J. K. J. v. Polk County Sheriff's Department et al
Filing
311
ORDER granting 283 Motion to modify the attorneys' fees and costs award; granting in part and denying in part 285 Motion to stay execution of judgment and waive the supersedeas bond requirement; granting in part and denying in part 288 M otion to alter or amend the judgment to add prejudgment interest; denying 291 Christensen's motion to join Polk County's motion to stay in case 3:15-cv-00433-wmc; granting 282 Motion to modify the attorneys' fees and costs award; granting in part and denying in part 284 Motion to stay execution of judgment and waive the supersedeas bond requirement; granting in part and denying in part 287 Motion to alter or amend the judgment to add prejudgment interest; denying 290 Christensen's motion to join Polk County's motion to stay in case 3:15-cv-00428-wmc Signed by District Judge William M. Conley on 5/17/18. Associated Cases: 3:15-cv-00428-wmc, 3:15-cv-00433-wmc (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
J.K.J.,
Plaintiff,
v.
OPINION AND ORDER
15-cv-428-wmc
POLK COUNTY and DARRYL L.
CHRISTENSEN,
Defendants.
and
M.J.J.,
v.
Plaintiff,
POLK COUNTY and DARRYL L.
CHRISTENSEN,
15-cv-433-wmc
Defendants.
Despite a jury trial, issuance of decisions on various post-trial motions, and entry of
final judgment in both of these cases, three additional motions are still pending before this
court. Plaintiffs seek to add to the court’s attorneys’ fee and cost award to include fees
incurred as a result of post-trial briefing. (‘428 dkt. #282; ‘433 dkt. #283.) Plaintiffs also
seek to alter or amend the judgment to include prejudgment interest. (‘428 dkt. #287;
‘433 dkt. #288.) Finally, defendant Polk County seeks to stay execution on the judgment
and a waiver of the supersedeas bond requirement (‘428 dkt. #284; ‘433 dkt. #285), with
defendant Christensen joining in the motion to stay (‘428 dkt. #290; ‘433 dkt. #291).
For the reasons described below, the court will: (1) grant plaintiffs’ motion to modify the
fee and cost award in the amount requested; (2) grant in part and deny in part plaintiffs’
motion to alter the judgment to add prejudgment interest, commencing the award from
the date of the jury verdict, not the date of injury; and (3) grant in part and deny in part
the County’s motion to stay and to waive the supersedeas bond requirement, but will deny
the same for defendant Christensen.
OPINION
I. Motion to Modify Attorneys’ Fees and Costs Award
In their motion and supporting materials, plaintiffs’ counsel represents that they
have incurred an additional $58,905.00 in fees and $866.70 in costs, and therefore
requests the court modify the prior award of fees and costs of $539,822.62 to $599,549.32.
(Pls.’ Mot. (dkt. #282; Bannink Decl. (dkt. #283).)1 Defendants did not oppose plaintiffs’
original motion for attorneys’ fees and costs, nor do they oppose this requested
modification. Accordingly, the court will again grant that motion.
II. Motion to Alter or Amend Judgment to Add Prejudgment Interest
In the next motion, plaintiffs seek to amend the judgement to award prejudgment
interest. “Prejudgment interest is an element of complete compensation.” West Virginia v.
United States, 479 U.S. 305, 310–11 (1987); see also Rivera v. Benefit Tr. Life Ins. Co., 921
F.2d 692, 696 (7th Cir. 1991) (explaining that “[t]he award of prejudgment interest for a
federal law violation is governed by federal common law”).
1
Unless otherwise noted, citations to the docket are to the ‘428 case.
2
The Seventh Circuit in
particular has held that “prejudgment interest should be presumptively available to victims
of federal law violations.” Rivera, 921 F.2d at 696 (citing Gorenstein Enters., Inc. v. Quality
Care-USA, Inc., 784 F.2d 431, 436 (7th Cir. 1989)). Still, there are important limits on
an award of prejudgment interest. In particular, the Seventh Circuit has cautioned against
an award when the jury’s damages award takes into consideration the time value of money.
This concern is most clearly illustrated in cases where the jury awards an amount for lost
wages, combining both losses for past and future wages. See, e.g., Williamson v. Handy Button
Mach. Co., 817 F.2d 1290, 1298 (1987). As the court explained in Williamson, “[o]nly
back pay and expenses in the past may be augmented by prejudgment interest.” Id.
Similarly, an award of prejudgment interest is also not appropriate if the jury’s award
included interest. See Raybestos Prods. Co. v. Younger, 54 F.3d 1234, 1246-47 (7th Cir.
1995) (presuming that the jury’s award included an interest augmentation).
Here, the jury was instructed to consider the “present value of the medical care and
supplies that the plaintiff . . . is reasonably certain to need and receive in the future” and
the “physical, mental and emotional pain and suffering and disability or loss of normal life
that plaintiff has experienced and is reasonably certain to experience in the future.”
(Damages Instr. (dkt. #248) 1.) Counsel for plaintiffs in his closing argument on damages,
similarly asked the jury to determine the amount of money “it will take to compensate
[plaintiffs] for the pain and misery that was caused by the sexual assault,” and specifically
asked the jury to take into consideration their current mental health state and the fact that
“[t]hey need treatment.” (Trial Tr. (dkt. #260) 7, 16.) As such, the jury presumptively
awarded plaintiffs compensatory damages based on the injuries they presented at trial in
3
2017, reflecting the value of money at the time of the verdict, not at the time of injury.
Therefore, the court finds no basis to enter a prejudgment interest award to account for
the time lapse between the injury and that verdict. 2
At the same time, plaintiffs have necessarily missed out on the time value of money
between the date of the verdict and the entry of final judgment. As such, the court will
award prejudgment interest for that period of time. See Gorenstein Enters., 784 F.2d at 436
(explaining that without prejudgment interest, “the defendant has an incentive to delay”).
Here, the parties agree that the court should use the prime rate in awarding prejudgment
interest, although plaintiffs propose calculating the interest accrued using the actual
effective prime interest rate, adjusting for all fluctuations during the damages period. The
County, on the other hand, asks the court to apply a simple average of the prime rate over
the period in question. The County’s approach not only seems more practical, it appears
to be more widely accepted by the Seventh Circuit. See, e.g., Cement Div., Nat’l Gypsum Co.
v. City of Milwaukee, 144 F.3d 1111, 1114 (7th Cir. 1998) (“[T]he best starting point is to
award interest at the market rate, which means an average of the prime rate for the years
in question.” (internal citation and quotation marks omitted)). As such, this court will
adopt that approach as well. 3
In reviewing Seventh Circuit cases on this subject, the court could not find any cases approving
of an award of prejudgment interest on a compensatory damages award for physical and mental
pain at issue in this case. To the contrary, the cases cited by the parties and additional ones
reviewed by the court, all involve damages awards, or portions of damages award (e.g., back pay in
Title VII claims) where the damages were tied to a date in the past and the dollar amount reflected
that past date.
2
The County makes one more request: given the length of time between the verdict and entry of
judgment, approximately one year, the County requests that the court make an equitable
determination as to the length of time after the post-trial motion was briefed for which the County
3
4
Finally, the parties dispute how to compound the interest.
Plaintiffs propose
monthly; the County proposes annually. The court opts to compound annually, consistent
with the approach for postjudgment interest provided in 28 U.S.C. § 1961 See Ruppert v.
Alliant Energy Cash Balance Plan, No. 08-CV-127-BBC, 2011 WL 13134639, at *3 (W.D.
Wis. Mar. 18, 2011). Having determined to award prejudgment interest for the period
from the date of the verdict, February 3, 2017, to the date of judgment, February 6, 2018,
applying the average prime rate over the relevant period, and compounding annually, the
court will awards each plaintiff $83,600.00 in prejudgment interest. 4
III. Motion to Stay Execution and Waiver Supersedeas Bond Requirement
The County filed a motion to stay execution of the judgment and waive the
supersedeas bond requirement until final resolution of defendants’ appeal. As explained
in its motion, the County was insured from 2011 through 2014, the years during which
the plaintiffs were sexually assaulted by Christensen, by a series of Public Entity Liability
insurance policies issued by Wisconsin County Mutual Insurance Company (“WCMIC”).
(Bisek Aff. (dkt. #286) ¶ 3.) The limit of liability for each of those policies is $10,000,000
per occurrence, with a deductive of $10,000 per occurrence. (Id.) As administrator of
those policies, David Bisek, Senior Vice President of Claims and Litigation with Aegis
should pay interest at the higher prejudgment rate. While the court agrees that this was
inordinately long, it is disinclined to adopt the County’s proposal of awarding prejudgment interest
until August 4, 2017 (the approximate mid-way point between the date of the verdict and the date
of judgment). Instead, the court will award “prejudgment interest” up to the date of entry of
judgment itself.
The court calculates the average prime rate over this 12-month period as 4.18%. See Prime Rate
History-Monthly, http://www.fedprimerate.com/prime_rate_history-monthly.htm.
4
5
Corporation, avers that “WCMIC has accepted coverage, without reservation of rights, for
the claims asserted by M.J.J. and J.K.J. against Polk County.” (Id. at ¶ 4.) Bisek further
avers that, “[i]n the event Polk County is unsuccessful on appeal, WCMIC will provide
coverage under the terms of the relevant policies to pay the judgments, including any award
of attorney’s fees, costs, and interest.” (Id.)
In considering whether to waive the bond requirement under Federal Rule of Civil
Procedure 62(d), the Seventh Circuit Court of Appeals instructs that this court consider
the following factors:
(1) the complexity of the collection process; (2) the amount of
time required to obtain a judgment after it is affirmed on
appeal; (3) the degree of confidence that the district court has
in the availability of funds to pay the judgment; (4) whether
the defendant's ability to pay the judgment is so plain that the
cost of a bond would be a waste of money; and (5) whether the
defendant is in such a precarious financial situation that the
requirement to post a bond would place other creditors of the
defendant in an insecure position.
Dillon v. City of Chi., 866 F.2d 902, 904-05 (7th Cir. 1998) (internal citations and
quotation marks omitted). The following factors weigh in favor of waiving the bond
requirement: the apparent lack of dispute over the application of the insurance policies to
cover final judgments here; WCMIC’s apparent solvency; the sworn representations made
by WCMIC’s administrator about coverage under these insurance policies; and Polk
County’s ultimate liability should payment not be made timely under the policies. Even
so, plaintiffs raise legitimate concerns about the ease and timeliness of collection under the
insurance policies. Accordingly, the court will grant the County’s motion for a stay pending
appeal provided within 21 days of this order: (1) WCMIC provides a formal, written
6
assurance of payment of the final judgment in full, including all accrued interest, attorneys’
fees and costs, within 30 days of remand of the appeal for enforcement of that judgment;
and (2) Polk County provides a written acknowledgement of its obligation to do the same
within 60 days of remand should WCMIC fail to perform on its assurance timely.
Defendant Christensen attempts to piggy-back on the County’s motion, but his
reasoning makes no sense. He has no insurance policy; instead, Christensen simply argues
that he is judgment proof, having no funds to satisfy the judgment entered against him.
As such, the court will deny his request to waive the supersedeas bond. Given that he
appears incapable of obtaining such a bond, the court will also deny his motion to stay
execution.
ORDER
IS IT ORDERED that:
1) Plaintiffs M.J.J. and J.K.J.’s motions to modify the attorneys’ fees and costs
award (‘428 dkt. #282; ‘433 dkt. #283) are GRANTED. Including all wards
by the court to date, therefore, plaintiffs jointly are now entitled to $599,549.32
in total attorneys’ fees and costs against defendants Polk County and Darryl L.
Christensen, jointly and severally.
2) Plaintiffs’ motions to alter or amend the judgment to add prejudgment interest
(‘428 dkt. #287; ‘433 dkt. #288) are GRANTED IN PART AND DENIED IN
PART. Plaintiffs are each awarded $83,600.00 in prejudgment interest against
defendants Polk County and Darryl L. Christensen, jointly and severally.
3) Defendant Polk County’s motion to stay execution of judgment and waive the
supersedeas bond requirement (‘428 dkt. #284; ‘433 dkt. #285) is GRANTED
IN PART AND DENIED IN PART. The stay is granted for 21 days to provide
Polk County with time to file the two submissions described above. If Polk
County provides those submissions, the stay is extended until resolution of the
pending appeal. If Polk County fails to provide those submissions, the stay will
be lifted after the 21-day period.
7
4) Defendant Christensen’s motion to join Polk County’s motion to stay (‘428 dkt.
#290; ‘433 dkt. #291) is DENIED.
5) The clerk of court is directed to enter a second amended judgment reflecting this
order.
Entered this 17th day of May, 2018.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?