Estate of Young v. ISP Chems., LLC
Court of Appeals of Kentucky
May 18, 2018, Rendered
NO. 2017-CA-000838-MR

Reporter
2018 Ky. App. Unpub. LEXIS 324 *
ESTATE OF ERIC YOUNG, BY AND THROUGH KRISTY YOUNG, AS ADMINISTRATRIX, KRISTY YOUNG, INDIVIDUALLY, KRISTY YOUNG AS MOTHER AND NEXT FRIEND OF JOSEPH YOUNG AND KALOB YOUNG, MINORS, JAMES BOWLING AND RICHARD L. WHEELER, APPELLANTS v. ISP CHEMICALS, LLC AND ASHLAND, INC., APPELLEES
Notice: THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
Prior History: [*1] APPEAL FROM MARSHALL CIRCUIT COURT. HONORABLE JAMES T. JAMESON, JUDGE. ACTION NO. 15-CI-00042.

AFFIRMING
COMBS, JUDGE: Appellants seek review of an Order of the Marshall Circuit Court granting summary judgment in favor of Appellees, Ashland, Inc., and ISP Chemicals LLC. The court held that the Appellees are up-the-ladder contractors who are entitled to the exclusive remedy protection afforded by the Kentucky Workers’ Compensation Act — KRS1 Chapter 342 (the Act). Finding no error, we affirm.
We first review the applicable provisions of KRS 342.610(2), which governs liability and provides as follows:
A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. Any contractor or his or her carrier who shall become liable for such compensation may recover the amount of such compensation [*2] paid and necessary expenses from the subcontractor primarily liable therefor. A person who contracts with another:
…
(b) To have work performed of a kind which is a regular or recurrent2 part of the work of the trade, business, occupation, or profession of such person
shall for the purposes of this section be deemed a contractor, and such other person a subcontractor. . . .
KRS 342.690(1), commonly referred to as the exclusive remedy provision of the Act, provides in relevant part:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation. . . .
In the case before us, the underlying facts are outlined in the trial court’s April 14, 2017, Order Granting Defendants’ Motions [*3] for Summary Judgment:
1) Ashland is a chemical company that, among other things, manufactures a food grade oral care product known as Gantrez S-97.
2) Ashland does not transport Gantrez S-97. Rather, Ashland contracts with motor carriers to deliver Gantrez S-97.
3) Quality is a national trucking company with many local affiliates throughout the country, which include QCKY located in Calvert City, Kentucky.
4) On or about May 17, 2005, Ashland entered into an agreement (the “Motor Contract Agreement”) with Quality. Under this agreement, Quality agreed to provide transportation services to Ashland. These “transportation services” include tank washing.
5) In August 2011, Ashland completed its acquisition of ISP, which is also a chemical manufacturing company located in Calvert City, KY.
6) Prior to Ashland’s acquisition of ISP, ISP and Quality entered into an agreement (“ISP Agreement”) whereby Quality would transport goods and wash tank wagons for ISP.
7) According to the Motor Contract Agreement, Quality may subcontract its obligations under the Motor Contract Agreement to its affiliates. However, under the Motor Contract Agreement, the subcontractor affiliates must operate under Quality’s [*4] authority and Quality must ensure that workers compensation insurance is in place for all employees carrying out the terms of the Motor Contract Agreement.
8) In a written agreement (the “Contractor Agreement”), Quality subcontracted its obligations to transport products and wash tank wagons from ISP’s facility in Calvert City to its affiliate QCKY.
9) In the Contractor Agreement, QCKY warranted that it would provide workers’ compensation insurance for all employees carrying out the obligations owed by Quality to Quality’s customers.
10) At all times relevant to this action, Plaintiffs Eric Young (“Young”) and Richard Wheeler (“Wheeler”) were employed by QCKY to wash tanks.
11) Wheeler testified at his deposition that he cleaned trailers for Ashland at least four to five times a day and sometimes more.
12) Frank Cummins, supervisor at QCKY, testified that employees of QCKY would clean tank wagons that hauled Gantrez S-97 for Ashland on a daily basis.
13) Cheryl Hartig, an employee for ISP, testified that Gantrez S-97 would be loaded into a tank wagon at the ISP facility two to four times per day. Ms. Hartig further testified that the particular tank wagon at issue in this case was washed [*5] and sanitized by QCKY on a weekly to biweekly basis.
14) Because Gantrez S-97 is a food grade product, the tank wagons used to transport Gantrez S-97 must be washed and sanitized pursuant to strict quality controls.
15) The tank wagons in this case were leased by QCKY from an entity that is not a party to this action.
16) On or about February 7, 2014, Young and Wheeler entered a tank wagon that was being washed at QCKY’s Calvert City facility. This tank wagon was used by QCKY to transport Gantrez S-97 from ISP’s Calvert City facility to QCKY’s facility in Calvert City. Wheeler and Young were overcome by an oxygen deficient atmosphere, which caused injuries to Wheeler and Young’s death. Young and Wheeler’s actions were in the course and scope of their employment.
17) After the events involving Young and Wheeler, Young’s estate and Wheeler filed for and received workers’ compensation benefits through the workers’ compensation insurance (Brickstreet Insurance) secured by their employer, QCKY.
(Footnotes omitted).
On February 6, 2015, a lawsuit was filed in the Marshall Circuit Court by the following Plaintiffs: the estate of Eric Young, by and through Kristy Young as Administratrix; Kristy [*6] Young, individually; Kristy Young, as Mother and Next Friend of Joseph Young and Kalob Young, minors; James Boling;3 and Richard Wheeler. The Defendants were ISP and Ashland (collectively Ashland). On March 4, 2015, Ashland filed an Answer asserting, inter alia, the affirmative defense that Plaintiffs’ claims were barred by the Kentucky Workers’ Compensation Act, KRS 342.690, et seq.
Thereafter, Ashland was granted leave to file a third-party complaint against QCKY and its supervisor, Frank Cummins, and against Quality Carriers. The Defendants/Third-Party Defendants all filed motions for summary judgment which were heard on March 28, 2017.
By Order entered April 14, 2017, the trial court granted the motions. The court explained that tank washing was the type of work at issue in this case and that it would use the two-part test utilized in General Electric Co. v. Cain, 236 S.W.3d 579 (Ky. 2007). The court concluded that:
[W]ashing the tank wagons was customary, usual or normal to Ashland and ISP, who are in the business of chemical manufacturing. Tank wagons that carry food grade chemicals, such as Gantrez S-97[,] are required to be washed and sanitized. These chemicals were transported using tank wagons, and these tank wagons cannot be reused without them [sic [*7] ] being washed and sanitized. Furthermore, washing of the tank wagons was work that is repeated with some degree of regularity. The Court is able to come to this conclusion based on the testimony during the depositions cited in the above facts that the tank wagons are washed at least on a biweekly basis, and at times, multiple times per day. Thus, the first part of the test is met by Ashland and ISP.
The second part of the test laid out by the Cain Court, is whether the washing of tank wagons is a type of work that Ashland, ISP, or similar businesses would normally perform or be expected to perform with its employees. The Plaintiffs argue that because neither Ashland nor ISP’s employees ever performed the washing or sanitizing of the tank wagons, then neither Ashland nor ISP are [sic] “contractors.”
Addressing the Plaintiff’s argument that the failure of Ashland or ISP to wash the tanks themselves negated their status as contractors, the court responded: “whether the contractor had employees perform work that was a regular or recurrent part of its trade or business or whether the contractor hired subcontractors to do such work was a distinction of ‘no significance.'” Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 664 (Ky. App. 2006), quoting Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky. 1986). The court [*8] concluded that washing tank wagons was the type of work that Ashland and ISP, as chemical manufacturers, would normally perform or be expected to perform with their own employees and that cleaning of the tank wagons is akin to routine maintenance that Ashland or ISP’s employees might be expected to perform.
On May 4, 2017, Appellants filed a Notice of Appeal to this Court. Before us, they contend: (1) that summary judgment was premature because the record was not developed as to key factual issues; (2) that the trial court usurped the jury’s role and decided facts not supported by the record; and (3) that defendants are not an employer or contractor under the Kentucky Workers’ Compensation Act; therefore, up-the-ladder immunity is unavailable.
The standard of our review “is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky. App. 1996).
Appellants preface their arguments by asserting that the Kentucky Workers’ Compensation Act requires that immunity be narrowly construed. However, we are aware of no such provision under the Act or of any rule of statutory construction so interpreting [*9] to the act. In support of their contention the Appellants cite Boggs v. Blue Diamond Coal, 590 F.2d 655, 659 (6th Cir. 1979), which stated that “Kentucky courts have given the ‘liberal’ construction required by the express language of the Act by broadly construing the coverage provisions of the Act and narrowly construing the immunity provisions.” The Boggs court was referring to KRS 342.004, which was repealed in 1980. “Notwithstanding the repeal of KRS 342.004, the law continues to favor a liberal construction of the Workers’ Compensation Act, with a view to effectuating the beneficent intent of the legislature. Standard Gravure Corp. v. Grabhorn, Ky.App., 702 S.W.2d 49 (1985)…. [However] where the controlling facts ‘collectively outweigh the liberal construction of the law, the determination must go against the claimant.” Uninsured Employers’ Fund v. Wilson, 2005-CA-000140-WC, 2005 Ky. App. Unpub. LEXIS 580, 2005 WL 1593704, at *5 (Ky. App. July 8, 2005) (citations and internal quotation marks omitted). In Beaver v. Oakley, 279 S.W.3d 527, 530 (Ky. 2009), the Kentucky Supreme Court addressed the exclusivity provision of the act as follows:
Under Kentucky law, unless a worker has expressly opted out of the workers’ compensation system, the injured worker’s recovery from the employer is limited to workers’ compensation benefits. The injured worker is not entitled to tort damages from the employer or its employees for work-related injuries. And, in this [*10] context, the term employer is construed broadly to cover not only the worker’s direct employer but also a contractor utilizing the worker’s direct employer as a subcontractor.
(Footnotes omitted, italics original).
Appellants’ arguments on appeal overlap and rely heavily on Cain. Cain involved the issue and circumstances in which a premises owner may be considered an up-the-ladder contractor. Our Supreme Court extensively reviewed pertinent caselaw for guidance on the issue:
In Tom Ballard Co. v. Blevins, 614 S.W.2d 247 (Ky.App.1980), a coal mining company was under contract to sell and deliver coal to its customers. The Court of Appeals held that the mining company was the statutory employer of truck drivers, employed by a contractor and hired by the mining company to haul the coal to the coal company’s customers, because delivering the coal to its customers was a regular or recurrent part of the business of the mining company under its contracts to both mine and deliver. Id. at 249. Under similar reasoning, in Wright v. Dolgencorp, Inc., 161 S.W.3d 341, 344 (Ky.App.2004), the Court of Appeals held that an employee of a trucking company hired to haul merchandise from a business retailer’s main distribution center to its retail stores was the statutory employee of the retailer.
In Daniels v. Louisville Gas & Electric Co., 933 S.W.2d 821, 43 6 Ky. L. Summary 11 (Ky.App.1996), the Environmental Protection [*11] Agency (EPA) had ordered LG & E and other coal-fired utility companies to conduct emissions testing of its coal-fired furnaces on specified occasions. LG & E contracted with an emissions testing company to conduct the tests, and an employee of that company was severely burned while conducting such tests at the LG & E plant. Because the EPA required LG & E to conduct the emissions testing upon the occurrence of specified events, the Court of Appeals held that the emissions tests were a regular or recurrent part of LG & E’s business. Id. at 823-24. The holding in Daniels is consistent with the previous holding in Blevins. In Blevins, the work performed by the injured worker became a part of the mining company’s business by contract, whereas in Daniels, it became a part of the utility company’s business by law.
236 S.W.3d at 586. The Court also looked to Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 70.06[3] (2006) for guidance:

[T]he test must be relative, not absolute, since a job of construction or repair that would be a nonrecurring and extraordinary undertaking for a small business might well for a large plant be routine activity which it normally expects to cope with through its own employed staff. …
The treatise notes that, “with [*12] a surprising degree of harmony,” the courts agree on a general rule of thumb that a statute deeming a contractor to be an employer “covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees.” Larson’s, supra, at § 70.06[1].
Id. 587-88. In conclusion, the Court stated that:
Work of a kind that is a “regular or recurrent part of the work of the trade, business, occupation, or profession” of an owner does not mean work that is beneficial or incidental to the owner’s business or that is necessary to enable the owner to continue in business, improve or expand its business, or remain or become more competitive in the market. Larson’s, supra, at § 70.06[10]. It is work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees.
Id. at 588.
This Court examined Cain in Forbes v. Dixon Elec., Inc., 332 S.W.3d 733 (Ky. App. 2010). In Forbes, the issue was whether the trial court erred in concluding that Dixon Electric was immune as an up-the-ladder contractor. Dixon had a contract with Lexington-Fayette [*13] Urban County Government (LFUCG) to install and repair traffic systems. Pursuant to the contract, Dixon was to provide for any necessary traffic control. Dixon’s foreman testified that he would request traffic control assistance from the Lexington Police Department several times per month. On the date in question, Dixon had requested assistance at a busy intersection. While on assignment to manually direct traffic, Officer Forbes was struck by a motor vehicle and injured. He received workers’ compensation benefits through the police department. Ultimately, the Forbeses sued Dixon, alleging that Dixon had been negligent in failing to provide notice and to warn oncoming traffic of non-working signals at the intersection.
The Forbses argued that traffic control at major intersections could not be considered a part of Dixon’s regular or recurrent work because Dixon’s employees could not legally direct traffic. The trial court disagreed and held that Dixon was entitled to up-the-ladder immunity. This Court affirmed:
The Forbeses assert that in Cain, the Supreme Court created a two-part test; namely, the work must be: 1) customary to the business or repeated with a degree of regularity; and [*14] 2) of a kind normally performed or expected to be performed by employees. We do not believe that the Supreme Court created a new test, but rather it summarized the existing test. Furthermore, we agree with Dixon Electric that the facts of this case fall squarely within the application of Cain and KRS 342.610. By virtue of its contract with LFUCG to install and repair traffic signals throughout the city, Dixon Electric had to provide for traffic control, which was done either by its employees or by Lexington police officers. Traffic control is unquestionably a regular and recurrent part of Dixon Electric’s business. Therefore, Dixon Electric took on the role of contractor while the Lexington Police Department took on the role of sub-contractor at the time and place of the accident, and Dixon Electric was entitled to up-the-ladder immunity. The circuit court did not commit any error in so holding.
Id. at 738.
In the case before us, Appellants contend that summary judgment was premature because there is no evidence that tank washing is the type of work that Ashland (or other chemical manufacturers) would perform or would expect to perform with its own employees. For the same reason, Appellants contend that [*15] the trial court usurped the jury’s role and decided facts that were not in the record. We disagree on both counts. “A contractor that never performs a particular job with its own employees can still come within KRS 342.610(2)(b).” Doctors’ Associates, Inc. v. Uninsured Employers’ Fund, 364 S.W.3d 88, 92 (Ky. 2011).
There is no genuine dispute or lack of evidence that tank washing is a regular and recurrent part of Ashland’s business. Ashland contracted with Quality to provide those services. Thus, Ashland took on the role of contractor while Quality Carriers took on the role of sub-contractor. Quality then subcontracted its obligations to its affiliate, QCKY, as permitted under the Motor Contract Agreement with Ashland.
Appellants assert that Ashland cannot satisfy the definition of contractor under Kentucky law because it had no contractual relationship with QCKY. However, as Ashland notes, immunity has been held to apply under similar situations — such as that in Waterbury v. Anheuser-Busch, Inc., CIV.A. 3:01-CV536-S, 2003 U.S. Dist. LEXIS 2639, 2003 WL 1145470, at *1 (W.D. Ky. Feb. 24, 2003). In that case, Anheuser-Busch had a contract with Helget Gas for it to supply canisters used to dispense beer. Helget contracted with Apollo Express to transport the canisters. Apollo Express then contracted with Connection Company/TSF, Ltd., whose employee was injured [*16] while unloading the canisters at Anheuser-Busch’s warehouse. The court explained that the delivery and unloading of the canisters is a regular and recurrent part of the business of selling beer; thus, Anheuser-Busch was a contractor for purposes of KRS 342.610(2).
Because Anheuser-Busch is a contractor in the contractual chain between Anheuser-Busch, Helget Gas, Apollo Express and Connection Company/TSL, Ltd., and because Connection Company/TSL, Ltd. properly procured workers’s [sic] compensation insurance for its — employee … Anheuser-Busch is immune from civil liability to [the] plaintiff ….”
2003 U.S. Dist. LEXIS 2639, [WL] at *2.
The same reasoning applies in this case. Appellants argue that summary judgment must be reversed because Appellees failed to show that they had secured workers’ compensation coverage. The exclusive remedy provision of the Workers’ Compensation Act is an affirmative defense which must be pleaded and proved. Gordon v. NKC Hosps., Inc., 887 S.W.2d 360, 41 12 Ky. L. Summary 20 (Ky. 1994). The record establishes that it was properly pled and proven. Ashland raised the affirmative defense in its Answer. Appellant Wheeler testified by deposition that he had filed a workers’ compensation claim and that he had received payments from Brickstreet Mutual Insurance, and his Answers to Interrogatories [*17] reflect the same information. The Answers to Interrogatories filed by Kristy Young, Individually and as Administratrix of Eric Young’s Estate, reflect that Brickstreet Insurance Company paid workers’ compensation benefits for Eric Young’s death. Pennington 238 S.W.3d 660, 666 (Ky. App. 2006) (“[U]p-the-ladder contractor is immune from tort liability to an injured employee of a subcontractor if it proves that the immediate employer of the injured employee had secured coverage for the employee.”).
We find no merit in Appellants’ assertions that Ashland waived immunity as a defense or that ISP’s statements in the Kentucky Occupational Safety and Health Agency (KOSH) proceeding constituted a judicial admission which would preclude Appellees from raising immunity as a defense in this case.
We affirm the Order of Marshall Circuit Court granting Defendants’ (now Appellees’) motions for summary judgment entered on April 14, 2017.
ALL CONCUR.

2018 WL 2017567

United States District Court, E.D. Louisiana.
TONJA WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, NOAH JACKSON
v.
NATIONAL INTERSTATE INSURANCE CO., ET AL.
CIVIL ACTION NO. 16-16214
|
05/01/2018
ELDON E. FALLON, United States District Judge

SECTION L (1)
ORDER AND REASONS
*1 Following a five-day jury trial, Plaintiff has timely filed the instant motion for a new trial pursuant to Federal Rule of Civil Procedure 59. Rec. Doc. 169. Defendants oppose the motion. Rec. Doc. 174. The Court held oral argument on this matter on April 25, 2018.

Separately, Defendant Allstate Property and Casualty Insurance Co. has filed a motion to alter or amend the judgment. Rec. Doc. 171. No opposition has been filed regarding this motion.

Having considered the parties’ arguments, submissions, and applicable law, the Court now issues this Order and Reasons.

I. BACKGROUND
A. Factual History
This case arose out of an alleged collision between two motor vehicles. On September 9, 2015, Plaintiff Tonja Wright was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she approached a truck that had stopped near a stop sign. Plaintiff claimed that instead of moving forward, the truck backed into her vehicle, pushing her vehicle several feet back. Ms. Wright’s minor son, Noah Jackson, was also in her vehicle at that time. Plaintiff asserted that the collision occurred because of the negligence of Defendant Terry Poole, the truck driver. She brought this lawsuit, on behalf of herself and her son, to recover the monetary damages resulting from this incident.

In response, Defendants claimed that the accident did not happen. Defendants argued that if the alleged accident did happen, it was caused by the actions of Ms. Wright. Furthermore, Defendants averred that even if there was an accident, Ms. Wright’s injuries did not result from the alleged accident on September 9, 2015. Defendants asserted that a separate intervening and superseding event occurred that caused Ms. Wright’s injuries, and that event is unrelated to Defendants in this case. Therefore, Defendants claimed they are not liable for Plaintiff’s damages. The parties’ conflicting positions created a question of fact for a jury to determine.

B. Trial and Jury Verdict
Trial for this case commenced on March 5, 2018. As part of Plaintiff’s case-in-chief, she called Dr. Eric Lonseth, an expert in the field of pain management; Dr. Thad Broussard, an expert in the field of orthopedic surgery; herself; Lacy Sapp, an expert in the field of rehabilitation, vocational counseling and life care planning; Ralph Litolff, an expert economist; and Dr. Samer Shamieh, an expert in orthopedic spine surgery. After Plaintiff rested, Defendants presented their case, calling Layton Schmidt, an eyewitness to the accident; John Dupre, a grants and program director from the State of Louisiana; Channing Perry, an investigator who took surveillance videos of Plaintiff; Defendant Terry Poole; and Dwight Loftis, a representative of Mabe Trucking Co.

Both sides gave closing arguments in the morning of March 8, 2018, and the jury began deliberation early afternoon. At 4:53 p.m., the Court was informed that a verdict had not been made. Thus, without objection from either party, the Court read its Allen charge,1 borrowed and adopted from the Fifth Circuit Pattern Jury Instruction (Civil Cases) Section 2.18. The Court then discharged the jury and ordered jurors to return the next day at 9:30 a.m. to continue deliberation.

*2 On March 9, 2018, at 11:50 a.m., the jury reached a verdict, which was read into the record at 12:23 p.m. The jury initially rendered the following findings:
1. Defendant Terry Poole collided his truck with Plaintiff Tonja Wright’s vehicle.
2. Plaintiff sustained injuries as a result of that vehicular accident.
3. Both Defendant Terry Poole and Plaintiff Tonja Wright were negligent and their negligence were legal causes to Plaintiffs’ injuries.
4. Both Defendant Terry Poole and Plaintiff Tonja Wright were equally at fault and liable.
5. Plaintiff Tonja Wright is entitled to receive $235,000.00, less 50-percent, for past and future medical expenses. She is not awarded any compensation for past and future pain and suffering, past lost wages, future loss of earning capacity, and loss of consortium.

6. Plaintiff Noah Jackson, son of Tonja Wright, is not entitled to any damages. See Rec. Doc. 162.

After the jury presented this verdict, the Court highlighted an inconsistency with the award of damages based on Yarbrough v. Sturm, Ruger & Co., 964 F.2d 376 (5th Cir. 1992). The jury here awarded the sum of $235,000.00 for past and future medical expenses, but nothing for past and future pain and suffering. In Yarbrough, the Fifth Circuit held that it was “inconceivable” that a jury could find for past and future medical expenses and past pain and suffering, but not for future pain and suffering. See id. at 379. Likewise, in this case, the jury had not found compensation for past and future pain and suffering even though it awarded past and future medical expenses. Therefore, the Court rejected the jury’s initial verdict and instructed them to continue deliberation in order to redress this issue.

At 12:36 p.m., the jury returned from a second round of deliberation. See Rec. Doc. 161. The jury rendered the same findings regarding liability as their initial verdict—the parties were equally negligent—and awarded Plaintiff past and present medical expenses of $235,000.00, plus $17,000.00 for past and future pain and suffering, for a grand total of $252,000.00, less 50-percent for comparative negligence.

At Plaintiff’s request, the jury was polled, and each answered in the affirmative that this was indeed the respective juror’s findings. The Court accepted the jury’s verdict in whole. On March 13, 2018, the Court entered judgment in favor of Plaintiff for $126,000.00, after reducing the jury’s award by 50-percent for comparative negligence.2

II. MOTION FOR NEW TRIAL
On April 9, 2018, Plaintiff timely filed the instant motion for new trial under Federal Rule of Civil Procedure 59. Plaintiff requests a new trial based on two arguments. First, Plaintiff asserts that the award for damages was inadequate in light of her injuries and the jury’s determination represents an impermissible compromise verdict. Second, Plaintiff introduces what she claims to be “newly discovered evidence,” an affidavit from Captain Melvin McGary, who was an officer at the September 9, 2015 accident scene but was not called to testify at trial. Plaintiff contends that Captain McGary’s testimony, hitherto unknown, would refute Defendant Poole’s statements at trial.

*3 Defendants oppose Plaintiff’s motion. Defendants argue that the evidence presented to the jury sufficiently justifies the damages awarded and is not a compromise verdict. Furthermore, Defendants point out that the testimony of Captain McGary is not “newly discovered evidence” because Plaintiff had access to this evidence for over two years. Defendants aver that Plaintiff did not make every reasonable and diligent effort to procure the evidence before trial. Accordingly, Defendants claim that Plaintiff fails to meet the burden for a new trial.

The Court will address the parties’ arguments in turn.

A. Legal Standard
Plaintiff seeks a new trial pursuant to Federal Rule of Civil Procedure 59, which provides that “[t]he court may, on motion, grant a new trial on all or some of the issues—and to any party— as follows: after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A).

Under Rule 59, a new trial may be granted if “the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations omitted); see also McFadden v. Wal–Mart Stores, No. 04-2547, 2006 WL 3087164, at *2 (E.D. La. Oct. 27, 2006). “A district court, however, should attempt to avoid substituting its judgment for the jury’s considered verdict, so as to not violate the parties’ Seventh Amendment rights.” Id. (citing Sorina v. Avis Rent–A–Car Sys., Inc., 1992 WL 40840, at *1 (E.D. La. Feb. 20, 1992)). “If the jury’s verdict is ‘clearly within the universe of possible awards which are supported by the evidence,’ then a district court may not properly grant a new trial based merely on the inadequacy of the damage award.” Id. (citing Brun–Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 246 (5th Cir. 1988)). “The Fifth Circuit has stated that it will not interfere with the factfinder’s award of damages unless it is ‘so inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial.’ ” Id. (quoting Munn v. Algee, 924 F.2d 569, 578 (5th Cir. 1991)).

Because the matter is before the Court on diversity jurisdiction, the new trial standards of Louisiana law are applicable. See Fair v. Allen, 669 F.3d 601, 604 (5th Cir. 2012); Foradori v. Harris, 523 F.3d 477, 498 (5th Cir. 2008) (“The Supreme Court in Gasperini…held that, in an action based on state law but tried in federal court by reason of diversity of citizenship, a district court must apply a new trial or remittitur standard according to the state’s law controlling jury awards for excessiveness or inadequacy….”).

Under Louisiana law, “[a] new trial shall be granted…[w]hen the verdict or judgment appears clearly contrary to the law and evidence.” LA. CODE CIV. P. 1972(1). “The trial court’s discretion in ruling on a motion for new trial is great.” Davis v. Wal–Mart Stores, Inc., 774 So. 2d 84, 93 (La. 2000). “Whether to grant a new trial requires a discretionary balancing of many factors.” Id. (citing Gibson v. Bossier City Gen. Hosp., 594 So. 2d 1332 (La. App. 2 Cir. 1991)). The Louisiana Supreme Court has spoken on this discretion as follows:
The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution….Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence.
*4 Id. (citing Gibson, 594 So. 2d 1332).

In making this determination, the trial court must balance the great deference given to the jury as the factfinder and the discretion bestowed upon it in reviewing the motion, but the scales are “clearly tilted in favor of the survival of the jury’s verdict.” Id. at 93–94. The decision is to be made on a case-by-case basis. Id. at 94.

Furthermore, the Fifth Circuit has repeatedly held that “the decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of that discretion or a misapprehension of the law.” Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th Cir. 1985); see also Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169, 175 (5th Cir. 1999); Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 252 (5th Cir. 1990); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982); Evers v. Equifax, Inc., 650 F.2d 793, 796 (5th Cir. 1981). Modifying or setting aside a judgment under Rule 59 is an extraordinary remedy; motions for new trial or to alter or amend a judgment should not be avenues for relitigating old matters, raising new arguments, or submitting evidence that could have been presented before. See Theriot v. Parish of Jefferson, 66 F. Supp. 1435, 1452 (E.D. La. 1997); Campbell v. St. Tammany Parish School Board, No. 98-2605, 1999 WL 777720, at *1 (E.D. La. Sept. 29, 1999).

B. Discussion
Plaintiff’s motion presents a straightforward inquiry whether a new trial is justified. The first question is whether the award here is inadequate or represents a compromised verdict. The second question is whether Plaintiff’s purported “newly discovered evidence” warrants a new trial.

1. Award of Damages
Regarding damages, Plaintiff relies, in part, on Starks v. Advantage Staffing, LLC to support her argument that the jury’s award is inconceivable. See 217 F. Supp. 3d 917 (E.D. La. 2016). In Starks, the plaintiff filed a general maritime lawsuit against his employer for personal injuries sustained in an accident. Id. at 919. As a result of the incident, the plaintiff underwent multiple surgeries on his arm. Id. The jury returned a verdict stating the defendants and plaintiff were equally liable. Id. The parties stipulated to $109,213.96 for past medical expenses. Id. The jury then awarded the plaintiff $16,000.00 for unpaid past medical expenses; $50,000.00 for past pain and suffering; and $150,000.00 for future medical expenses. Id. The jury entered zero as the award for future physical pain and suffering and mental anguish. On a motion for new trial, the Starks court, citing Yarbrough, 964 F.2d 376, found it “inconceivable” that a jury could find for past and future medical expenses and past pain and suffering, but not for future pain and suffering. Starks, 217 F. Supp. 3d at 919–20. Thus, the court granted plaintiff’s motion for a new trial.

The basis for a new trial in Starks—an inconceivable and inconsistent verdict—is precisely what this Court prevented during the instant trial. When this jury returned its initial verdict with zero as the award for past and future pain and suffering, albeit awarding past and future medical expenses, this Court, citing Yarbrough, noted the inconsistency to the parties as well as the jury. Thus, the Court declined the jury’s initial presentation and instructed the jury to continue deliberation in order to cure the defect. A short time later, the jury rendered its verdict again: each party was equally liable; damages award of $235,000.00 for past and future medical expenses and $17,000.00 for past and future pain and suffering; no award for Ms. Wright’s alleged lost wages, future earnings, and loss of consortium; and no award of past and future pain and suffering and loss of consortium to Noah Jackson. The Court then accepted the jury’s verdict and entered judgment for $126,000.00, after reducing Plaintiff’s 50-percent comparative negligence. Plaintiff now argues that this still represents an inconceivable and impermissible compromised verdict, relying on Starks and Yarbrough.

*5 Both cases, however, are clearly distinguishable because the jury here did, in fact, award damages—$17,000.00—for past and future pain and suffering, whereas the juries in Starks, 217 F. Supp. 3d at 919, and Yarbrough, 964 F.2d at 379, awarded no compensation for future pain and suffering despite providing for future medical expenses. The question thus becomes whether Plaintiff’s award is reasonable and “within the universe of possible awards which are supported by the evidence.” See Brun–Jacobo, 847 F.2d at 246.

Although Plaintiff argues that $17,000.00 for past and future sufferings and no award for loss of consortium, past wages, and future economic earnings are inadequate and inconceivable given Ms. Wright’s medical procedures, and lists other cases where juries have awarded more for comparable injuries, the Court finds that this jury’s findings, for liability and damages, are well supported by evidence presented at trial.

For instance, the evidence indicates that Plaintiff was involved in a later, separate accident on December 13, 2016, which made her neck pain substantially worse. Moreover, Defendants’ surveillance videos captured Plaintiff moving with ease on multiple occasions, carrying groceries, and lifting her son Noah. Additionally, Dr. Broussard testified via video deposition that Plaintiff had, inter alia, a “good result” from surgery. Finally, Plaintiff stated in some of her past tax returns that she earned zero or negative net income. Therefore, from the evidence presented at trial, the jury could—and did—reasonably find that Ms. Wright is entitled to a relatively low, yet adequate, amount for past and future pain and suffering and past and future medical expenses, as well as no award for loss of consortium, past wages, and future economic earnings, especially in light of her duty to mitigate damages.

Nevertheless, Plaintiff states that other juries in other cases have awarded more for damages. Perhaps so. But what other plaintiffs have received is irrelevant here because each jury and each set of fact pattern is unique and different. This jury, having heard testimony and examined exhibits for four days, is entitled to “great deference” in weighing the evidence. See Wainwright v. Fontenot, 774 So. 2d 70, 74 (La. 2000). Although Plaintiff now attempts to substitute her own belief for the jury’s determination, ultimately, she cannot usurp the jury’s role as the factfinder. Thus, the Court refuses to upset or undermine the jury’s reasonable findings simply because another jury in a separate case awarded more.

Finally, when polled at Plaintiff’s request, each juror affirmed, without hesitation, that the rendered verdict was indeed his or her respective decision. Thus, Plaintiff’s speculation that the jury reached a compromised verdict is just that—speculation. Accordingly, considering the record, the Court will not disrupt the jury’s findings because the award rendered in this case is reasonable in light of the evidence and not “so inadequate as to shock the judicial conscience….” See Munn, 924 F.2d at 578.

2. Newly Discovered Evidence
Plaintiff represents that twenty-eight days after trial, on April 9, 2018, she learned the identity of a new witness: Captain McGary, who responded to the September 9, 2015 accident. Relevant to Plaintiff’s case, Captain McGary affirms in an affidavit that he “spoke with Mr. Poole at the scene after the accident occurred. Mr. Poole told [him] that he did back his tractor-trailer into Ms. Wright’s vehicle causing the accident. Mr. Poole told [him] that Ms. Wright was in his blind spot, and that he did not see her.” Rec. Doc. 169-2. Moreover, “[a]fter the accident, [Captain McGary] could clearly see the tire skid marks that were under Mr. Poole’s tractor-trailer[,] [which] led to and lined up with Ms. Wright’s tires. The marks directly touched and conformed exactly in width and alignment to the footprint of her tires. There was no doubt that the skid marks were hers.” Id. From this, Plaintiff concludes that Captain McGary’s statements “prove” that Defendants were 100-percent at fault.

*6 Despite Captain McGary’s declaration, Defendants contend that this evidence is not “newly discovered” under governing law. Defendants argue that Plaintiff knew that two officers arrived at the accident scene for over two years, but did not exercise due diligence in identifying or locating Captain McGary to testify at trial.

Newly discovered evidence may serve as a basis for a new trial if the party “could not, with due diligence, have obtained [this evidence] before or during the trial.” LA. CODE CIV. P. 1972(2). In order to meet the burden of proof required for a new trial on the basis of newly discovered evidence, the moving party must prove (1) the evidence was discovered after the trial, (2) the new evidence is not cumulative, (3) the new evidence would tend to change the result of the case, and (4) the new evidence could not have been discovered with due diligence before the trial was completed. Boudreaux v. Cummings, 170 So. 3d 1002, 1006 (La. App. 3 Cir. 2015), writ denied, 169 So. 3d 358 (La. 2015).

When a party claims a new trial is warranted due to newly discovered evidence, the party must make a “clear showing” that he or she made “every reasonable and diligent effort” to procure the evidence before the proceedings. Burns v. Sedgwick Claims Mgmt. Servs., Inc., 165 So. 3d 147, 155 (La. App. 5 Cir. 2014).

In this case, Plaintiff represents that she only learned the identity of Captain McGary on April 9, 2018. She states that Captain McGary’s name was not listed in the police report, nor was she able to depose Officer Hall, the author of the police report, to learn of Captain McGary’s whereabouts. Furthermore, she claims that calls to the police department were unanswered.

Notwithstanding Plaintiff’s position, the Court finds that Ms. Wright has not shown that she exercised due diligence in obtaining the testimony of Captain McGary prior to trial. Plaintiff long knew that two officers came to the scene of the accident. In her deposition on April 13, 2017, almost a year and a half after the accident and about one year before trial, Ms. Wright— accompanied by her attorney—testified that she spoke with two responding officers during the September 9, 2015 accident:
Defense Counsel: Was Officer Hall the only police officer who
came to the scene?
Ms. Wright: No, sir. Defense Counsel: How many police officers came to the scene? Ms. Wright: There were two, I recall.
* * *
Defense Counsel: What did the police officers talk to you about? Ms. Wright: They basically just came over and told me what I told you about Mr. Poole’s statement and how they were able to look at the skid marks and where the vehicles were positioned to know that he had pushed me back.
Wright Dep. 38:18–23, 82:23–83:4; Rec. Doc. 174-2 at 4–5.

As indicated, for over two years, Plaintiff knew that a second officer was present at the accident scene and could provide potentially important, game-changing testimony. A diligent litigant should then readily know the importance of an on-scene officer’s testimony after a vehicular accident and promptly attain such evidence.

Plaintiff, however, did not locate Captain McGary until after the trial; she fails to explain why she could not have exercised due diligence in identifying Captain McGary beforehand—until now, when she seeks a new trial. Plaintiff states that she made numerous attempts to learn about Captain McGary though Officer Hall and made phone calls to the police department. At the hearing, Plaintiff’s counsel said that, after trial, Ms. Wright herself went to the police station in order to identify Captain McGary. But Plaintiff still does not justify why she—or her attorney— could not have done the same during the past two years before trial.

*7 Instead, Plaintiff only exerted minimal effort in obtaining any officer’s testimony in the first instance. Despite Plaintiff’s representation at the hearing and pre-trial conference, there are, in fact, no subpoenas or requests for subpoena of Officer Hall filed in the record. See generally ECF. When Plaintiff informed the Court during the pre-trial conference that Officer Hall had been nonresponsive, the Court had offered to dispatch U.S. Marshals to enforce any subpoenas or requests for subpoena if they were properly filed. Nonetheless, Plaintiff stood idle. Not only did Plaintiff ignore locating Captain McGary for over two years, but she also failed to exercise more effort to secure the testimony of Officer Hall. Therefore, no officers corroborated Plaintiff’s testimony.

Due to Plaintiff’s own disregard leading up to trial, the Court finds that she has not made a clear showing that she made “every reasonable and diligent effort” to attain Captain McGary’s testimony. See Burns, 165 So. 3d at 155; see also LA. CODE CIV. P. 1972(2). The Court agrees with Plaintiff that Captain McGary’s testimony might have been helpful to the jury and potentially valuable to her case-in-chief. But a new trial now—due to Plaintiff’s initial inertia—would be absolutely unfair to Defendants.

Finally, Plaintiff’s “new evidence” may be cumulative. In this trial, the jury actually found that Defendant Poole’s truck collided with Plaintiff’s vehicle and that Defendant had fault in the collision. Captain McGary’s testimony, if elicited, would have simply confirmed this finding. The jury could still have determined, for example, that Plaintiff’s vehicle was too close to the Defendant’s truck, that she should have sounded her horn, or that she should have backed up when she saw the truck backing her way, and any of this amounted to negligence on her part. At this point, to hold otherwise is speculative. Thus, even with Captain McGary’s purported testimony, the jury could have also reached the same result, which would make this evidence cumulative at best. See Deimel v. Etheridge, 198 So. 537, 540 (La. Ct. App. 1940) (holding new evidence that was merely cumulative did not merit new trial). Accordingly, the Court concludes that Captain McGary’s testimony comes too late. Plaintiff cannot take a second bite of the apple.

III. MOTION TO ALTER OR AMEND JUDGMENT
Defendant Allstate has filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), which allows a court to alter or amend a judgment to correct a “manifest error of law or fact….” Allstate argues that because it was sued in its capacity as the uninsured/underinsured (“UM/UIM”) motorist carrier of Plaintiff, and because the judgment award is below Defendant National Interstate’s policy coverage of $1,000,000.00, Plaintiff’s UM/UIM claims against Allstate should be dismissed.

The Court agrees. At trial, both National Interstate and Allstate’s insurance policies were offered and introduced into evidence. National Interstate’s liability limit is $1,000,000.00. The judgment in this case, in favor of Plaintiff, amounts to $126,000.00. Therefore, because the award is below National Interstate’s coverage, Allstate’s insurance policy is not imputed. Accordingly, the judgment against Defendant Allstate is dismissed.

IV. CONCLUSION
Based on the foregoing reasons,

IT IS ORDERED that Plaintiff’s motion for a new trial (Rec. Doc. 169) is hereby DENIED.

IT IS FURTHER ORDERED that Defendant Allstate’s motion to alter or amend judgment (Rec. Doc. 171) is hereby GRANTED. The judgment (Rec. Doc. 167) is hereby AMENDED to dismiss Defendant Allstate from any claim of damages.

New Orleans, Louisiana, this 30th day of April, 2018.

ELDON E. FALLON
United States District Judge
All Citations
Slip Copy, 2018 WL 2017567

Footnotes

1
“ ‘Allen’ refers to the case Allen v. United States, 164 U.S. 492 (1896). The term is used generally in reference to supplemental instructions urging a jury to forego their differences and come to a unanimous decision.” United States v. Bottom, 638 F.2d 781, 786 n.4 (5th Cir. 1981).

2
Due to clerical error, the Court entered an amended judgment on March 19, 2018. See Rec. Doc. 167.