Fratzke v. Murphy

¶1dissenting.

¶2I am now of the opinion that our decision in Burns v. Level, Ky., 957 S.W.2d 218 (1998), to the extent that it mandated the result here, was erroneous. I qualify my view because the precise holding in Bums was that the trial court did not abuse its discretion in granting a directed verdict upon the unitemized damages. Contrary to the assertion in the majority opinion, Bums did not hold that such a result should occur in every case.

¶3It is widely acknowledged that our purpose in prohibiting recitation of sums alleged as damages in the prayer for relief is to prevent public notoriety of shocking, outrageous claims which may bear little relationship to the actual damages sustained. To accommodate a defendant, CR 8.01 authorizes the use of interrogatories to obtain disclosure of the amount actually sought. For failure to answer interrogatories, a party may move, under CR 37 .04, for an order compelling answers. No motion to compel was made in this case.

¶4The effect of the majority opinion will be to bury a landmine in civil litigation where*274by a party may propound the interrogatories and thereafter sit silently by hoping the opposing party will, through inadvertence or neglect, fail to timely answer. A hard and fast rule prohibiting recovery of damages for failure to answer damages interrogatories will inevitably lead to a miscarriage of justice, as in the instant case. A far better approach would be to leave the remedy for failure to answer interrogatories to the sound discretion of the trial judge. The perspective of the trial judge with respect to analyzing prejudice, unfair surprise, and generally allocating responsibility is far superior to that of any appellate court. Unfortunately, we have abolished trial court discretion in this regard and announced an inflexible rule that will surely result in injustice.

¶5KELLER, J., joins this dissenting opinion.

¶6dissenting.

¶7I dissent because I believe that Bums v. Level, 957 S.W.2d 218 (1998), clearly and properly holds that the decision whether to grant a directed verdict with respect to plaintiffs’ unitemized damages claims on the basis of CR 8.01(2) is a matter left to the discretion of the trial judge. Because the trial judge did not abuse this discretion, I would reverse the decision of the Court of Appeals and reinstate the original verdict.

¶8Initially, I would note that the majority inconsistently gives decisive weight to the language of CR 8.01(2). With respect to alleged violations of this rule, the majority adopts a strict construction of the rule’s language and concludes that “CR 8.01(2) provides its own remedy” which is found within the rule’s language and is independent of whether defense counsel is actually surprised. In contrast, in order to address Fratzke’s contention that the supplemental interrogatory response filed with the trial court during trial satisfied CR 8.01(2), the majority feels the need to “import” language from CR 26.051 and clarify the rule’s language by analyzing policy rationale behind CR 8.01(2). With respect to the sanction associated with CR 8.01(2), questions of what information the defense possessed and when they possessed it are irrelevant. The same is not true, however, according to the majority, when it explains the “last amount stated” language.

¶9The last sentence of Section II of this Court’s opinion in Bums, supra, where the court addressed the trial court’s directed verdict on the plaintiffs’ claim for permanent impairment to earn money, reads, in part: “... we cannot conclude that the trial court abused its discretion in granting a directed verdict dismissing Appellant’s claim for those damages.” Burns, supra at 221-22 (emphasis added). I agree with Chief Justice Lambert that this Court held in Bumsthat the trial court involved in that case did not abuse its discretion in granting a directed verdict based on Burns’ failure to answer either the initial interrogatory or the supplemental interrogatory regarding itemization of unliquidated damages. The majority characterizes this language as “unfortunate.” I disagree with this characterization and dissent from the majority opinion because I do not believe this language appeared in Bumsas the result of some kind of accident. I feel that this Court discussed the trial court’s discretion regarding whether or not to grant a directed verdict within the Bumsopinion because it is relevant and important to the holding.

¶10*275Finally, I see nothing in the record which leads me to believe that Murphy was prejudiced by Fratzke’s failure to itemize her claims for unliquidated damages. The pleadings filed in this case clearly gave notice to Murphy that pain and suffering, future medical expenses, lost wages, and permanent impairment of power to earn labor and money were issues within this case that Fratzke intended to litigate. Fratzke did provide documentation showing the extent of her claim for past medical expenses, and she bound herself to a maximum verdict of $50,000, and thereby gave Murphy notice of the total amount sought in unliquidated damages, when she stipulated the amount in controversy to prevent removal to federal court. See, Cole v. Great Atlantic and Tea Co., 728 F.Supp. 1305, Note 2 (E.D.Ky.1990). Contrary to the statement in the majority opinion that “[t]he court entered a judgment in accordance with [the] verdict,” a verdict was only entered for $50,000.00, not for the total amount apportioned to Murphy by the jury.

¶11Although I write separately in dissent from Chief Justice Lambert, I wholeheartedly agree with his statements regarding the superior position of the trial judge to analyze and determine issues of this sort. Rules cannot think; judges can. It is for this that we should accord great discretion to trial judges in matters of this nature. I believe Bumsacknowledges this by applying an abuse of discretion standard. Seeing no abuse of discretion on these facts, I would reverse the Court of Appeals.

¶12LAMBERT, C.J., joins this dissent.