Rowan v. Sunflower Electric Power Corporation, et al.

Filing 614

MEMORANDUM AND ORDER denying 609 Defendant Sunflower's Motion to Alter the Verdict. The Clerk of the Court is directed to enter judgment in favor of plaintiff aginst Sunflower consistent with this order. Signed by District Judge John W. Lungstrum on 10/25/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Michael Rowan,
Plaintiff,
Case No. 15-9227-JWL
v.
Sunflower Electric Power Corporation and
Mid-Kansas Electric Company, LLC;
Defendants.

MEMORANDUM & ORDER
On August 29, 2013, plaintiff sustained electrical injuries when he was installing a guard
structure under an overhead power transmission line during a utility line construction project
near Medicine Lodge, Kansas.

At the time of his injury, plaintiff was employed by and

performing work for his employer, Track Utilities, LLC (“Track”). Plaintiff asserted negligence
claims against the owner of the transmission line, Mid-Kansas Electric Company, LLC (“MidKansas”); the operator of the transmission line, Sunflower Electric Power Corporation
(“Sunflower”); and the contractor responsible for the utility line construction project, Power
Constructors, Inc. (“Power”). The court granted Power’s motion for summary judgment after
concluding that plaintiff’s claims against Power were barred by the exclusive remedy provision
of the Kansas Workers’ Compensation Act. Plaintiff’s claims against Sunflower and MidKansas proceeded to trial.

On September 26, 2017, the jury returned its verdict.1 As reflected on the special verdict
form utilized in comparative fault cases, the jury attributed 23% of the fault to plaintiff; 15% of
the fault to defendant Sunflower; 0% of the fault to defendant Mid-Kansas; 29% of the fault to
Power Constructors, Inc; and 33% of the fault to Track Utilities LLC. The jury found that
plaintiff had sustained the following damages:
Medical expenses to date:
Future economic loss:
Noneconomic loss to date:
Future noneconomic loss:
Loss or impairment of services as spouse:

$182,382.59
$3,000,000.00
$750,000.00
$150,000.00
$0.00

Total Damages:

$4,082,382.59

The jury did not award punitive damages. After the jury returned its verdict, the parties agreed
to delay the entry of judgment pending Sunflower’s motion to alter the verdict with regard to
non-economic damages in accordance with K.S.A. § 60-19a02, which caps noneconomic
damages at $250,000 in personal injury actions. Sunflower has now filed that motion and asks
the court to reduce the jury’s award for noneconomic loss to $250,000.00. Sunflower has not
offered any suggestion as to how or when the court should apply the jury’s comparative fault
findings to the award for noneconomic loss. Thus, while it is not clear from Sunflower’s motion
because it has not provided any calculations as to the amount of the verdict under Sunflower’s
approach, it appears as though Sunflower is advocating a calculation under which the court
would first reduce the $900,000 award for noneconomic loss to $250,000, and then reduce that
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At the close of the evidence, the court retained portions of two motions under advisement—
plaintiff’s Rule 50 motion as to Sunflower’s statutory employer defense and Sunflower’s Rule
50 motion as to punitive damages—and submitted those issues to the jury. The jury rejected
Sunflower’s statutory employer defense and rejected plaintiff’s claim for punitive damages. To
the extent those motions remained under advisement, they are now denied as moot.
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award to reflect Sunflower’s fault (i.e., permit plaintiff to recover 15% of $250,000—or
$37,500—in noneconomic loss).
Plaintiff opposes the motion on the grounds that K.S.A. § 60-19a02 is unconstitutional
and, in any event, the court must first apply the jury’s comparative fault findings and then apply
the statutory cap. Like defendant, plaintiff has not performed any calculations for the court to
fully understand his argument. Plaintiff’s argument is somewhat confusing because if the court
applies the comparative fault findings first, then the statutory cap does not come into play at all.
Specifically, under plaintiff’s approach, the court would first reduce the $900,000.00 award for
noneconomic loss to reflect Sunflower’s fault, for a total of $135,000.00 in noneconomic loss
(15% of $900,000.00). Because plaintiff’s total recovery for noneconomic loss would be less
than the $250,000 statutory maximum, the court would not apply the cap. The court construes
plaintiff’s brief as advocating this methodology and it is clearly and unequivocally mandated by
Kansas law.

See K.S.A. § 60-19a02 (entry of judgment by the court “shall occur after

consideration of comparative negligence principles”); Gann v. Joeckel, 20 Kan. App. 2d 136,
138 (1994) (under Kansas law, percentages of fault are deducted from the total damages prior to
the application of the cap on damages).2
Sunflower concedes in its reply brief that the only “reasonable” approach and the one that
is consistent with the statute is to apply the percentage of comparative fault first and then, if
necessary, to reduce that award to the statutory cap. Under the court’s construction of the
parties’ submissions, then, the parties agree on what the result here should be—that plaintiff
2

Defendant construes plaintiff as advocating an approach under which plaintiff would recover
the statutory maximum of $250,000 from Sunflower and that the comparative fault percentage
would not be applied. The court does not read plaintiff’s brief to suggest that approach.
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recovers $135,000.00 in noneconomic loss from Sunflower (15% of $900,000.00) and that no
“capping” of damages is necessary.

Under that approach, the court need not address the

constitutionality of the statutory cap.
In sum, the court denies Sunflower’s motion to alter the verdict because that motion is
based entirely on an application of the statutory cap. The court will, however, direct that
judgment be entered in accordance with the jury’s comparative fault findings as follows:
Medical expenses to date:
Future economic loss:
Noneconomic loss to date:
Future noneconomic loss:
Loss or impairment of services as spouse:

$27,357.39
$450,000.00
$112,500.00
$22,500.00
$0.00

Total Damages:

$612,357.39

IT IS THEREFORE ORDERED BY THE COURT THAT defendant Sunflower’s
motion to alter the verdict (doc. 609) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT the Clerk of the Court enter
judgment in favor of plaintiff against Sunflower consistent with this order.

IT IS SO ORDERED.

Dated this 25th day of October, 2017, at Kansas City, Kansas.

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s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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