90 in medical expenses; $4,824 in lost wages; nothing for permanent impairment; and one dollar for mental and physical suffering.
Plaintiff moves for a new trial asserting that the one dollar awarded for pain and suffering is inconsistent with the award for medical expenses and lost wages. It is a longstanding rule under Kentucky law that "an award for past medical expenses must be accompanied by an award for past pain and suffering," Prater v. Coleman, 955 S.W.2d 193, 195 (Ky.App. 1997). Kentucky courts have recognized that an award for one dollar is as incomplete an award as zero. Cooper v. Fultz, 812 S.W.2d 497, 500 (Ky. 1991). Defendant argues that this rule is not absolute.
The Kentucky Supreme Court opened the door for this argument in Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991), when it remanded the case to the trial court to determine whether the judgment for "-0-" was "adequate for pain and suffering considering the evidence heard by the jury." Id. It is arguable that since the Supreme Court did not automatically remand for a new trial, it altered the rule regarding pain and suffering.
The Sixth Circuit has recognized in dicta that under Cooper, a zero verdict for pain and suffering following an award for medical expenses is "not necessarily impermissible under Kentucky law." Adam v. J. B. Hunt Transport, 130 F.3d 219, 225 (6th Cir. 1998). The Adam Court held that a zero verdict lost income and pain and suffering was not adequate in that case considering it was undisputed that Plaintiff missed work while in the hospital as a direct result of the accident.
Defendant relies on Judge Gudgel's concurrence in Prater, who wrote that there need not necessarily be an award for damages for past pain and suffering in every case in which there is an award of medical expense under certain circumstances. Prater, 955 S.W.2d at 195 . Judge Gudgel stated that "it is certainly not uncommon for a person involved in an accident to consult a physician or go to an emergency room purely as a precautionary measure, even though any pain incurred as a result of the accident is negligible." Id. In such circumstances, Judge Gudgel determined that damages for pain and suffering would not be necessary.
The case at hand would not fit the circumstances described by the Prater concurrence because the jury also awarded damages for lost wages. If the accident caused Plaintiff to miss work, the medical expenses could not have been incurred solely as a precautionary measure, and a zero award for pain and suffering would be inconsistent.
Therefore, an new trial must be granted in this case on the issue of damages for pain and suffering.
THEREFORE, IT IS ORDERED:
(1) Plaintiff's motion for a new trial (dkt. # 36) is GRANTED, to the extent that a new trial will be held on the issue of damages for pain and suffering. A trial by jury will be held on August 18, 1999.
(2) The Clerk of Court shall reinstate this case on the active docket of the Court.