Small v. Ramsey et al

Filing 499

MEMORANDUM OPINION ACCOMPANYING JUDGMENT OERDER: The Court denies 486 the plaintiffs Motion to Enforce Agreement Between the Parties. The Court will enter judgment in accordance with its findings as to the applicable law as detailed in this order and the 498 Judgment Order. Signed by District Judge Irene M. Keeley on 9/14/12. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TOBBY LYNN SMALL,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:10CV121
(Judge Keeley)

JACK B. KELLEY, INC.,
AMERIGAS PROPANE, LP,
WILLIE McNEAL, and
JAMES R. RAMSEY,
Defendants.
MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
This memorandum opinion outlines the calculations set forth in
the Judgment Order entered in this case.
I.
As a threshold matter, for the reasons stated on the record at
the evidentiary hearing held on September 10, 2012 and discussed
briefly below, the Court DENIES the plaintiff’s Motion to Enforce
Agreement Between the Parties Regarding the Judgment in this Case
(dkt. no. 486).
“[T]o exercise its inherent power to enforce a settlement
agreement, a district court (1) must find that the parties reached
a complete agreement and (2) must be able to determine its terms
and conditions.” Hensley v. Alcon Labs., Inc., 277 F.3d 535, 540-41
(4th Cir. 2002) (citations omitted). Here, following a jury verdict
in favor of the plaintiff, the parties compromised on certain
figures which they then presented to the Court within a proposed

SMALL v. JACK B. KELLEY, ET AL.

1:10CV121

MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
judgment order. There was no meeting of the minds concerning a
settlement of this matter, however, and there was certainly no
complete agreement as to its material terms. See generally Wood v.
Virginia Hauling Co., 528 F.2d 423, 425 (4th Cir. 1975); Triad
Energy Corp. of West Virginia, Inc. v. Renner, 600 S.E.2d 285, 288
(W. Va. 2004).
Further, to the extent that this proposed order reflected an
agreement at all, it was one that the parties “‘desire[d] and
expect[ed]’” would be “‘reflected in, and be enforceable as, a
judicial decree.’” Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 280
(4th Cir. 2002) (quoting Rufo v. Inmates of the Suffolk County
Jail, 502 U.S. 367, 378 (1992)). Such proposals are “‘subject to
the rules generally applicable to other judgments and decrees,’”
and the Court may reject such an agreement where it inaccurately
reflects the law. Smyth, 282 F.3d at 280 (quoting Rufo, 502 U.S. at
367). As the parties’ proposed judgment order contained significant
legal errors, the Court will not place its “‘sanction and power’”
behind such a proposal by entering it as an order in this case.
Smyth, 282 F.3d at 280 (quoting United States v. Miami, 664 F.2d
435, 439–40 (5th Cir. 1981) (en banc) (Rubin, J., concurring).
Rather, as reflected in the Judgment Order entered this same day

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1:10CV121

MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
and discussed in detail below, the Court will enter judgment in
accordance with its findings as to the applicable law.
II.
The jury found the total damages sustained by the plaintiff,
Tobby Lynn Small (“Small”), to be as follows:
A)
B)
C)
D)
E)
F)
G)
H)

Past medical and hospital expenses
Past and future value of
lost household services
Past out-of-pocket expenses
for healthcare visits, mileage
Past personal services or
gratuitous services
Past and future physical pain
and emotional distress
Past and future aggravation
and inconvenience
Past and future humiliation
& permanent scarring
Past and future loss of enjoyment
of life and permanent injury

TOTAL DAMAGES

$ 262,877.83
$ 85,000.00
$ 461.70
$ 6,500.00
$ 275,000.00
$ 65,000.00
$ 225,000.00
$ 400,000.00
$1,319,839.53

The jury further apportioned the fault for these damages as
follows:
Willie McNeal
James R. Ramsey
Tobby Small
A.

23%
60%
17%

Reduction for Prior Settlements

Pursuant to the “settlement first” method adopted by the
Supreme Court of Appeals of West Virginia in Clark v. Kawasaki, the
Court “first credits the amount of the prior settlement against the
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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
jury verdict.” 490 S.E.2d 852, 857 (W. Va. 1997). The amount of all
prior settlements between the plaintiff and the former defendants
in this case is $492,500. Accordingly, the Court reduces the jury’s
total verdict of $1,319,839.53 by $492,500.00, which results in a
reduced judgment of $827,339.53.
B.

Reduction for Small’s Comparative Fault

After reducing the jury award by the prior settlement amounts,
the Court “then reduces the remainder by the percentage of the
plaintiff’s comparative negligence.” Id. The jury found Small 17%
at fault, and 17% of $827,339.53 is $140,647.72.1 As such, the
Court reduces the $827,339.53 judgment by $140,647.72, for a final
judgment amount of $686,691.81.
C.

Prejudgment Interest

State law governs the award of prejudgment interest in a
diversity case. Hitachi Credit America Corp. v. Signet Bank, 166
F.3d 614, 633 (4th Cir. 1999). West Virginia Code § 56-6-31(a)
provides, in pertinent part, that:
[I]f the judgment or decree, or any part thereof, is for
special damages, as defined below, or for liquidated
damages, the amount of such special or liquidated damages
shall bear interest from the date the right to bring the
same shall have accrued, as determined by the court . . .
Special damages includes lost wages and income, medical

1

All monetary figures are rounded to the nearest cent.

4

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
expenses, damages to tangible personal property, and
similar out-of-pocket expenditures, as determined by the
court.
W. Va. Code § 56-6-31(a). Prejudgment interest is “to be recovered
only on special or liquidated damages,” Grove v. Myers, 382 S.E.2d
536, 542 (W. Va. 1989), and is “intended to make an injured
plaintiff whole as far as loss of use of funds is concerned.” Syl.
pt.

1,

Buckhannon–Upshur

Cnty.

Airport

Auth.

v.

R

&

R

Coal

Contracting, Inc., 413 S.E.2d 404 (W. Va. 1991); see also Miller v.
Fluharty, 500 S.E.2d 310, 325 (1997) (“Prejudgment interest is a
part of a plaintiff’s damages awarded for ascertainable pecuniary
losses, and serves to fully compensate the injured party for the
loss of the use of funds that have been expended.”) (internal
quotations and citations omitted)).
i.

Amount of Special or Liquidated Damages

Small’s special or liquidated damages include past medical
expenses

($262,877.83),

past

loss

5

of

household

services

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
($17,825.00),2 past mileage ($461.70), and past gratuitous services
($6,500.00), all amounting to $287,664.53.
ii.

Calculation of Prejudgment Interest

W. Va. Code § 56-6-31 “plainly indicates that payment of
prejudgment interest shall be on the special damages portions of
judgments or decrees for the payment of money, not on verdicts.”
State Farm Mut. Auto. Ins. Co. v. Rutherford, 726 S.E.2d 41, 46
(W. Va. 2011) (emphasis in original).3 The Court thus “calculate[s]

2
The verdict form conflated “past and future value of lost household
services” into a single category of damages for which the jury awarded
$85,000.00. Although “[p]rudent defense counsel should . . . seek a
special interrogatory on the issue of special damages,” it is
nevertheless “the duty of the trial court to ascertain where possible,
the amount of special damages at trial” for the purpose of calculating
pre-judgment interest. Syl. Pt. 3, Beard v. Lim, 408 S.E.2d 772 (W. Va.
1991); see also Karpacs-Brown v. Murphy, 686 S.E.2d 746, 754 (W. Va.
2009) (“‘[W]hen the lawyers and the trial court can sort out the parts
of a judgment on which interest should be added, even without special
interrogatories, the trial court should do so.’" (citation omitted)).
Importantly, however, “the trial court should give the plaintiff the
benefit of any doubt in the calculation of prejudgment interest” when the
defendant fails to seek a special interrogatory. Syl. Pt. 3, Beard, 408
S.E.2d 772. Here, Small’s economic expert testified that the total value
of the plaintiff’s past household services was $17,825.00, a sum which
was then subject to a downward adjustment dependent upon the jury’s
determination of Small’s ability to perform those services. Giving the
plaintiff every benefit of the doubt, the Court finds that $17,825.00
represents the absolute outside limit of his damages for past loss of
household services and, as such, will award pre-judgment interest on this
figure.
3

Although Rutherford analyzed a prior version of W. Va. Code § 56-6-31,
the relevant language between the versions is identical. Compare W. Va.
Code § 56-6-31 (1981) (“if the judgment or decree, or any part thereof,
is for special damages, as defined below, or for liquidated damages, the
amount of such special or liquidated damages shall bear interest from the
date the right to bring the same shall have accrued, as determined by the

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1:10CV121

MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
prejudgment interest on the special damages portion” of the final
judgment award of $686,691.81, not on the total verdict amount of
$1,319,839.53. Id.
The special damages in this case total $287,664.53, which
represents 21.8%4 of the total jury verdict of $1,319,839.53.
Accordingly, to determine the “special damages portion” of the
final judgment, the Court calculates 21.8% of the final judgment
amount of $686,691.81, which equates to $149,698.81. Therefore,
pursuant to W. Va. Code § 56-6-31, the plaintiff is entitled to
prejudgment interest on the amount of $149,698.81, which bears
interest at a rate of 7.00% per annum from and including February
21, 2009, the date of the accident, until September 14, 2012, the
date of entry of judgment.
D. Post-Judgment Interest
Federal law governs the award of post-judgment interest in
diversity cases. Hitachi, 166 F.3d at 633 (citing Forest Sales
Corporation v. Bedingfield, 881 F.2d 111, 111-12 (4th Cir. 1989)).
Pursuant to 28 U.S.C. § 1961, a successful party may collect

court”) with W. Va. Code § 56-6-31 (2006) (“if the judgment or decree,
or any part thereof, is for special damages, as defined below, or for
liquidated damages, the amount of special or liquidated damages shall
bear interest at the rate in effect for the calendar year in which the
right to bring the same shall have accrued, as determined by the court”).
4

All percentages are rounded to the nearest tenth.

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
post-judgment interest “on any money judgment in a civil case
recovered in a district court.” As such, pursuant to 28 U.S.C.
§ 1961, the federal rate of post-judgment interest applies in this
case.5

As

of

the

date

of

entry

of

the

Judgment

Order,

the

applicable rate is .17%.
E.

Joint and Several Liability

The parties do not dispute that W. Va. Code § 55-7-24, which
governs joint and several liability for multiple defendants, does
not apply to this case because it is not a “cause of action
involving the tortious conduct of more than one defendant.” W. Va.
Code § 55-7-24(a).
In Rowe v. Sisters of Pallottine Missionary Society, the
Supreme Court of Appeals of West Virginia held that the term
“defendant” as used in

W. Va. Code § 55-7B-9 (1986), a prior

version of the Medical Professional Liability Act, did not refer to

5

To calculate the applicable post-judgment interest
http://www.federalreserve.gov/releases/h15/current/.

rate,

The specific rate referred to in the statutes is found in the
table under the two columns headed WEEK ENDING. The two dates
under those columns refer to the Friday averages of the last
two weeks. Under those columns you need to go down to the row
which states U.S. government securities - Treasury constant
maturities nominal- 1-year. Where the row and columns meet that is the rate you use.
Administrative Office of the U.S. Courts, Post–Judgement Interest
Rates, http:// www.uscourts.gov/FormsAndFees/Fees/PostJudgement
InterestRates.aspx.

8

see

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
“non-party tortfeasors.” Syl. Pt. 9, Rowe v. Sisters of Pallottine
Missionary Society, 560 S.E.2d 491 (W. Va. 2001). Most pertinently
for the purposes of the instant case, the Rowe court specifically
found that the term “defendant” as used in the statute did not
include

those

former

defendants

who

had

“settled

and

[were]

dismissed from the action.” Id. at 500.
Four years after Rowe, in 2005, the legislature again selected
the term “defendant” as the operative language in W. Va. Code 55-724, a statute meant to reform the common law doctrine of joint and
several liability in West Virginia. Although the result is somewhat
counter-intuitive,

it

is

nevertheless

a

well-settled

legal

principle that:
When the Legislature enacts laws, it is presumed to be
aware of all pertinent judgments rendered by the judicial
branch. By borrowing terms of art in which are
accumulated the legal tradition and meaning of centuries
of practice, the Legislature presumably knows and adopts
the cluster of ideas attached to each borrowed word in
the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless
otherwise instructed.
Syl. Pt. 3, CB&T Operations Co., Inc. v. Tax Com’r of State, 564
S.E.2d 408 (W. Va. 2002) (quoting Syl. pt. 2, Stephen L.H. v.
Sherry L.H., 465 S.E.2d 841 (W. Va. 1995)). Given the prior
decision in Rowe and the legislature’s subsequent selection of the
term “defendant” in W. Va. Code § 55-7-24, the Court is constrained

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
to find that, because James R. Ramsey settled his dispute with
Small prior to the trial of this case, he is not a “defendant” for
the purposes W. Va. Code § 55-7-24. Cf. Rowe, 560 S.E.2d at 500.
Defaulting to the common law of West Virginia, the defendants
Jack B. Kelley, Inc., Amerigas Propane, LP, and Willie McNeal6 are
jointly and severally liable for the full amount of the final
judgment in this case. See Syl. Pt. 14, Strahin v. Cleavenger, 603
S.E.2d 197 (W. Va. 2004) (“Tortfeasors whose wrongful acts or
omissions, whether committed intentionally or negligently, concur
to cause injury are joint tortfeasors who are jointly and severally
liable

for

the

damages

which

result

from

the

wrongs

so

committed.”).
III.
For the reasons set forth above, the Court concludes that the
defendants Jack B. Kelley, Inc., Amerigas Propane, LP, and Willie
McNeal

are

jointly

and

severally

liable

in

the

amount

of

$686,691.81, with pre-judgment interest at the daily rate of $28.71
for each day from and including February 21, 2009 until September
14, 2012, and totaling $37,380.42, resulting in a total judgment
including all accrued pre-judgment interest of $724,072.23. After
6

Jack B. Kelley, Inc. and Amerigas Propane, LP, are vicariously liable
for the tortious conduct of McNeal, and were treated as one defendant for
the purposes of trial.

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MEMORANDUM OPINION ACCOMPANYING JUDGMENT ORDER
September 14, 2012, the total judgment including all accrued
pre-judgment interest shall accrue post-judgment interest at the
rate of .17% per annum, computed daily and compounded annually,
until fully paid.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: September 14, 2012

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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