Nelson v. Columbia Gas Transmission, LLC et al

Filing 382

MEMORANDUM OPINION & ORDER: (1) Plaintiff's renewed motion for injunctive relief 362 , Columbia Gas's motion for judgment notwithstanding the verdict on emotional distress and for a set off as to the breach of contract verdict 365 , and plaintiff's motion for new trial 366 be, and are hereby, DENIED; (2) Michels' renewed motion for summary judgment 379 be, and is hereby, GRANTED; and (3) A separate judgment in Michel's favor shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 5/13/2019.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:17-cv-90 (WOB-CJS)

LAURA NELSON

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

COLUMBIA GAS TANSMISSION,
LLC, ET AL

DEFENDANTS

This matter is before the Court on various post-trial motions.
(Docs. 362, 365, 366, 379).

The Court concludes that further oral

argument is unnecessary for the resolution of these motions.
Procedural Background
This bitterly contested case arises out of a contract entered
into by plaintiff and defendant Columbia Gas Transmission, LLC
(“Columbia Gas”), granting an easement for defendant to install a
high-pressure gas transmission line through plaintiff’s property.
The contract is dated August 12, 2015 and required, inter
alia, that Columbia Gas restore plaintiff’s property “as near as
practical” to its original condition after the completion of the
construction.
The

(Doc. 132-13).

actual

laying

of

the

line

and

the

restoration

was

performed by Columbia Gas as well as by various subcontractors.

One of these subcontractors was defendant Michels Corporation,
which performed certain clearing work pursuant to a subcontract
with Columbia Gas.

Michels had no contract with plaintiff.

After extensive pretrial proceedings, the case came on for a
jury trial before this Court on December 3, 2018, resulting in a
verdict on December 12, 2018.

(Doc. 360).

The jury found against

Columbia on plaintiff’s breach of contract claim and awarded her
$50,000 for economic damages and $150,000 for serious emotional
disturbance flowing from the breach of contract.
The principal issue at trial was whether Columbia Gas had
restored

plaintiff’s

property

“as

near

as

practical”

to

its

original condition and, if not, how much it would cost to do so.
Plaintiff offered expert testimony that the restoration performed
was insufficient because not enough topsoil was returned to the
area in question, and the expert opined that it would require
another $2 million to effect proper restoration.
Prior to trial, the Court bifurcated plaintiff’s negligence
and trespass claims against Michels.

Michels paid into Court the

amount (as stated by plaintiff’s counsel) of the compensatory
damages that plaintiff claimed Michels owed her for improperly
blowing woodchips onto plaintiff’s property outside of the rightof-way.

(Doc. 246). 1

1

In her final pretrial memorandum, plaintiff listed the amount
of special damages for the removal of the woodchips as $10,000.
2

In addition, the Court denied plaintiff’s motion to file a
fourth amended complaint, which sought to add a fraud claim against
Columbia Gas and a prayer for punitive damages against Michels.
(Docs. 200-2, 318).
The motions now before the Court are: (1) plaintiff’s renewed
motion for injunctive relief (Doc. 362); (2) Columbia Gas’s motion
for judgment notwithstanding the verdict on the emotional distress
damages and for a set off as to breach of contract verdict; (3)
plaintiff’s motion for new trial (Doc. 366); and (4) Michels’
renewed motion for summary judgment (Doc. 379).
The Court will address these motions seriatim.
Analysis
A. Plaintiff’s Renewed Motion for Injunctive Relief
After the jury returned its verdict in this matter, plaintiff
immediately filed a renewed motion for injunctive relief seeking
specific performance against Columbia Gas.

(Doc. 362).

This

motion is not well taken.
The issue of the cost of restoration of plaintiff’s property
“as near as practical” was submitted to a jury in this matter, and

(Doc. 233 at 21). Although Michels paid money into Court,
plaintiff has never accepted it or settled her claims with
Michels. The Court notes that it was the intent of the Court at
the final pretrial conference that the payment of the $9,000
into Court would settle the claim against Michels, but the
parties apparently did not realize this and consider the claim
against Michels to be unresolved.
3

the

jury

awarded

plaintiff

$50,000.

While

plaintiff

is

disappointed with that figure, she may not invoke the alternative
remedy of specific performance.
This is not a case where specific performance is necessary
because plaintiff cannot be made whole by money damages — for
example, to enforce a contract for the purchase of a unique piece
of property, as in a case upon which plaintiff relies.

See Billy

Williams Builders and Developers Inc. v. Hillerich, 446 S.W.2d 280
(Ky. 1969).

Indeed, the Hillerich Court noted:

It is recognized that specific performance is an
equitable remedy devised to apply in cases where common
law actions for damages were found inadequate to afford
a full remedy. . . .
We need to keep in mind that in the contract in question
vendor (appellant) agreed to sell lot 102 and to
construct a house according to “submitted plans and
specifications.” . . .
Appellees argue that their purpose in entering into the
contract was to obtain this particular property in this
particular neighborhood due to [aged] relatives nearby.
Id. at 283-84 (emphasis added).

The Court therefore found that

specific performance to compel the sale of the property in question
was appropriate.
Here,

plaintiff

submitted

evidence

at

trial

that,

with

respect to Columbia Gas’s breach of contract, she could be made
fully whole due by money damages — $2 million, in particular, for
the restoration of her land.
lower

figure

does

not

make

The fact that the jury chose a much
specific
4

performance

appropriate.

Having proceeded on a damages theory, and obtained an award of
damages, plaintiff cannot now switch to specific performance. This
would amount to double recovery, since she received an award under
the jury verdict to perform the work for which she now seeks
specific performance.
This motion will, therefore, be denied.
B. Columbia Gas’s Motion for Judgment as a Matter of Law 2
Columbia Gas first seeks a set off of $9,000 from the jury’s
$50,000 breach of contract damages award, the amount that Michels
paid into Court upon being bifurcated from the trial.

This is

without merit.
Plaintiff did not accept the money paid into Court by Michels,
and she has not benefitted from those funds.
Next, Columbia Gas attacks the award for emotional distress.
First, the Court finds no prejudice to defendant regarding the
last-minute

substitution

of

a

psychologist

after

plaintiff’s

previously identified witness passed away unexpectedly.

Defendant

had the opportunity to depose the new witness and cross-examine
him at trial.

During discovery, defendant never requested to have

a psychologist of its own examine plaintiff or testify at trial,
and the Court does not see how the substitution of Dr. Ganshirt
for Dr. Bichelmeir triggered such a need.

2

Since 1991, these motions have been properly titled “motions
for judgment as a matter of law.”
5

The Court also finds no prejudice in the jury instruction
regarding emotional distress.

The interrogatory instructed the

jury to award damages only if it found by a preponderance of the
evidence that the breach of contract caused plaintiff “serious
emotional

disturbance.”

Plaintiff’s

evidence

on

this

issue

consisted of her own testimony, that of Dr. Ganshirt, as well as
that of other witnesses who knew plaintiff.

It was within the

province of the jury to weigh this evidence and decide the issue.
The Court cannot say that there was a “complete absence of proof”
on the issue of emotional damages so as to warrant the relief
Columbia Gas seeks.

See Layne v. Huish Detergents, Inc., 40 F.

App’x 200, 205 (6th Cir. 2002) (citations omitted).
The

Kentucky

state

courts

almost

always

follow

the

Restatement(Second) of Contracts and, in the opinion of this Court,
would adopt the section upon which this award was based.

See Doc.

198. 3

3

The section of the Restatement in question states:
§ 353.

Loss Due to Emotional Disturbance

Recovery for emotional disturbance will be excluded
unless the breach also caused bodily harm or the
contract or breach is of such kind that serious
emotional disturbance was a particularly likely
result.
Restatement (Second) of Contracts § 353 (Am. Law Inst.
1981).
6

Finally,

although

a

separate

interrogatory

on

the

foreseeability of such distress was not included in the jury
instructions,

the

Court

concludes

this

did

not

render

the

instructions “confusing, misleading and prejudicial” when viewed
as a whole.
that

Id. at 209. 4

emotional

distress

Whether the contract was of the type
might

result

from

its

breach

was

a

threshold matter of law for the Court.
Therefore, Columbia Gas’s motion for judgment as a matter of
law will be denied.
C. Plaintiff’s Motion for a New Trial
Plaintiff moves for a new trial on the basis that the jury’s
economic damages award is “grossly inadequate.”

The Court is not

persuaded.
Plaintiff’s motion relies heavily on the testimony of her
expert witness, Brian Stegman, who opined that replacing the
topsoil on the property in question would cost $1,744,418.00, and
therefore plaintiff asserts that the jury was required to accept
this testimony.

Of course, Columbia Gas offered the testimony of

its witnesses who testified that the property had already been
restored “as near as practical” and offered, in the alternative,
much lower estimates of what it would cost to add topsoil and seed
to the property.

4

The Court will not reiterate here the basis for its ruling that
emotional damages are recoverable in this case. See Doc. 198.
7

The jury was given the standard instruction regarding the
credibility of witnesses which, in part, instructs that the jury
is “free to believe everything that a witness said, or only part
of it, or none of it at all.”

(Doc. 360 at 4).

The instruction

also states: “Use your common sense and your everyday experience
in dealing with other people.

And then decide what testimony you

believe, and how much weight you think it deserves.”

(Id. at 6).

Thus, the jury was free to accept all, some or none of these
witnesses’
property

testimony

“as

near

as

about

the

cost

practical.”

of

restoring

Neither

side

plaintiff’s
requested

an

instruction defining “practical,” but one common meaning is that
a given action, although possible, may be too expensive to be
“practical.”

This is probably the reason Columbia Gas used the

term in its contract and is very likely the basis for the jury’s
verdict.
Therefore, plaintiff’s motion for a new trial will be denied.
D. Michel’s Renewed Motion for Summary Judgment
The Court first notes that the operative pleading in this
matter, the Third Amended Complaint (Doc. 194), asserts negligence
and trespass claims against Michels and seeks punitive damages
against Columbia Gas only.

Plaintiff’s motion to file a Fourth

Amendment Complaint, which included a request for punitive damages
against Michels, was denied.

(Doc. 318).

8

Having reviewed the parties’ briefs and relevant authority,
the Court concludes that Michels is entitled to summary judgment
on plaintiff’s claims against it.
In Presnell Constr. Managers, Inc. v. EH Contr., LLC, 134
S.W.3d 575 (Ky. 2004), the Supreme Court of Kentucky held that
“one who is not a party to the contract or in privity thereto may
not maintain an action for negligence which consists merely in the
breach of the contract.”

Id. at 579 (citation omitted).

The Court

further held that unless the defendant in question breached some
duty to the plaintiff that was independent of its duties under the
contract

in

question

(to

which

plaintiff

plaintiff’s tort claim would not lie.

was

not

a

party),

Id. at 580.

Two years ago, the Supreme Court of Kentucky again applied
this rule to bar a negligence claim brought against a subcontractor
with whom the plaintiff had no contract, where the factual basis
for

the

claim

was

indistinguishable

from

the

subcontractor’s

duties under its contract with the general contractor.

Superior

Steel, Inc. v. The Ascent at Roebling’s Bridge, LLC, 540 S.W.3d
770, 792 (Ky. 2017).
Here, plaintiff’s claims for negligence and trespass against
Michels are based on the blowing of woodchips outside of the right
of way.

However, Michels (or its subcontractor) performed these

actions pursuant to its contract with Columbia Gas, and plaintiff
identifies no duty on Michels’ part independent of its contractual
9

duties to Columbia.

The claims thus fail as a matter of law under

the above authorities.

Further, since the claims against Michels

are based on its contract with Columbia, punitive damages may not
be recovered.

See KRS 411.184(4).

For these reasons, Michels is entitled to summary judgment. 5

Therefore, the Court having reviewed this matter, and being
otherwise sufficiently advised,
IT IS ORDERED that:
(1)

Plaintiff’s renewed motion for injunctive relief (Doc.
362), Columbia Gas’s motion for judgment notwithstanding
the verdict on emotional distress and for a set off as
to

the

breach

of

contract

verdict

(Doc.

365),

and

plaintiff’s motion for new trial (Doc. 366) be, and are
hereby, DENIED;
(2)

Michels’ renewed motion for summary judgment (Doc. 379)
be, and is hereby, GRANTED; and

(3)

A

separate

judgment

in

Michel’s

favor

shall

enter

concurrently herewith.
This 13th day of May 2019.

5

The Court thus need not reach Michels’ alternative argument that
it cannot be held liable for the actions of its subcontractor.
10

11