LouisvilleLaw.Commentary.  This is not an uncommon situation for those along the borders of this Commonwealth with many out of state insurers not registered to do business (and therefore not deemed to provide the minimum no fault coverage per statute).  Since the defendant driver was not a "secured person', then it seems the PIP payer is back to old common law subrogation against the individual tortfeasor to recover its payments rather than the unique no-fault subrogation against the liability carrier.

On an another note, Scmidt (the Indiana driver) also sought to use the release signed during settlement as a defense.  However, the COA noted this was not raised or preserved at trial and was, therefore, not addressed in their decision.

Instruction Number 5
If you found against Dr. Heit, under
Instruction No. 2, you shall award such
damages if you believe, from the evidence,
that will fairly and reasonably compensate
for the following damages allegedly incurred
by filing Verdict Form B.

VERDICT FORM B
We, the jury, find for the Plaintiff, Sandra
Zolkiewicz, and award her the following sums
of money which will fairly and reasonably
compensate her for such of the following
damages for which we believe the evidence
she has sustained as a direct result of the
fault of Dr. Heit:

(a) Pain and suffering she has endured or
is reasonably certain to endure in the
future (Not to exceed $380,000)
(Emphasis added.)

COA concluded the jury’s original verdict of $100,000 pursuant to this instruction was not amenable to reduction by application of the comparative fault percentages.  

Rather, the Court presumed that the jury -- as instructed – took into consideration its previous percentage determination of fault when it finally calculated the amount of damages Sandra sustained “as a direct result of the fault of Dr. Heit.”

Plaintiffs were not seeking a new trial based on the allegedly erroneous instructions, but were are asking that the judgment should conform to the jury’s verdict, a verdict rendered pursuant to instructions accepted by both sides.

In light of the plain wording contained in Instruction No. 5 and Verdict Form B, no reasonable interpretation could be drawn that the jury believed its award to constitute the total sum of the damages sustained by Sandra rather than the amount attributable to Dr. Heit. 

The court erred in reducing the judgment and that the correct award to Sandra was the original verdict prior to its amendment.

There was also an excellent analysis of a challenge for cause based upon a juror's bias regarding medical negligence, lawsuits, health care etc. because his neighbor (who was a doctor) had to close his practice due to the doubling of malpractice insurance premiums.

STEPHEN

Bottom line - Everybody achieves a victory (to some degree) from this appeal.

In Cooper v. Fultz, the Kentucky Supreme Court rejected the contention that a jury's pain and suffering award was automatically inadequate as a matter of law when a jury intentionally indicated no pain and suffering award but awarded damages for medical expenses or lost wages. Rather, whether the 
award represents "[e]xcessive or inadequate damages, appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court," CR 59.01(d), is a question dependent on the nature of the underlying evidence.

It is reasonable for the trial court to give her the opportunity before her rights are permanently severed from this child. In the meantime, the child will remain in the state’s custody.

Comment.  Wasn't there a recent nonpublished case that recognized that a just division of the property does not mean an equal division??? At some point in time our civilian judges and lawyers are going to have to recognize that their civilian frame of reference does not carry over to a military analysis.  However, you will be beating the drum slowly upon a judiciary with deaf ears and even fewer who have served their country in the military.

A soldier is married, gets divorced, the retirement is divided as property, the soldier continues to serve to earn that retirement, and as a result of that service he/she sacrifices a part of his/her mind and/or body and ability to earn income upon his/her retirement (e.g., disabled), and now must give a portion of that to the ex-spouse as maintenance because the property interest has been reduced.  The  non-military spouse incurred no risk. was never in harm's way, and federal law prohibits a division of military disability (remember federal supremacy and pre-emption).  Using this logic, a couple can be married and get divorced, but due to the stress and absence of back to back tours, the wife divorces the soldier while in Iraq.  The soldier consents to USFSPA jurisdiction and his retirement is divided.  He then receives devastating injuries, and the spouse says give me more even though the amount of the retirement is substantially increased based upon the disability.  

This process has to be more than a simple numbers game of formulas and amounts.  A just division of property should require the court to examine the nature of that disability, how it affects income, the nature of any impairment, the non-military members ability to earn income (odd, I know but who potentially took a bullet and who did not, and if you are adjusting to account for 'maintenance' then drop the numbers and look closely).

Just some comments from an ex-JAGC and military retiree who has tried on more than one occasion to educate lawyers and judges to no avail.  However, I will continue to beat the drum slowly as I respect our soldiers who lay their lives on the line for our freedoms and have their future livelihoods relegated to a piece of property and number's games as our courts roll the dice with their futures and future quality of life.  Michael Stevens, Attorney, LTC, JAGC (USAR, Retired).

The court noted that it was undisputed that income should be imputed to Valerie as she is voluntarily unemployed.

Finally, “income” is defined as meaning “actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.”  Thus, none of these definitions permit nonparent spousal income to be included as a component of parental income for purposes of calculating child support obligations. 

Even assuming that Valerie’s current husband provides funds which help to support the parties’ child, the availability of such funds was addressed by imputing income to Valerie of $70,000 per year. 

Andrew relies on Ewing v. May, in which the Kentucky Supreme Court held in 1986 that a “custodial parent seeking an increase in child support may obtain limited and reasonable discovery of the other parent’s spouse for the purpose of determining the financial needs and resources of the noncustodial parent pursuant to KRS 403.210(5).”   However, some four years later, in 1990, the Kentucky General Assembly repealed KRS 403.210 and reenacted it with other legislation implementing federally-mandated child support guidelines.

Under these circumstances, the COA could not say that the current spouse’s income was relevant to the calculation of child support under KRS 403.212, or that the trial court erred by failing to permit discovery of such evidence, and therefore could not say that the trial court erred when making its findings of fact.

Held: COA noted that while UM coverage is mandatory under statute unless specifically rejected, UIM coverage is optional under its separate statute. In either case, COA noted that the decision to obtain either type of coverage rests exclusively with the insured. COA found no fault in the language of the insurance application concerning these coverages. COA ultimately held that Moore would not be permitted to avoid her unequivocal, written rejection of the UM coverage by arguing that she would not have rejected it had she known it was mandatory. See Midwest Mut. Ins. v. Wireman, 54 S.W.3d 177, 182 (Ky. App. 2001).