Welch v. Time Well Spent Express LLC et al

Filing 28

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 9/29/16. (SMH)

FILED
2016 Sep-29 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GRADY L. WELCH,
Plaintiff,
vs.
TIME WELL SPENT EXPRESS LLC
d/b/a TWS EXPRESS; WILLIE
JAMES CRAWFORD II,
Defendants.

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CASE NO. 2:13-CV-1169-SLB

MEMORANDUM OPINION
Following the Entry of Default against defendants, Time Well Spent Express [TWS]
and Willie James Crawford, II, (doc. 6),1 the court allowed plaintiff, Grady L. Welch, the
opportunity to submit evidence supporting his claim for damages; the court also held a
hearing on damages, at which Welch testified.

Based on the Complaint, plaintiff’s

submissions, his hearing testimony, and the relevant law, the court finds Welch is entitled
to recover damages in the amount of $123,886.31 from defendants Crawford and TWS.
I. DEFAULT JUDGMENT STANDARDS
Defendants’ default is deemed their “admission of the facts cited in the Complaint,
which [facts] by themselves may or may not be sufficient to establish a defendant’s liability.”
Pennsylvania Nat. Mut. Cas. Ins. Co. v. Edmonds, Civil Action No. 09-0089-WS-B, 2010

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

WL 761332, *3 (S.D. Ala. Mar. 3, 2010)(internal quotations and citations omitted). “Stated
differently, a default judgment cannot stand on a complaint that fails to state a claim.” Id.
(quoting Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir.
1997))(internal quotations omitted). “The law is quite clear that a plaintiff seeking a default
judgment is confined to the specific factual allegations and demands delineated in the
Complaint. A default judgment does not give the plaintiff a blank check to recover from the
defaulting defendant any losses it had ever suffered from whatever source. Rather, recovery
is limited to the kind and amounts of losses set forth in the pleadings.” Id. at *6 (internal
quotations and citations omitted).
Therefore, “a plaintiff seeking default judgment must show the Court what [his]
damages are, how they are calculated, and where they come from.” Patterson v. Walden,
Civil Action No. 13-0109-WS-B, 2014 WL 852410, *4 (S.D. Ala. Mar. 5, 2014)(quoting
PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp. 2d 1287, 1294 (S.D. Ala.
2010)).

This court may not award damages without an evidentiary hearing or

“demonstration by detailed affidavits establishing the necessary facts.” Adolph Coors Co.
v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985)(quoting
United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)). “Even in the default
judgment context, ‘[a] court has an obligation to assure that there is a legitimate basis for any
damage award it enters.’” Chartis Aerospace Ins. Services, Inc. v. AUA, Inc., No. 2:12-CV-

2

1087-JHH, 2013 WL 2249095, *6 (N.D. Ala. May 21, 2013)(quoting Anheuser Busch, Inc.
v. Philpot, 317 F.3d 1264, 1266 (11th Cir. 2003), other citations omitted).
II. STATEMENT OF FACTS
In his Complaint, plaintiff, Grady L. Welch, alleges the following facts:
6. In the early morning hours on January 12, 2012, Plaintiff Grady L.
Welch was traveling North on U.S. Interstate 65 in Shelby County, Alabama[,]
driving a tractor and tanker-trailer for Quality Carriers, Inc.[,] when he
experienced a blowout of one of the rear exterior passenger[-]side tires on his
tanker-trailer.
7. Mr. Welch pulled over to the right side of the interstate and into the
emergency lane/shoulder where he parked his vehicle near mile marker 236.
8. Mr. Welch turned on all of the flashers on his vehicle and then
exited his vehicle to place reflective triangles around his vehicle running from
the rear of the tanker-trailer toward the front of his vehicle in accordance with
the applicable policies and procedures governing such roadside situations for
commercial drivers.
...
10. After determining that he could not repair the blown[-]out tire on
his tanker-trailer by himself, Mr. Welch contacted Quality Carriers, Inc.[,]
dispatch to request roadside assistance to repair the blown out tire so he could
continue his delivery route. Quality Carriers, Inc.[,] dispatch informed Mr.
Welch that it was sending a mechanic to his location to help him repair the
blown[-]out tire and instructed Mr. Welch to wait for the mechanic to arrive.
Mr. Welch got back into the tractor cab of his vehicle and sat in the driver’s
seat waiting for the mechanic to arrive.
11. Mr. Welch had locked down the wheels and had set/engaged the
brakes on his vehicle as his vehicle and tanker-trailer sat in the emergency
lane/shoulder on the right side of the interstate.
12. While Mr. Welch was waiting for the mechanic to arrive . . . in the
cab of his tractor . . . with all of his flashers on and the reflective triangles
properly placed around his vehicle, Defendant Willie James Crawford, II[,] .
3

. . was driving a tractor and semi-trailer heading North on U.S. Interstate 65
in Shelby County, Alabama, just South of Mr. Welch’s location.
13. Defendant Crawford was driving a commercial delivery route for
Defendant Time Well Spent Express, LLC d/b/a TWS Express . . . at [that]
time . . . .
14. At all times relevant to this Complaint, Defendant Crawford was
an agent, employee, servant, representative, and/or affiliate of Defendant TWS
Express and was acting and/or operating within the line and scope of said
agency, employment, servitude, representation, and/or affiliation on the
morning of January 12, 2012.
15. At all times relevant to this Complaint, Defendant Crawford had
traveling with him in the TWS Express vehicle four (4) passengers: a
twenty-two (22) year-old woman; a two and one-half (2 and ½) year-old boy;
a one (1) year-old girl; and a three (3) month-old girl.
16. As Defendant Crawford and the TWS Express vehicle approached
Mr. Welch and the Quality Carriers vehicle from the South on U.S. Interstate
65, Defendant Crawford fell asleep, and the TWS Express vehicle drifted into
the emergency lane/shoulder on the right side of the interstate where Mr.
Welch and the Quality Carriers vehicle were parked . . . .
17. Shortly before 6:00 a.m. on January 12, 2012, Defendant Crawford
and the TWS Express tractor and semi-trailer struck and collided with the rear
of the Quality Carriers tanker-trailer . . . .
18. The impact and collision also severely injured Mr. Welch’s neck,
back, shoulders, hips, legs, and other parts of his body to such an extent that
he has not been able to work as a commercial driver/hauler since the date of
the accident and is limited to light[-]duty office work.
19. Upon information and belief, when Defendant Crawford and the
TWS Express vehicle struck Mr. Welch and the Quality Carriers vehicle,
Defendant Crawford and the TWS Express vehicle were traveling
approximately 65 to 70 miles-per-hour, with no evidence of speed reduction
or application of brakes on the TWS Express vehicle prior to impact.
20. Despite the fact that Mr. Welch had locked down the wheels and
had set/engaged the brakes on his vehicle, the collision and impact propelled
4

the Quality Carriers tractor and tanker-trailer, with Mr. Welch trapped inside
the tractor cab, approximately 30 to 40 feet forward.
(Doc. 1 ¶¶ 6-20.) Crawford and TWS are deemed to have admitted these facts by virtue of
their default. See Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206
(5th Cir. 1975),2 cited in Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1278
(11th Cir. 2005).
Welch alleges claims of negligence, wantonness, and/or recklessness against Crawford
and vicarious liability against TWS with regard to the motor vehicle accident. (Doc. 1 ¶¶
22-25.) He also alleges negligent and/or wanton hiring, supervision, retention, and /or
entrustment against TWS. (Id. ¶¶ 27-31.) Welch seeks compensatory damages, including
pain and suffering, as well as punitive damages against defendants. (See doc. 17.) He filed
a Summary of Damages, in which he claims the following:
(1) Trover Solutions, Inc.[,] Worker’s Compensation Subrogation Lien
(as of August 5, 2014): Medical – $43,888.35; Wages – $47,842.23;
(2) Blue Cross Blue Shield Worker’s Compensation Subrogation Lien
(as of July 17, 2014): Medical – $60.73;
(3) MedChex: Medical Subrogation Lien (as of December 5, 2013):
[Medical –] $2,095.00;
(4) [L]ost wages and earning capacity in an amount ranging from
$468,700 to $688,000;
(5) Pain and suffering, mental anguish, and emotional distress;
2

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981)(en banc).
5

(6) Punitive damages in an amount to be determined in the Court’s
discretion to the Defendants for their wrongful conduct and to deter similar
individuals and entities from committing the same or similar wrongful acts.
(Id.) He filed evidence of medical treatment and worker’s compensation payments following
the accident, as well as the Affidavit of John W. McKinney, III, in support of his claim for
lost future wages and earning capacity, the Affidavit of John Dory Curtis, M.D., a treating
physician, and the decision of the Commissioner of Social Security, finding Welch disabled.
(See generally docs. 14, 19-22, 24-3, and 24-4.) He also testified in open court. The court
has reviewed all of the evidence submitted by Welch.
III. LIABILITY
This court has jurisdiction over this case based on diversity of citizenship among the
parties. See 28 U.S.C. § 1332(a)(1)(“The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between – (1) citizens of different States . . . .”).
Plaintiff is a citizen of Alabama; defendants are alleged to be citizens of Georgia. (Doc. 1
¶¶ 1-3.)
“[A] federal court in a diversity case is required to apply the laws, including principles
of conflict of laws, of the state in which the federal court sits.” Manuel v. Convergys Corp.,
430 F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941)); see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)(“Except in matters
governed by the Federal Constitution or by acts of Congress, the law to be applied in any

6

case is the law of the state.”). This court, sitting in Alabama, “must apply Alabama’s
choice-of-law rules.” Dowdy v. Suzuki Motor Corp., 567 Fed. Appx. 890, 892 (11th Cir.
2014)(citing Manuel, 430 F.3d at 1139).
“The choice-of-law rule traditionally applied by Alabama in tort cases is lex loci
delicti.” Bryant v. Cruises, Inc., 6 F. Supp. 2d 1314, 1317 (N.D. Ala. 1998). “Lex loci
delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama
court will determine the substantive rights of an injured party according to the law of the
state where the injury occurred.” Etheredge v. Genie Indus., Inc., 632 So. 2d 1324, 1325
(Ala. 1994)(quoting Fitts v. Minnesota Mining & Manufacturing Co., 581 So. 2d 819, 820
(Ala. 1991)). The motor-vehicle accident that forms the basis of Welch’s claims occurred
in Alabama. (Doc. ¶¶ 6, 17.) Therefore, this court will apply Alabama law to determine
whether the allegations in the Complaint support the causes of action Welch has alleged.
A. COUNT ONE – NEGLIGENCE/WANTONNESS/RECKLESSNESS
1. Negligence
As set forth above, Welch alleges that Crawford struck the rear end of his tanker when
he fell asleep while driving. In Alabama, “In order to establish a negligence claim, a plaintiff
must prove: ‘(1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate
causation; and (4) damage or injury.’” Miller v. Cleckler, 51 So. 3d 379, 383 (Ala. Civ. App.
2010)(quoting S.B. v. Saint James Sch., 959 So. 2d 72, 97 (Ala. 2006)(quoting Martin v.
Arnold, 643 So. 2d 564, 567 (Ala. 1994)). “[A] vehicle operator is under a duty to use
reasonable care in operating the vehicle.” Jones v. Baltazar, 658 So. 2d 420, 421 (Ala.
7

1995). “Going to sleep while driving is evidence of negligence.” Alexander ex rel. Estate
of Alexander v. Annas, Civ. Action No. 06-0106-CB-B, 2007 WL 625905, *2 (S.D. Ala. Feb.
26, 2007)(citing Whiddon v. Malone, 220 Ala. 220, 124 So. 516 (1929)).
The court finds the allegations of Welch’s Complaint adequately state a cause of
action against Crawford for negligence.
2. Wantonness
As set forth above, Welch alleges the cause of the accident was Crawford’s falling
asleep while driving.3 The Alabama Court of Civil Appeals has set forth Alabama’s law
regarding the issue of wantonness under such circumstances:
In Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301 (1968), . . . our supreme
court reiterated the standard for determining the issue of alleged wantonness:
“Wantonness is the conscious doing of some act or omission of some
duty under knowledge of the existing conditions and conscious that
from the doing of such act or omission of such duty injury will likely
or probably result. Before a party can be said to be guilty of wanton
conduct, it must be shown that with reckless indifference to the
consequences he consciously and intentionally did some wrongful act
or omitted some known duty which produced the injury.”
Lankford, 283 Ala. at 26, 214 So. 2d at 302. The court in Lankford articulated
for the first time in Alabama the elements of wanton misconduct in a situation
where a driver is accused of falling asleep at the wheel, quoting with approval
the following language from 28 A.L.R.2d:

3

Welch alleges that Crawford had four passengers traveling with him. (Doc. 1 ¶ 15.)
He does not allege that the presence of the four passengers caused the accident. He alleges
that Crawford fell asleep and his vehicle drifted into the emergency lane where it struck
Welch’s vehicle. (Id. ¶ 16.)
8

“‘A driver of an automobile is not guilty of wanton or wilful
misconduct in falling asleep while driving unless it appears that he
continued to drive in reckless disregard of premonitory symptoms.’”
Lankford, 283 Ala. at 26-27, 214 So. 2d at 303 (quoting 28 A.L.R.2d 72).
This standard for wantonness has been held to apply also in cases of
diminished alertness, where a driver is alleged to have had a “consciousness
or awareness of sleepiness, tiredness, and fatigue but continued to drive with
reckless indifference to the consequences.” Tew v. Jones, 417 So. 2d 146
(Ala.1982). Thus, the requisite knowledge for the imposition of liability in
such cases is “a realization of the ‘premonitory symptoms’ of sleep.” Id. at
147.
Roszell v. Martin, 591 So. 2d 511, 513 (Ala. Civ. App. 1991).
Welch’s Complaint contains no allegations that Crawford continued to drive after he
became aware he was sleepy, tired, or fatigued. Therefore, the court finds that the Complaint
does not allege a cause of action based on wanton and/or reckless conduct.
3. Vicarious Liability
“Under [the] doctrine [of respondeat superior], a master shall be civilly liable for the
tortious acts of his servant.” Ware v. Timmons, 954 So. 2d 545, 549 (Ala. 2006)(quoting
Philadelphia & Reading R.R. v. Derby, 55 U.S. (14 How.) 468, 486 (1852))(internal
quotations omitted). “The vicarious liability of a putative master under the rule of respondeat
superior depends upon the liability of the putative servant.” Wheeler v. George, 39 So. 3d
1061, 1090 (Ala. 2009)(quoting Hollis v. City of Brighton, 885 So. 2d 135, 141-42 (Ala.
2004)(citing Larry Terry Contractors, Inc. v. Bogle, 404 So. 2d 613, 614 (Ala.1981))).
Because the court finds that Welch’s Complaint does not allege a wantonness claim
against Crawford, such a claim asserted against TWS as Crawford’s employer is due to be
9

dismissed. The court finds the facts alleged in the Complaint are sufficient to support
Welch’s claim against TWS based on Crawford’s negligence while driving as the agent or
employee of TWS.
B. COUNT TWO – NEGLIGENT/WANTON HIRING, TRAINING, SUPERVISION,
RETENTION, AND ENTRUSTMENT
In addition to alleging that Crawford negligently caused the accident at issue when he
fell asleep while driving, Welch alleges (1) TWS “negligently and/or wantonly hired, trained,
supervised, and/or retained Defendant Crawford as a driver, employee, agent, servant,
representative, and/or affiliate, and negligently and/or wantonly hired, trained, supervised,
and/or retained the services of Defendant Crawford as operator of Defendant TWS Express’
vehicle involved in the subject collision,” (2) it “negligently and/or wantonly entrusted
Defendant Crawford with the use of a tractor and semi-trailer,” and (3) it “knew or should
have known of the incompetency and/or unfitness of Defendant Crawford with regard to
operation of the subject TWS Express tractor and semi-trailer.” (Doc. 1 ¶¶ 27-29.)
The Alabama Supreme Court recognizes the torts of negligent/wanton
entrustment, negligent/wanton hiring, negligent/wanton supervision, and
negligent/wanton training. See Southland Bank v. A & A Drywall Supply Co.,
Inc., [21 So. 3d 1196, 1214-1217] (Ala. 2008)(negligent training), Armstrong
Bus. Servs. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001)
(negligent/wanton supervision); CP & B Enters., Inc. v. Mellert, 762 So. 2d
356 (Ala. 2000)(negligent/wanton hiring); Bruck v. Jim Walter Corp., 470 So.
2d 1141, 1144 (Ala. 1985)(negligent/wanton entrustment).
...
The torts at issue have common elements. Namely, to prove a claim
under Alabama law for any of [these torts], a plaintiff must demonstrate that
the employer knew, or in the exercise of ordinary care should have known, that
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its employee was incompetent. See Southland Bank, [21 So. 3d at 1214-17]
(negligent training); Armstrong Bus. Servs., 817 So. 2d at 682
(negligent/wanton supervision); Bruck, 470 So. 2d at 1144 (negligent/wanton
entrustment); Sanders v. Shoe Show, Inc., 778 So. 2d 820, 824 (Ala. Civ.
App.2000) (negligent/wanton hiring).
Wright v. McKenzie, 647 F. Supp. 2d 1293, 1297 (M.D. Ala. 2009). In order to properly
allege a cause of action for negligent or wanton failure to train, supervise, retain, hire, and/or
negligent or wanton entrustment, Welch must allege that Crawford caused his injuries
because he was incompetent and that TWS knew or should have known of Crawford’s
incompetency. Southland Bank, 21 So. 3d at 1215. “A mistake or single act of negligence
on the part of an employee does not establish incompetency: ‘Negligence is not synonymous
with incompetency. The most competent may be negligent. But one who is habitually
negligent may on that account be incompetent.’” Id. at 1216 (quoting Pritchett v. ICN Med.
Alliance, Inc., 938 So. 2d 933, 941 (Ala. 2006))(emphasis in original; internal citations
omitted). “Under Alabama law, the heart of the competency issue is whether the Plaintiff’s
evidence bears on [the employee/defendant’s] ‘ability (or inability) to properly drive a
vehicle.’” Wright, 647 F. Supp. 2d at 1299 (quoting Halford v. Alamo Rent-A-Car, 921 So.
2d 409, 413-14 (Ala. 2005)).
In this case, Welch has alleged no facts to indicate that Crawford was incompetent to
drive and that TWS knew or should have known about the incompetency before the motorvehicle accident that injured Welch. In this case, Welch has not alleged that Crawford had
a history of accidents or that Crawford was otherwise incompetent to drive. The instant
accident – which occurred after TWS hired Crawford, trained him, supervised him, retained
11

him, and entrusted him with its vehicle – “would not reasonably allow the inference by a jury
of a want of ability suitable to the task, either as regards natural qualities or experience, or
deficiency of disposition to use one’s abilities and experience properly or the converse of
reliability, or repeated acts of carelessness and incompetency.” Southland Bank, 21 So. 3d
at 1217 (internal quotations omitted). “[A]t best [the accident] shows a mistake or single act
of negligence, or that [Crawford negligently caused the accident],” id.; it does not show that
Crawford was unable to properly drive due to habitual negligence.
The court finds that the Complaint does not allege a cause of action for negligent or
wanton hiring, training, supervision, retention, and entrustment. Therefore, these claims
against TWS will be dismissed.
IV. DAMAGES
A. PUNITIVE DAMAGES
Pursuant to Alabama law, “Punitive damages may not be awarded in any civil action,
except civil actions for wrongful death . . . , other than in a tort action where it is proven by
clear and convincing evidence that the defendant consciously or deliberately engaged in
oppression, fraud, wantonness, or malice with regard to the plaintiff.” Ala. Code. § 6-1120(a). Because the court finds Welch’s wantonness claims are due to be dismissed, it
necessarily finds no basis for awarding punitive damages.
B. SUBROGATION CLAIMS
Welch claims the following damages:

12

(1) Trover Solutions, Inc. Worker’s Compensation Subrogation Lien (as of
August 5, 2014): Medical - $43,888.35; Wages - $47,842.23 [total of
$91,730.58];4
(2) Blue Cross Blue Shield Worker’s Compensation Subrogation Lien (as of
July 17, 2014): Medical - $60.73;
(3) MedChex: Medical Subrogation Lien (as of December 5, 2013):
$2,095.00;
(Doc. 17 [footnote added].) The record contains sufficient evidence to establish (1) Welch
received medical treatment and wages at the expense of his employer’s workers’
compensation carrier, his insurer, and medical-services providers, and (2) these entities have
asserted subrogation liens against Welch, (see docs. 14-1 to 14-4), although none of these
entities have sought to intervene in the instant action. The court has reviewed the evidence
submitted by Welch and finds this evidence sufficient to establish that these amounts were
paid as a result of the accident made the basis of this lawsuit and, therefore, are a proper
measure of compensatory damages. See Edwards v. Allied Home Mortgage Capital Corp.,
962 So. 2d 194, 206 (Ala. 2007)(“Compensatory damages are intended to reimburse a

4

Trover’s Case Statement for Indemnity/Lost Wages, setting forth the medical
expenses paid as part of Welch’s worker’s compensation claim, includes claims for amounts
for which the payee is “Welch, Grady.” (See doc. 14-1 at 6-7, 9-11.) In a footnote, Trover
states, “If an insured’s deductible or out-of-pocket expenses are listed, we are requesting
payment as a courtesy to our client’s insured.” (Id. at 12.) Of the amount listed on the Case
Statement as medical expenses, $43,888.35, Welch is listed as the “payee” for $6,217.91.
These amounts would not be payable to Trover pursuant to their lien. Rather, to the extent
actually recovered from defendants, $6,217.91 would be payable to Welch as compensatory
damages.
13

claimant only for the loss suffered by reason of its injury.”)(citing Torsch v. McLeod, 665
So. 2d 934, 940 (Ala.1995)).
Therefore, the court awards Welch NINETY-THREE THOUSAND EIGHT
HUNDRED EIGHTY-SIX AND 31/100 DOLLARS ($93,886.31), as lost wages and
medical expenses.
C. PAIN AND SUFFERING, MENTAL ANGUISH, AND EMOTIONAL DISTRESS
Welch submitted the affidavit of John Dory Curtis, M.D. to support his claim for
damages. Dr. Curtis testified, “I am also a treating physician of Grady L. Welch, who is and
has been a patient of mine. I have examined, diagnosed, and treated Welch multiple times
since January 12, 2012[,] for signs, symptoms, and injuries that manifested themselves in
Welch after he was involved in a work-related motor vehicle accident on or about January
12, 2012.” (Doc. 19-1 ¶ 2.) According to medical records submitted by Welch, Dr. Curtis
saw him on two occasions, July 26, 2013, and August 23, 2013. (Doc. 24-3 at 3, 12, 15, 42.)
In his Affidavit, Dr. Curtis opined:
6. Having reviewed [Welch’s] medical information and those materials
included in Exhibit “B,”5 having personally examined, observed, diagnosed,
and treated Welch myself, and applying my education, skill, training, and
many years of experience as an orthopedic surgeon regularly practicing in the
State of Alabama and providing hands-on patient care to patients like Welch,
it is my medical opinion, within a reasonable degree of medical certainty, that
the signs, symptoms, injuries, pain, and medical expenses experienced and
incurred by Welch subsequent to January 12, 2012, including those outlined
in the Complaint filed in Welch’s lawsuit, were caused by and were the result

5

Exhibit B to Dr. Curtis’s Affidavit is found in the court’s record at docs. 20 to 22.
14

of Welch’s involvement in the subject motor vehicle collision that occurred on
January 12, 2012.
7. It is also my professional opinion that the medical services, care, and
treatment provided to and received by Welch since the subject motor vehicle
accident on January 12, 2012 and the resulting subrogation liens, medical
expenses, medical bills, invoices, and other expenses related to Welch’s
receipt of said medical services, care, and treatment were reasonable and
necessary under the circumstances, given Welch’s signs, symptoms, injuries,
pain, and health condition subsequent to the subject motor vehicle accident.
(Doc. 19-1 ¶¶ 6-7 [footnote added].) The court finds this testimony to lack the detail
necessary to persuasively establish the extent of Welch’s injuries suffered as a result of the
motor-vehicle accident. However, the court finds Dr. Curtis’s treatment note from August
23, 2013, one of only two office visits, supports an inference that Dr. Curtis did not fully
credit Welch’s complaints of pain. Dr. Curtis noted:
—
—
—

all studies show few problems
mild L5-S1 stenosis (foraminal)
no nerve root impingement in neck/thoracic or lumbar

—

Assessment – pain far out of proportion to findings

—

Rec[ommendation] – finish series of block[s]
•
if no improvement needs to see a spine surgeon – but doubt any
intervention needed.

No need to see me again.
(Doc. 24-3 at 70.)
Dr. Curtis’s finding that Welch’s complaints of pain were not supported by medical
findings on examination is echoed in other medical evaluations. On February 20, 2012,
Roger T. Boyington, D.O., noted, “Decreased grip strength right upper extremity[;]
15

however[,] I am suspicious of malingering due to observed effort and patient being [right]
hand dominant. When asked if he could squeeze harder he said no but actually did squeeze
some harder.” (Doc. 14-10 at 4.) A couple of weeks later, Welch was examined by Fleming
Brooks, M.D., who noted, “It is very difficult to examine [Welch]. He cries out in pain
anytime his neck is moved. He has pain to light touch and pain to tapping on top of the
shoulders and when I tap him on top of the head lightly he cries out in pain.” (Id. at 22.) He
found Welch had “multiple positive Waddell’s signs,”6 (id. at 23), which are indicative of

6

See also Davis v. ReliaStar Life Ins. Co., 665 F. Supp. 2d 1369, 1377 n.16 (N.D. Ga.

2009):
There are eight Waddell signs:
1. Superficial skin tenderness. Physical causes for back pain do not
produce skin pain or tenderness (pain with light touch).
2. Non-anatomic pain. Physical conditions that cause pain affect
specific involved structures and do not cross boundaries beyond those
structures. When the distribution of the pain crosses anatomical
boundaries into regions of structures that are not affected, the pain
cannot have a physical cause.
3. Simulation of spine loading (axial loading). While the patient is
standing, downward pressure on the top of the head cannot produce
back pain due to physical factors. Only functional back pain will
increase . . . .
4. Simulated rotation. When the shoulders and pelvis are rotated
together in a standing patient, there is no stress on the back. Back pain
from this maneuver is functional . . . .
5. Distraction straight-leg raising. Distraction tests are positive where
the pain is not consistent between different versions of the same action.
If a straight-leg raising test produces back pain, the same pain should
16

malingering or a psychological condition, rather physical condition, is causing pain, see Wick
v. Barnhart, 173 Fed. Appx. 597, 598 (9th Cir. 2006)(“[T]he Waddell test does not . . .
distinguish between malingering and psychological conditions.” (citing Gordon Waddell,
et al., Nonorganic Physical Signs in Low-Back Pain, 5 Spine 117, 117-25 (Mar.-Apr.1980))).
After Dr. Curtis last saw Welch, Michael Davis, M.D., noted:
At this point he is not getting any better. I do not see anything that warrants
surgical intervention. I recommend that we can consider rheumatologic

occur with the patient sitting and one knee extended straight out.
Patients with purely functional pain are unaware of this and describe
no pain while in a sitting knee-extended position . . . .
6. Regional sensory change. Numbness that does not follow
anatomical nerve distributions . . . , cannot be due to nerve
impingement. Such a non-anatomical pattern is sometimes called a
“stocking” sensory loss, and is almost always due to functional
complaints.
7. Regional weakness. Loss of muscle strength, like skin sensation,
follows anatomical nerve distributions. Weakness in combinations of
muscles that are not innervated by the same spinal nerve roots or
peripheral nerves cannot be explained anatomically.
8. Over-reaction. Inappropriately large pain reactions to mild touching
during physical examination also indicate to an experienced clinician
that the patient’s stated symptoms do not correspond to the effects
expected from a physical abnormality.
Tennenhouse, 2 ATTORNEY’S MEDICAL DESKBOOK § 18:4. The signs are
“caused by non-anatomical (functional) factors and implies that the back pain
has no physical cause.” Id. The presence of one or two Waddell signs
indicates that the patient may be anxious or eager to cooperate. Id. “Three or
more are usually considered sufficient to make a diagnosis of functional
disorder or deliberate deception (malingering) and to rule out physical
abnormality.”
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workup under his regular insurance because it is atypical for somebody to hurt
going on for 2 years like he is. . . .
. . . At this point with neck pain, thoracic back pain, lumbar spine pain, I do
not think I have a solution to his problems, nor do I see anything that would
warrant aggressive intervention. . . . I am going to place this patient at MMI
[maximum medical improvement]. He has restrictions as per the functional
capacity evaluation dated 01/22/2013. He has a 0% impairment.
(Doc. 14-11 at 3.)
To the extent Welch continues to experience back and neck pain, the court finds this
pain is not caused by injuries he suffered as a result of the motor-vehicle accident made the
basis of this lawsuit. Although the court accepts Welch’s testimony that he suffered some
pain in the weeks immediately following the accident, the court rejects his testimony that his
continuing pain, allegedly experienced months and years after the accident, was “caused” by
injuries he suffered in the accident. See Sessions Co. v. Turner, 493 So. 2d 1387, 1390 (Ala.
1986)(“The general rule is that compensatory damages are intended only to reimburse one
for the loss suffered by reason of an injury to person or property.” (citing Youngblood v.
Bailey, 459 So. 2d 855 (Ala.1984); Matheny v. Petersen, 276 Ala. 478, 163 So. 2d 635
(1964))).
Welch appeared before the court and testified as to his pain and suffering. The court
finds Welch’s testimony not entirely credible to the extent he testified that his continuing
pain was caused by injuries suffered in the motor-vehicle accident. Although the court finds
that, as a result of the motor vehicle accident made the basis of his complaint Welch suffered
some pain, it will not award any damages for future pain. The court will award Welch
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THIRTY THOUSAND DOLLARS ($30,000) for pain and suffering caused by the motorvehicle accident.
D. LOST FUTURE WAGES AND EARNING CAPACITY
Welch claims “lost wages and earning capacity in an amount ranging from $468,700
to $688,000.” (Doc. 17.) The court declines to award any amount for future lost wages,
diminished earning capacity, and/or future medical expenses as the court finds that this type
of damages is not established by the evidence. Although plaintiff presented evidence that his
continuing pain limits his ability to work, the court finds insufficient evidence to convince
it that his continuing pain was caused by injuries suffered in the motor-vehicle accident.7
Based on the lack of objective evidence of a permanent injury caused by the accident
and evidence of symptom magnification and/or a psychological component to Welch’s
continuing complaints of pain, the court finds that Welch’s failure to return to work and his
diminished capacity are not the result of injuries he sustained in the motor-vehicle accident.
Therefore, the court declines to award any damages for future wages and/or diminished
earning capacity.

7

The court has considered the findings of the Social Security Administration that
Welch is permanently disabled. (See doc. 24-4.) The issue before this court is limited to
whether and to what extent Welch was injured in the motor-vehicle accident, see Session
Co., 493 So. 2d at 1390, and not whether Welch was injured and/or disabled due to medical
conditions not caused by the accident. Given the lack of objective medical imaging and
statements from his doctors regarding his symptoms, the court is not convinced that Welch’s
inability to work is the result of injuries sustained in the motor-vehicle accident.
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CONCLUSION
For the foregoing reasons, the court is of the opinion that Welch is entitled to a default
judgment on his negligence claim against Crawford and TWS in the amount of ONE
HUNDRED TWENTY-THREE THOUSAND, EIGHT HUNDRED EIGHT-SIX AND
31/100 DOLLARS ($123,886.31), and his remaining claims are due to be dismissed. A
separate Judgment will be entered contemporaneously with this Memorandum Opinion.
DONE this 29th day of September, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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