Jason A. Cuomo, Esq.
V. Tad Greene, Esq.
Frank A. Cuomo, Esq. McDermott & Bonenberger
Cuomo & Cuomo Wheeling, West Virginia
Wellsburg, West Virginia Attorney for Defendants Below, Appellees
Attorneys for Plaintiff Below, Appellant
CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE MCGRAW concurs in part, dissents in part, and reserves the right to file a separate opinion.
1. In an appeal from an allegedly inadequate damage award, the
evidence concerning damages is to be viewed most strongly in favor of the defendant.
Syllabus Point 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).
2. We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy. Syllabus Point 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991).
3. In a wrongful death action, this Court will set aside an allegedly inadequate verdict when it can be seen that the jury was misled or was motivated by passion, prejudice, partiality, or corruption. In instances where the evidence does not indicate and the plaintiff does not aver that the jury was misled or motivated by passion, prejudice, partiality, or corruption, this Court will set aside an allegedly inadequate verdict in a wrongful death action only where the verdict is so low that under the facts of the case reasonable men cannot differ about its inadequacy.
Maynard, Chief Justice:
The appellant and plaintiff below, Wilma E. Vargo, Executrix of the Estate
of Martha J. Fornari, appeals the October 30, 1998 order of the Circuit Court of Brooke
County denying the appellant's motion for a new trial on the issue of damages.
See footnote 1
careful consideration of the issue, we affirm the judgment of the circuit court.
At about 10:30 p.m. on November 27, 1995, Martha Jean Fornari
(hereinafter Mrs. Fornari or the decedent) was walking across an intersection in
Wellsburg, Brooke County, when she was struck and killed by an automobile driven by
the defendant, Sandra Pine. As a result, the appellant, Wilma E. Vargo, Mrs. Fornari's
stepdaughter and the executrix of her estate, brought an action against the
Sandra L. Pine (Mrs. Pine) and her husband, David J. Pine, alleging, inter alia, that Mrs.
Pine's negligent operation of her vehicle caused the death of Mrs. Fornari.See footnote 2
At trial, evidence was adduced that Mrs. Fornari was walking from west to
east across the intersection, had completely crossed three lanes of traffic and was nearly
to the opposite sidewalk when she was struck by Mrs. Pine's vehicle in the eastern portion
of the northbound lane. The parties agreed that it was very dark outside. Mrs. Pine was
traveling about 43 to 45 miles per hour and had the green light when traveling through the
intersection. There was also testimony that the highway to the south of the intersection is
flat and free of curves.
Other evidence was heavily contested. There was conflicting testimony
concerning how hard it was raining the night of the accident. Also in dispute was whether
Mrs. Fornari was struck in the southern end of the intersection where the roadway was
illuminated by the lights of a nearby business or at the intersection's northern end which
was dark. The appellant presented evidence that Mrs. Fornari was wearing a pink jacket,
and the appellee countered with testimony that Mrs. Fornari was dressed in dark colors.
Finally, there was controverted evidence that the appellee was distracted by a vehicle to
her left, which was driven by a friend of the appellee, immediately prior to striking Mrs.
Concerning damages, the parties stipulated to medical and hospital expenses
in the sum of $18,837.50 and funeral expenses in the sum of $5,879.86. The appellant
presented expert testimony that Mrs. Fornari's loss of income amounted to $172,616.97.
See footnote 3
Finally, the appellant presented uncontroverted testimony of the close relationship between
Mrs. Fornari and the appellant.
At the close of the trial, the jury found that the negligence of both the appellee and Mrs. Fornari caused and contributed to the accident. The jury apportioned 51% of the total negligence to the appellee and 49% to Mrs. Fornari. The sum of $18,837.50 was awarded to the appellant for hospital and medical expenses and $5,879.86 was awarded for funeral expenses for a total amount of $24,717.36 in damages. The jury awarded nothing for mental anguish, loss of income and loss of services. In its judgment order, the circuit court awarded a total of $16,119.02 to the appellant.See footnote 4 4
Initially, we note that,
[a]s a general proposition, we review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard. Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995) (citation omitted). Additionally, we held in Syllabus Point 1 of Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983), that [i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant. With these standards as our guide, we now consider the issue before us.
To determine the applicable law in reviewing the complained of verdict, a survey of the relevant cases is helpful. This Court has on several occasions considered challenges to alleged inadequate verdicts in wrongful death actions. In Hawkins v. Nuttallburg Coal & Coke Co., 66 W.Va. 415, 66 S.E. 520 (1909), a coal company employee was killed and his administrator brought a wrongful death action against the coal company. The jury rendered a verdict for the plaintiff for $500 in damages, and the plaintiff moved the court to set aside the verdict because it was so small that it evinced passion, prejudice, or corruption. The circuit court set aside the verdict and awarded the plaintiff a new trial, and the coal company appealed. This Court held that the circuit court erred in setting aside the verdict and stated:
We have held that, where a motion to set aside a verdict is because of excessive or inadequate damages, the court must not encroach on the province of a jury. In their assessment in tort cases there is no fixed measure, as in cases of contract. This is the case in actions generally. But in the case of an action under the statute for the death of a person this is peculiarly the case. Our decisions go to the effect that the jury, in such cases, is under the statute giving the action absolutely the judge of the amount of damages, and its finding cannot be disturbed unless the court can see that the jury was actuated by passion, prejudice, or corruption.
Id., 66 W.Va. at 416, 66 S.E. at 520 (citations omitted). The Court further said that the presence of passion, prejudice, or corruption cannot be presumed from the mere amount of the verdict.
Legg v. Jones, 126 W.Va. 757, 30 S.E.2d 76 (1944), concerned a sixteen-
year-old healthy, industrious, and energetic youth who was struck and killed by an
automobile while delivering newspapers in the early morning. At trial, the jury awarded
damages in the amount of $1000 against the driver of the automobile, and the plaintiff
appealed alleging, inter alia, that the verdict was so inadequate as to show bias, fraud,
partiality, corruption, and prejudice. This Court recognized a distinction between
wrongful death and other tort actions, stating that [i]n actions to recover for death by
wrongful act, neglect, or default under the statute, it is the peculiar right, as well as the
duty, of the jury to fix the amount of recovery. The right is conferred and the duty
imposed by the statute which gives the right of action. Id., 126 W.Va. at 762, 30 S.E.2d
at 79. The Court also restated, in syllabus point 2, the law set forth in Hawkins:
In an action for death by wrongful act the jury is the arbiter of the amount of damage, and its finding will not be set aside for the reason that the recovery is inadequate, unless it can be seen that the jury was misled or was motivated by passion, prejudice, partiality or corruption.
In addition, the Court noted, citing Hawkins, that meagerness of the verdict alone is not a sufficient reason to set [the verdict] aside. Legg, 126 W.Va. at 763, 30 S.E.2d at 79. Finding no evidence of improper motives which could have influenced the jury, the Court affirmed the verdict.
In Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975), the jury found
for the plaintiff on the question of liability where plaintiff's two daughters drowned in a
lake operated by the defendant. The jury awarded only funeral expenses, and the circuit
court awarded new trials on the ground that the verdicts were inadequate as a matter of
law. The defendant appealed and argued that the trial court is forbidden to set aside a
verdict in a wrongful death action on the ground of inadequacy alone. This Court agreed.
Relying on the Hawkins and Legg cases, the Court first noted that it had been definite and
consistent in its view to limit review of jury verdicts in death cases, recognizing that the
jury's enlightened conscience is the sole measure of damages. Kesner, 158 W.Va. at
1007, 216 S.E.2d at 886. Thus, the Court held in syllabus point 1:
Where a jury finds a defendant liable in a wrongful death action, it has absolute discretion, without regard to proof of actual damages, pecuniary loss and the like, to make any award it deems fair and just . . . and the trial court's submission to the jury of a verdict form which embodies the directions of W.Va. Code 1931, 55-7-6, as amended, is not error.
The Court further held in syllabus point 7 that [t]he meagerness of a verdict in a wrongful death action is not sufficient reason to set it aside; to be inadequate at law, a verdict must have resulted from error in the case or from jurors' misconduct. Finding no evidence that the jury was motivated by passion, prejudice, partiality, or corruption in the rendition of the verdicts, the Court found that the verdicts were not inadequate. However, the Court affirmed the circuit court's award of new trials because it found that improper jury instructions were given.See footnote 5 5
In Martin v. Charleston Area Medical Ctr., 181 W.Va. 308, 382 S.E.2d 502 (1989), the Court added a new component to its review of allegedly inadequate damages in wrongful death cases. In Martin, the decedent died as a result of a diagnostic procedure at the Charleston Area Medical Center (CAMC). In the resulting wrongful death action, the decedent was assessed 40% negligence and the defendants were assessed a total of 60% negligence. The jury awarded damages in the amount of $250,000 and the plaintiff appealed alleging an inadequate verdict. The Court stated as the applicable law:
In a tort action arising from wrongful death for alleged medical malpractice this Court will set aside a jury verdict and award a new trial on all issues where: (1) the jury verdict is clearly inadequate when the evidence on damages is viewed most strongly in favor of defendant; (2) liability is contested and there is evidence to sustain a jury verdict in favor of either plaintiff or defendant; and (3) the jury award, while inadequate, is not so nominal under the evidence as to permit the court to infer that it was a defendant's verdict perversely expressed.
Syllabus, Id., 181 W.Va. 308, 382 S.E.2d 502 (1989). Nevertheless, the Court turned its decision to reverse the verdict, at least in part, on the Legg analysis. The Court explained:
In the case before us our decision is informed to some extent by the fact that the plaintiff is a black woman suing for the death of a black husband and father on behalf of herself and four black children. In cases of this type involving white plaintiffs, when plaintiffs prevail at all, the awards . . . are substantially higher.
Martin, 181 W.Va. at 312, 382 S.E.2d at 506.
The next case in our review, and the one on which the appellant bases her
argument, is Linville v. Moss, 189 W.Va. 570, 433 S.E.2d 281 (1993). In Linville, the
decedent was attempting to assist the driver of a tractor trailer to back his truck onto the
highway when the decedent was struck and killed by another automobile. The decedent
was a forty-one-year-old unemployed male who had assumed most of the responsibilities
of the household and the care of his twelve-year-old stepson. Testimony at trial revealed
$3,719 in funeral expenses and an estimated value of replacement services of $240,180.
The jury returned a verdict of $4000 for reasonable funeral expenses, assessing forty-nine
percent negligence to the decedent, twenty-six percent negligence to the driver of the
automobile that struck the decedent, and twenty-five percent negligence to the company
that owned the tractor trailer. The jury awarded nothing to decedent's wife and son for
loss of services, sorrow, mental anguish, or companionship. The circuit court denied the
appellant's motion to set aside the verdict and to award a new trial on all issues or simply
on the issue of damages.
In reviewing the verdict, we applied a similar standard as that in Martin and
stated in Syllabus Point 4 that:
'In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.' Syl. Pt. 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971).
The Court found that the damages were inadequate and remanded the matter for a new trial solely on the issue of damages.
Finally, in Moore v. St. Joseph's Hospital of Buckhannon, No. 27460 (W.Va. filed July 7, 2000) (per curiam), we affirmed an allegedly inadequate verdict of $150,000 in a wrongful death medical malpractice action. There we set forth the applicable standard of reviewing an allegedly inadequate verdict in wrongful death cases, in part, as follows:
In Kessel v. Leavitt, 204 W.Va. 95, 185, 511 S.E.2d
720, 810 (1998), this Court observed that in the
absence of any specific rules for measuring damages,
the amount to be awarded rests largely in the discretion
of the jury, and courts are reluctant to interfere with
such a verdict. (Quoting 22 Am. Jur. 2d Damages §
1021, at 1067 (1988) (footnote omitted). Generally,
[w]e will not find a jury verdict to be inadequate
unless it is a sum so low that under the facts of the case
reasonable men cannot differ about its inadequacy.
Syl. pt. 2, Fullmer v. Swift Energy Co., Inc., 185
W.Va. 45, 404 S.E.2d 534 (1991).
Moore, slip op. at 5.
At first glance, a tension in our law is suggested by this survey of wrongful death cases. Hawkins, Legg, and Kesner hold that a verdict in a wrongful death action will not be set aside unless it can be shown that the jury was misled or was motivated by passion, prejudice, partiality, or corruption. The recent cases of Martin, Linville, and Moore essentially indicate that a jury verdict will be set aside if it is clearly or manifestly inadequate or so low under the facts of the case that reasonable men cannot differ about its inadequacy. See footnote 6 6 We believe, however, that these two lines of cases can be harmonized by applying them to different circumstances. The Legg analysis applies specifically to those wrongful death cases in which evidence of jury passion, prejudice, partiality, or corruption is found in the record or raised by the parties in their pleadings to this Court. The Martin and Linville analysis, on the other hand, is applicable in those cases in which there is no evidence or claim of jury misconduct, but instead it is averred that the amount of damages is unreasonably low and at variance with the evidence adduced at trial. Therefore, rather than reading Martin/Linville as a clear break with the Legg analysis, we believe that Martin/Linville provide a standard for reviewing allegedly inadequate verdicts in wrongful death cases where there is no evidence or claim of jury misconduct.
Accordingly, we hold that in a wrongful death action, this Court will set
aside an allegedly inadequate verdict when it can be seen that the jury was misled or was
motivated by passion, prejudice, partiality, or corruption. In instances where the evidence
does not indicate and the plaintiff does not aver that the jury was misled or motivated by
passion, prejudice, partiality, or corruption, this Court will set aside an allegedly
inadequate verdict in a wrongful death action only where the verdict is a sum so low that
under the facts of the case reasonable men cannot differ about its inadequacy.
In the instant case, the record does not indicate that the jury was misled or
was motivated by passion, prejudice, partiality or corruption. Further, the parties do not
cite to the Legg analysis in their briefs to this Court. Instead, the question presented to this
Court by the appellant is whether the jury's verdict was so low under the facts that
reasonable persons could not differ as to its inadequacy. Accordingly, we will review the
challenged verdict under the Martin/Linville analysis.
Upon examination of the evidence, we find that the circuit court did not abuse its discretion in denying a new trial on the issue of damages. The jury in this action awarded the appellant the total amount of the decedent's medical and funeral expenses, and this amount was reduced by the decedent's percentage of negligence. Additionally, despite the fact that there was testimony that the decedent's loss of income amounted to $172,616.97, there was no evidence that the appellant was financially dependent on the decedent. Likewise, there was no evidence that the decedent provided any services to the appellant. Stated differently, there was no compelling evidence that the plaintiff suffered
any reasonably expected loss of . . . income of the decedent. W.Va. Code § 55-7-
Finally, given the decedent's significant percentage of negligence, the heavily
contested nature of liability, and the inherently subjective nature of determining the amount
of mental anguish damages, based upon our review of the evidence the jury was not
unreasonable in choosing not to award such damages. In summary, viewing the evidence
most strongly for the defendant, there is nothing in these facts which compels us to intrude
upon the province of the jury under W.Va. Code § 55-7-6 to decide the fair amount of
damages in a wrongful death action. See footnote 7
Accordingly, we affirm the circuit court's judgment
For all of the reasons stated above, we conclude that the circuit court did not
err in denying the appellant's motion for a new trial. Accordingly, the judgment of the
Circuit Court of Brooke County is affirmed.
The verdict of the jury shall include, but may not
be limited to, damages for the following: (A) Sorrow,
mental anguish, and solace which may include society,
companionship, comfort, guidance, kindly offices and
advice of the decedent; (B) compensation for reasonably
expected loss of (i) income of the decedent, and (ii)
services, protection, care and assistance provided by the
decedent; (C) expenses for the care, treatment and
hospitalization of the decedent incident to the injury
resulting in death; and (D) reasonable funeral expenses.
For example, in Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991), we determined that the discovery rule which extends the statute of limitations in medical malpractice claims cannot be used to extend the filing period in a wrongful death action. We reasoned that the bringing of a suit within two years from the death of the person, as required by W.Va. Code § 55-7-6, is an essential element of a wrongful death action and not a statute of limitation. We held in Syllabus Point 2 of Miller that [t]he two-year period which limits the time in which a decedent's representative can file suit is extended only when evidence of fraud, misrepresentation, or concealment of material facts surrounding the death is presented. See also Pennington v. Bear, 200 W.Va. 154, 488 S.E.2d 429 (1997). In Hawkins, Legg, and Kesner, the peculiar nature of wrongful death actions resulted in a more limited review by this Court of challenged jury verdicts in such cases.
To discredit this verdict is to discredit our American
jury system, a jury system in which many of our
citizens participate each year.
For all of its defects, the jury that our ancestors fought so hard to attain is a remarkable institution. What it actually means is that we have decided to give the ultimate say-so in our justice system to a diverse group of ordinary citizens -- our fathers and mothers, our sisters and brothers, our co-workers, and our friends. We have decided that it is better to place our faith in the common-sense of ordinary citizens than in a trained class of professional jurors.
Gerver v. Benavides, M.D., No. 26355, slip op. at 5 (W.Va. January 7, 2000) (Starcher J. concurring).