United States District Court,

E.D. Kentucky,

Southern Division,

Pikeville.

In re PIKEVILLE SCHOOL BUS COLLISION CASES.

 

Civil Nos. 11–158–ART, 11–159–ART.

Dec. 23, 2011.

 

Dustin Robert Williams, Gary C. Johnson, James Ryan Turner, Gary C. Johnson, P.S.C., Pikeville, KY, for Plaintiff.

 

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

The defendant State Farm Mutual Automobile Insurance Company removed these two cases to federal court on the basis of diversity jurisdiction. But State Farm waited more than one year from the commencement of the action to do so. Therefore, 28 U.S.C. § 1446(b) bars removal of these cases, and the Court must remand them back to state court.

 

BACKGROUND

At one time or another, every driver has faced a sea of red brake lights when traffic enters a school zone. Usually, these collective slowdowns occur without incident because the drivers have enough time to brake and avoid a collision. Even if drivers cannot avoid a collision, minor rear-end collisions are the norm.

 

Tragically, this case falls outside the norm. Kendall Slusher was driving a three-axle dump truck on U.S. Highway 460 on March 22, 2010, when he saw traffic slowing down in front of him. Corr. Resp., No. 11–158, R. 9 at 1; No. 11–159, R. 7 at 1–2. But he did not know that the reason for the collective slow down was an upcoming school zone. Id. When he realized that he could not avoid a collision, Slusher did what came naturally: he applied the emergency brake. Id. at 2. In hindsight, this was not a good idea. It caused him to lose control of the dump truck. Id. The truck spun clockwise across the center line and into oncoming traffic, striking a Pike County Board of Education school bus full of children. Id.

 

As with most accidents of this magnitude, temporary chaos ensues afterward, and the resulting lawsuits were not immune from this chaos. On September 24, 2010, the school bus driver, Peggy Childers, and many of the injured children (through next friends) filed a complaint in Pike Circuit Court against Slusher, his employer Kenny Belcher Trucking Company, the Pike County Board of Education, and these plaintiffs’ underinsured motorist carriers: Princeton Excess and Surplus Lines Insurance Company, West American Insurance Company, Hartford Accident and Indemnity Company, and Kentucky Farm Bureau Mutual Insurance Company. See Compl., No. 11–158, R. 5–1; No. 11–159, R. 5–1. Meanwhile, other children brought another lawsuit in Pike Circuit Court. See Bowling, et al. v. Belcher, et al., No. 10–CI–00568 (Pike Cir. Ct.). The Pike Circuit Court consolidated this latter lawsuit with the first one, and the consolidated suit maintained the same docket number as Childers’s lawsuit. Order, No. 11–158, R. 1–3 at 102; No. 11–159, R. 1–3 at 102.

 

But even this consolidated action did not consist of all the plaintiffs and defendants. On October 4, 2010, plaintiffs J.E., K.E ., L.H., C.H., and C.H. moved to intervene in the consolidated action and add State Farm—their underinsured motorist carrier—as a defendant to the consolidated action. Mot. to Intervene, No 11–158, R. 1–3 at 1–3; No. 11–159, R. 1–3 at 1–3. On October 13, 2010, the Pike Circuit Court granted the motion to intervene and docketed the intervening complaint. Order, No. 11–158, R. 1–3 at 108; No. 11–159, R. 1–3 at 108.

 

After nearly a year in discovery, the parties developed, and the court approved, a procedure to adjudicate these cases efficiently. Corr. Resp., No. 11–158, R. 9 at 2–3; No. 11–159, R. 7 at 2–3. Because Slusher and his employer Belcher Trucking were common defendants as to all of the plaintiffs’ claims, but the plaintiffs had different underinsurance providers, the plaintiffs agreed to binding arbitration of their claims against the common defendants. Id. at 2–3. The arbitration process would divide up the insurance policy limits of the common defendants among the plaintiffs according to severity of each plaintiff’s injuries. Id . at 3. The payment of this arbitration award would trigger several events. Id. First, the parties agreed that payment of the arbitration award would result in the dismissal of Slusher and Belcher Trucking from the consolidated action, leaving only the plaintiffs’ underinsurance carriers as defendants. Id. Second, the consolidated action would be severed into separate actions with each group of plaintiffs having a cause of action against his or her underinsured motorist carrier. Id. For example, one of the severed cases would involve the intervening plaintiffs J.E. and K.E against State Farm and another case would involve the intervening plaintiffs C.H. and C.H. against State Farm.

 

With this procedure established, the Pikeville Circuit Court ordered the consolidated action to arbitration on August 8, 2011. Order, R. 11–158, R. 1–3 at 43; R. 11–159, R. 1–3 at 43. The arbitrator filed her recommendations on September 16, 2011, which she amended eleven days later. R. 11–158, R. 9–3; R. 11–159, R. 7–3. For its part, State Farm then informed the plaintiffs that it would not pursue its subrogation rights with respect to the arbitration award, leaving the plaintiffs free to collect the amounts due under the arbitration award. Corr. Resp., No. 11–158, R. 9 at 3–4; No. 11–159, R. 7 at 3–4.

 

Although the Pikeville Circuit Court had not yet dismissed the common defendants or severed the consolidated cases, State Farm wanted to remove two of the soon-to-be-separate cases to federal court. So it did exactly that. On October 12, 2011, it filed two notices of removal: one with respect to plaintiffs J.E. and K.E., No. 11–158, R. 1, and another with respect to plaintiffs C.H. and K.H., No. 11–159, R. 1. Less than thirty days later, the plaintiffs in each removed case, who are represented by the same attorney, filed motions to remand these cases back to state court. No. 11–158, R. 5; No. 11–159, R. 4. Because these two removed actions stem from the same consolidated state court action, the notices of removal were filed on the same day, and the pleadings are identical except for the parties’ identities, the Court will address both cases in this Order.

 

DISCUSSION

I. These cases must be remanded because State Farm did not remove them within one year of the commencement of the state court action.

Because the state court action was commenced on September 24, 2010, and State Farm waited over one year to file its notices of removal on October 12, 2011, the Court must remand these cases. In a case that is not initially removable, the case may not be removed on the basis of diversity jurisdiction “more than 1 year after commencement of the action.” Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.1999) (quoting 28 U.S.C. § 1446(b)). Here, it is clear that the state court case was not initially removable. At the time, the parties were not completely diverse because defendants Slusher, Belcher Trucking, and Kentucky Farm Bureau, as well as most of the plaintiffs, were citizens of Kentucky. Compl., No. 11–158, R. 5–1 ¶¶ 1–7, 12; No. 11–159, R. 5–1 ¶¶ 1–7, 12. In addition, because defendants Slusher, Belcher Trucking, and Kentucky Farm Bureau were “citizen[s] of the State in which [the] action is brought,” the resident defendant exception prohibited the case from being removed. 28 U.S.C. § 1441(b). Therefore, the one-year limit applies and the Court must remand these cases if more than one year has passed between “commencement of the action” and October 12, 2011, the date State Farm filed its notice of removal. 28 U.S.C. § 1446(b).

 

The Sixth Circuit has not yet interpreted the phrase “commencement of the action.” But it has suggested, as a threshold matter, that the phrase derives its meaning from federal, not state, law. See Brierly, 184 F.3d at 534 (applying the definition of “commencement of the action” found in Fed.R.Civ.P. 3 to determine when the one-year clock began in a diversity action); accord Norman v. Sundance Spas, Inc., 844 F.Supp. 355, 357 (W.D.Ky.1994) (referring to federal law as the source for the definition of “commencement of the action”). But see Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir.2007) (joining other courts of appeals in concluding that state law determines when an action is “commenced” under the Class Action Fairness Act); Cannon v. Kroger Co., 837 F.2d 660, 664 (4th Cir.1988) (“It is clear that a federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then removed to federal court….”). Ultimately, it does not matter whether the Court relies on federal or state law to interpret “commencement of the action” because applying the Federal Rules of Civil Procedure and Kentucky Rules of Civil Procedure yield the same result in this case. Compare Fed.R.Civ.P. 3 (“A civil action is commenced by filing a complaint with the court.”) with Ky. R. Civ. P. 3.01 (“A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.”). The parties do not contend otherwise.

 

The question before the Court is whether, by intervening in an existing civil action and adding a new defendant, plaintiffs “commence” a new civil action for purposes of a jurisdictional statute. They do not. Consequently, the one-year clock in § 1446(b) starts to tick when the original complaint is filed, and this time limit does not reset for later-added defendants.

 

As with any legal text, interpretation begins with the plain language of the statute. The removal statutes use the term “action” interchangeably with “civil action,” but do not define either term. Historical usage indicates that “action” and “suit” both referred to entire proceedings or cases. See, e.g., Black’s Law Dictionary (9th ed.2009) (third definition of “claim”) (“A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.”) (emphasis added). The only difference was their context: “action” referred to proceedings in courts of law and “suit” referred to proceedings in courts of equity. Black’s Law Dictionary (9th ed.2009) (fourth definition of “action”) (citing Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3 (2d ed. 1899)); see also Fed.R.Civ.P. 1, Notes of Advisory Committee on Rules—1966 Amendment (referring to the “elimination of a distinction between actions at law and suits in equity”). The removal statutes employ this same understanding of the term “civil action.” The removal statutes only permit removal of entire “civil actions” that are based on diversity jurisdiction; defendants are not allowed to remove pieces of a state court case or abandon un-consenting defendants in state court. See generally 28 U.S.C. § 1441. So it stands to reason that a subset of claims between an intervening plaintiff and one of many defendants cannot qualify as an “action” because these claims are only a piece of the entire state court proceeding.

 

If it were otherwise—if an intervening plaintiff’s claims against a later-added defendant qualified as a new “civil action”—then the plain language of § 1441 would permit the defendant to remove only the intervening plaintiff’s claims and leave the rest of the claims, defendants, and plaintiffs behind in state court. But this possibility would contradict the longstanding prohibition on piecemeal removal of cases. See Wright & Miller, Federal Practice & Procedure § 3722.3 (4th ed.2011) (explaining how Congress previously endorsed piecemeal removal under the 1866 Separable Controversy Act, but the ensuing “confusion and embarrassment, as well as increase in cost of litigation” led Congress to “put an end” to piecemeal removal by adopting § 1441(c), which governed both diversity and federal question cases until 1990); see also Wilson v. Lowe’s Home Ctr., Inc., 401 F.Supp.2d 186, 19697 (D.Conn.2005) (same); Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir.2009) (explaining the rule that all defendants must consent to removal, thus prohibiting a single defendant from removing only part of a case).

 

The same interpretation of “commencement of an action” can be reached by examining the procedural mechanism of intervention. By intervening in an existing proceeding, a party does not create a new action, but only “voluntarily enters a pending lawsuit because of a personal stake in it.” Black’s Law Dictionary (9th ed.2009) (definition of “intervenor”) (emphasis added). Judicial practice confirms this relationship between intervention and the commencement of an action. Indeed, one need only look at the docket sheet for the consolidated state action below to come to this conclusion. When the Pike Circuit Court permitted J.E., K.E., C.H., and C.H. to intervene, the court did not issue a new civil action number for the case. The intervening plaintiffs were simply added to existing civil action number 10–CI–01494. Accord U.S. Airways, Inc. v. PMA Capital Ins. Co., 340 F.Supp.2d 699, 706 (E.D.Va.2004) (Ellis, J .) (“When additional defendants are joined, no second action is commenced and no new case number is assigned; rather, the action is then pending as to the joined defendants in addition to those parties already defendants. In sum, … an action commences only once.”).

 

Furthermore, the time limit in § 1446(b) does not distinguish between defendants named in the original complaint and later-added defendants. It would have been easy for Congress to do so: § 1446(b) could have said that “a case may not be removed on the basis of [diversity jurisdiction] more than 1 year after the commencement of the action against that party.” Sasser v. Ford Motor Co., 126 F.Supp.2d 1333, 1336 (M.D.Ala.2001); accord U.S. Airways, Inc., 340 F.Supp.2d at 706 n. 8 (“If Congress had intended that a separate and distinct one year removal limit would commence to run upon the joining of any additional defendant, it would have written the statute to read that diversity cases are barred from removal more than one year after commencement of the action against each defendant.”). Congress’s decision not to make such a distinction strongly suggests that the one-year time limit starts at the same time for both originally named defendants and later-added defendants. And State Farm does not offer any reason to support performing judicial surgery on the clear language in § 1446(b).

 

Unsurprisingly, nearly every other court to interpret this phrase in § 1446(b) has also come to the same conclusion regardless of whether the courts ultimately based their decisions on state or federal law. See, e.g., First Merchants Trust Co. v. Wal–Mart Stores East, LP, 630 F.Supp.2d 964, 969–70 (S.D.Ind.2008) (holding that the plain meaning of § 1446(b) does not give later-added defendants their own one-year time limit); U.S. Airways, Inc., 340 F.Supp.2d at 704–07 (rejecting argument that one-year time limit does not begin to run against later-added defendant until that defendant is joined); Ardoin v. Stine Lumber Co., 298 F.Supp.2d 422, 425 (W.D.La.2003) (holding that the addition of a new plaintiff did not restart the one-year limit for removal); Sasser, 126 F.Supp.2d at 1335–37 (same); Howell v. St. Paul Fire & Marine Ins. Co., 955 F.Supp. 660, 662–63 (M.D.La.1997) (same); Lytle v. Lytle, 982 F.Supp. 671, 674 (E.D.Mo.1997) (holding that the one-year limit prohibited third-party defendants from removing the case even though the third-party defendants were brought into the action more than one year after the filing of the original complaint); Norman v. Sundance Spas, Inc., 844 F.Supp. 355, 357 (W.D.Ky.1994) (applying federal law and concluding that a later-amended complaint that adds a new defendant does not commence a new action); accord Weber v. Mobil Oil Corp., 506 F.3d 1311, 1316 (10th Cir.2007) (“[I]ntervening plaintiffs asserting identical causes of action against the same defendants as named in the original complaint [does not] change the commencement date of the suit for purposes of CAFA or any other jurisdictional statute”). Courts interpreting identical or similar phrases in other jurisdictional contexts have likewise come to similar conclusions. For example, the First Circuit interpreted the phrase “[n]o action may be commenced” in the Clean Water Act to conclude that an intervening party “did not ‘commence’ [an] action,” but only “intervened in an existing action.”   Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1296 n. 27 (1st Cir.1996). Likewise, in interpreting the phrase “any civil action commenced” on or after the effective date of the Class Action Fairness Act, the Tenth Circuit concluded that a federal plaintiffs’ intervention did not commence a new “action.” Weber, 506 F.3d at 1316.

 

There is no doubt that the text is clear in this case. But for those readers who find congressional purpose and legislative history to be persuasive supplements to a textual interpretation, these sources of information also support the Court’s interpretation of § 1446(b). Before Congress added the one-year time limit in 1988, the addition, substitution, and elimination of parties as a state court action progressed towards trial could create diversity and thus permit removal “late in the proceedings.” H.R.Rep. No. 100–889, at 72 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6032–33. For example, if a plaintiff settled with the only non-diverse defendant on the night before trial, the remaining defendants could remove the case even if the action had been pending for years. Id. To avoid this “substantial delay and disruption,” Congress added the one-year time limit as a “modest curtailment” of removal based on diversity jurisdiction. Id.; see also Court Reform and Access to Justice Act: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 100th Cong. 97 (1987) (prepared testimony of Hon. Elmo B. Hunter, Chairperson of the Comm. on Court Admin. of the Judicial Conference). If later-added defendants got their own one-year time limit for removal, this would “effectively extend the opportunity for removal to months, indeed even years, later when new parties might be added or subtracted.” U.S. Airways, Inc., 340 F.Supp.2d at 706. This conclusion would contradict Congress’s intent in creating the one-year removal limit as a rule-like means of “reducing the opportunity for removal after substantial progress has been made in state court.” H.R.Rep. No. 889, at 72.

 

Lastly, statutes conferring removal jurisdiction must be “construed strictly because removal jurisdiction encroaches on a state court’s jurisdiction.”   Brierly, 184 F.3d at 534 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). And there is a presumption against federal jurisdiction that the party invoking jurisdiction—here, State Farm—has the burden to overcome. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Therefore, strict construction of § 1446(b) as well as the presumption against this Court’s jurisdiction erases any lingering doubts as to whether intervening commences a new civil action.

 

State Farm does not discuss or cite § 1446(b), let alone any cases interpreting the phrase “commencement of the action.” Instead, State Farm quickly proclaims, without any supporting authority, that it “cannot be bound under a one year period for which [it] was completely unaware of any action arising from the bus accident.” Corr. Resp., No. 11–158, R. 9 at 11; No. 11–159, R. 7 at 11. In essence, State Farm argues that starting the one-year clock when State Farm was not yet a party to the action is unfair. But, fair or not, Congress chose an administratively clear rule to curtail “the opportunity for removal after substantial progress has been made in state court.” Staggs v. Union Pac. R.R. Co., No. 1:10CV00096, 2011 WL 335671, at(E.D.Ark. Jan. 28, 2011) (quoting H.R.Rep. No. 100–889, at 72). And if Congress wants to remedy any injustices created by this clear rule, it has already demonstrated that it has the capacity to do so. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. 112–63, 125 Stat. 758 § 103 (Dec. 7, 2011) (creating an exception to § 1446(b)’s one-year limit, effective for cases removed or commenced after January 6, 2012, if “the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action”).

 

Having concluded that the phrase “commencement of the action” refers to the filing of the original complaint, it is clear that State Farm waited too long to file its notices of removal. The original complaint was filed in Pike Circuit Court on September 24, 2010. State Farm removed these cases on October 12, 2011—nearly three weeks too late. Therefore, State Farm must defend itself in state court.

 

II. The plaintiffs’ other arguments for remand

In their motions to remand, the plaintiffs make several other arguments. First, they argue that State Farm removed these cases more than thirty days after the cases first became removable, and thus removal is procedurally barred by § 1446(b). Second, the plaintiffs argue that there is no complete diversity because the non-diverse defendants Slusher and Belcher Trucking have not yet been formally dismissed by the state court. See Mot. to Remand, No. 11–158, R. 5 at 2–5; No. 11–159, R. 5 at 2–5. Because the one-year time limit in § 1446(b) mandates remand of these cases, however, the Court will not opine on the merits of the plaintiffs’ other arguments.

 

CONCLUSION

Accordingly, it is ORDERED as follows:

 

(1) The plaintiffs’ motion to remand in Easterling v. State Farm, No. 11–158, R. 4, is GRANTED. This case is REMANDED to the Pike Circuit Court and STRICKEN from the Court’s active docket.

 

(2) The plaintiffs’ motion to remand in Breeding v. State Farm, No. 11–159, R. 4, is GRANTED. This case is REMANDED to the Pike Circuit Court and STRICKEN from the Court’s active docket.

Court of Appeals of Kentucky.

Barbara FERGUSON, Appellant

v.

UNDERTOW TRUCKING, INC., Appellee.

 

No. 2011–CA–000064–MR.

Dec. 22, 2011.

 

Before ACREE, CLAYTON, and WINE, Judges.

 

OPINION

CLAYTON, Judge.

Barbara Ferguson appeals from a judgment entered by the Johnson Circuit Court in a commercial motor vehicle accident. The judgment was based on a unanimous jury verdict in favor of Undertow Trucking, Inc. Ferguson maintains that the trial court erred when it failed to grant her motion for directed verdict on the issue of liability and denied her motion for a judgment notwithstanding the verdict. Furthermore, she argues that the trial court provided the jury with erroneous damage instructions. For the following reasons, we affirm.

 

BACKGROUND

On September 18, 2008, Barbara Ferguson and Jason Blair were involved in a motor vehicle accident in Johnson County, Kentucky. While no contact occurred between Ferguson’s car and Blair’s truck, Ferguson was injured when she swerved into the guardrail ostensibly to avoid Blair’s truck. Blair was driving a truck for Undertow Trucking, Inc. (hereinafter “Undertow Trucking”). Apparently, the truck crossed the centerline while negotiating a curve on Kentucky Route 172. Kentucky Route 172 is a two-lane highway with a double-yellow line divider. A guardrail is on the side of the highway adjacent to a drop that ends in a ravine and creek.

 

Ferguson filed a complaint on October 22, 2009, alleging that because the Undertow Trucking vehicle was across the centerline of the highway when the accident occurred, it was the cause of her injuries. In the complaint, she alleged negligence; negligence per se; respondeat superior liability; and negligent hiring, entrustment, and retention. According to Ferguson’s doctors, she suffered a torn right rotator cuff as well as injuries to her neck and back because of the accident.

 

Trial was held on October 28, 2010. The following people testified at trial: Blair, who is the sole owner and driver for Undertow Trucking; Ferguson’s spouse, Corlis; and Ferguson. Additionally, the video depositions of Drs. Ronald Mann and Keith Hall, Ferguson’s treating physicians, were played for the jury.

 

Blair testified that he was hauling coal from Twin Energy Mine in Morgan County and had been doing so for several weeks. Typically, he made the trip three times per day. He also stated that Kentucky Route 172 is a tight squeeze for a coal truck and has many sharp curves. Blair was making his third trip of the day when he entered the curve in question. He observed that his vision was obscured because of the leaves on the trees.

 

Regarding the events of that day, Blair stated that he was well into the curve before he saw Ferguson’s vehicle and that as he entered the curve, his tractor and trailer were completely in the proper lane. But, as he came through the curve, the truck crossed the centerline. While Blair said that it is possible to keep a tractor-trailer on its side of the yellow line at this particular curve, in this case, he explained that the truck was on the wrong side of the yellow line because of off-tracking. Off-tracking, he explained, is when the trailer is not following the same line as the tractor due to its length.

 

Additionally, Blair conceded that the tractor-trailer was extremely heavy and, therefore, he needed to be extremely careful navigating a road like Kentucky Route 172. Furthermore, Blair acknowledged that Ferguson was on her side of the yellow line and not driving too fast or erratically.

 

Next, Ferguson’s spouse, Corlis testified. He is also a truck driver. In his statements, he claimed that it is possible to drive within the curves of Kentucky Route 172, which he also travels.

 

Dr. Mann and Dr. Hall testified in the video depositions. Dr. Mann stated that he believed that the accident caused Ferguson’s injuries, that she suffered physical pain and mental anguish as a result of the injuries, and that she will continue to have pain in the future. Moreover, Dr. Mann opined that Ferguson had an increased risk of future complications from her injuries. In Dr. Hall’s testimony, he opined that that Ferguson suffered pain as a result of the accident.

 

Finally, Ferguson testified. She stated that she was completely in her lane going into the curve and that the tractor-trailer was more than a tire and a tire and a half in her lane. She claimed that if she had had enough room, her vehicle would not have hit the guardrail. And Ferguson said that she was not on a cell phone or distracted by her grandchild or ever outside the yellow line.

 

At the conclusion of testimony, Ferguson moved for a directed verdict on the issue of liability since Blair admitted that he was on Ferguson’s side of the yellow line. The trial court denied the directed verdict motion. The jury deliberated and entered a unanimous verdict for Undertow Trucking. Subsequently, Ferguson made a motion for a judgment notwithstanding the verdict, which the trial court denied on December 14, 2010. This appeal follows.

 

ISSUES

On appeal, Ferguson argues three main issues. She maintains that the trial court should have granted the motion for directed verdict on the issue of Undertow Trucking’s liability; that the trial court should have tendered separate instructions for past pain and suffering as well as future pain and suffering; and, finally, that Ferguson is entitled to jury instruction including the words—“inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

 

Undertow Trucking counters these arguments by noting that the trial court properly refused to direct a verdict of liability against the company; that the jury instructions appropriately instructed the jury regarding past and future pain and suffering; and, lastly, that the failure to include a jury instruction on damages for inconvenience, increased likelihood of future complications, and loss of enjoyment of life is harmless error.

 

STANDARD OF REVIEW

The standard of review for reviewing a motion for a directed verdict is set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky.1990), as follows:

 

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “ ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’ “ NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.

 

Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky.1991).

 

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky.App.2006). With these standards in mind, we now turn to the issues in the instant case.

 

ANALYSIS

1. Directed Verdict

Ferguson relies on Kentucky Revised Statute(s)(KRS) 446.070 to argue that the unexcused violation of a statute is negligence per se. She cites several statutes, which she maintains Blair violated. These statutes are KRS 189.290, KRS 189.300, KRS 189.310, KRS 189.345, and KRS 189.670. In sum, these statutes are safety statutes that require heavy motor trucks, like the one in this case, to drive safely on the highways and travel on the correct side of the highway. We observe that KRS 189.310 and KRS 189.345 appear to be particularly relevant. KRS 189.310(1) and (2) state:

 

(1) Two (2) vehicles passing or about to pass each other in opposite directions shall have the right-of-way, and no other vehicle to the rear of those two (2) vehicles shall pass or attempt to pass either of those vehicles.

 

(2) Vehicles proceeding from opposite directions shall pass each other from the right, each giving to the other one-half (1/2) of the highway as nearly as possible.

 

And KRS 189.345(1)(a) provides:

(1) No vehicle shall be driven on the left side of the roadway under the following conditions:

 

(a) When approaching or upon the crest of a grade or a curve in the highway where the operator’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;

 

At the outset, we note that violation of a statute or regulation does not necessarily result in a viable claim of negligence per se. As stated in Alderman v. Bradley, 957 S.W.2d 264, 267 (Ky.App.1997):

 

In order for a violation to become negligence per se, the plaintiff must be a member of the class of persons intended to be protected by the regulation, and the injury suffered must be an event which the regulation was designed to prevent. Only when both requirements are affirmatively demonstrated is negligence per se established with the applicable regulation or statute defining the relevant standard of care.

 

Given that the applicable statutes herein are intended to protect motorists from injury on the highway, and Ferguson is a motorist, we move to the next step in the analysis.

 

Ferguson maintains that because Blair failed to stay on his side of the highway, as required by statute, he is negligent per se. Under KRS 189.310(2), she argues that Blair did not give her “one-half (1/2) of the highway as nearly as possible.” Further, Ferguson claims that under KRS 189.345(1)(a), Blair did not stay on “the left side of the roadway,” as required by the conditions herein. She, then, appears to be suggesting that proof of a statutory violation and an admission of negligence create strict liability.

 

According to Hargis v. Baize, 168 S.W.3d 36, 46 (Ky.2005), a “violation of a statute does not necessarily create liability.” The statute must not only “intend to prevent the type of occurrence that took place, [it also] must have been a substantial factor in causing the result.” Id. (citation omitted). Hence, even though under KRS 189.290(1) Kentucky law requires drivers to operate their vehicles in “a careful manner, with regard for the safety and convenience of pedestrians and other vehicles upon the highway[,]” and other motor vehicle statutes are even more particular as to Blair’s driving actions, Ferguson must still demonstrate that Blair’s negligence was the cause of the injury before liability attaches. See Greathouse v. Mitchell, 249 S.W.2d 738, 740 (Ky.1952).

 

In fact, a violation of a statute does not automatically lead to liability. In order for liability to attach, even with a violation of a statute, the negligence must be the cause of the injury before liability attaches. Id. Although there are no specific cases with facts exactly like this case, other Kentucky cases have noted the lack of strict liability for violations of traffic statutes. For instance, in a case where an automobile driver struck another automobile in the rear, it was held that the driver was not subject to strict liability. Rather, the Court held that it must also be shown that prior to a finding of fault, it must be established that the driver at fault violated the duty of ordinary care. USAA Casualty Insurance Company v. Kramer, 987 S.W.2d 779, 782 (Ky.1999).

 

Ferguson cites several cases to support her proposition that because Blair has admitted he was over the yellow line, and thus violated a statute, it was negligence per se. These cases do not alter our reasoning that Ferguson still must establish that Blair’s actions were the proximate cause of her injuries. The first, Hargis v. Baize, which we noted above for other purposes, involved a case concerning Kentucky’s Occupational Safety and Health Act, not motor vehicle statutes. Later in that case, the Court stated:

 

The violation of a statute does not necessarily create liability. The statute must have been specifically intended to prevent the type of occurrence that took place, and the violation must have been a substantial factor in causing the result. Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky.1999).

 

Hargis, 168 S.W.3d at 46. While Jewell v. Dell, 284 S.W.2d 92 (Ky.1955), does state that violation of the terms of traffic statutes is negligence per se, it also very clearly says that proximate cause must also be shown. Lastly, in Previs v. Dailey, 180 S.W.3d 435 (Ky.2005), although the Court there held that the violation of an ordinance was negligence per se, in that case the driver of the truck clearly admitted that his actions caused the injuries.

 

Therefore, Ferguson’s view that she is entitled to a directed verdict on liability because Blair was over the yellow line is overly simplistic. Ferguson must not only establish negligence, she must also show proximate causation. Legal causation is established by demonstrating that an actor’s negligent conduct was a substantial factor in bringing about the harm. “Substantial factor” is explained in Restatement (Second) of Torts § 431 cmt. a (1965):

 

In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent…. [T]his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm. The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

 

Causation is a mixed question of law and fact. See Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky.1980). Typically, mixed questions of law and fact are reviewed de novo. At times, however, causation becomes an issue of fact for the jury. In this situation, the proximate causation was an issue for the jury. In Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky.2003), citing Restatement (Second) of Torts § 434 (1965), the Court addressed “when legal causation is a question of law for the court and when it is a question of fact for the jury.”

 

Section 434 of the Restatement (Second) of Torts addresses the issues of when legal causation is a question of law for the court and when it is a question of fact for the jury. The court has the duty to determine “whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.” Section 431(1)(a).

 

Here, the dispute is factual and, hence, a jury question. It revolves around Ferguson and Blair’s factual dispute as to the location of his tires across the centerline and whether his actions were the substantial cause of Ferguson’s injuries. Ferguson says that she had nowhere to go but the guardrail because Blair was in her lane coming straight toward her. Whereas Blair admitted that he was across the yellow line because of off-tracking but only to the extent of a tire or a tire and half. Therefore, he maintains that Ferguson had ample room to pass without hitting the guardrail. The jury believed Blair’s version of the events, that is, Ferguson had room to pass. Therefore, the jury determined that Blair’s actions were not the proximate cause of Ferguson’s injuries. Apparently, the jury believed that it was Ferguson’s reaction to the situation that caused her to hit the guardrail.

 

In this calculus, it is the trial judge who decides whether to grant a motion for directed verdict. In Bierman v. Klapheke, 967 S.W.2d 16, 18–9 (Ky.1998), the Kentucky Supreme Court noted:

 

In reviewing the sufficiency of evidence, the appellate court must respect the opinion of the trial judge who heard the evidence. A reviewing court is rarely in as good a position as the trial judge who presided over the initial trial to decide whether a jury can properly consider the evidence presented. Generally, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.

 

Since the prevailing party was Blair, he was entitled to all reasonable inferences that the trial court could give the facts and evidence. Here, we concur with the trial judge’s assessment that disputed issues of fact existed upon which reasonable minds could differ. The evidence heard by the jury was that Blair’s truck made no contact with Ferguson’s vehicle and no airbags deployed. Blair said he was unaware that Ferguson’s vehicle had made impact with the guardrail.

 

The verdict rendered was not palpably or flagrantly against the evidence to suggest it was made as a result of passion or prejudice. Lewis, 798 S.W.2d at 461–462.

 

Since it was disputed as to whether Blair was the proximate cause of Ferguson’s injuries, the trial judge was constrained from granting a directed verdict on the issue of liability.

 

Therefore, after careful review of the proceedings of the trial court, we are convinced that based upon the evidence adduced at trial, a jury could reasonably have made the inferences herein. Although a different conclusion might have been reached, we are unable to conclude that, following the denial of the motion for a directed verdict, that the jury verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. Consequently, consistent with Lewis, we hold that the court did not err when it denied Ferguson’s motion for a directed verdict.

 

2. Jury Instructions

Regarding jury instructions, Ferguson initially claims that the court erred when it failed to provide separate instructions regarding past and future pain and suffering. She also maintains that the trial court erred by not including the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

 

Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky.App.1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

 

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

 

The judgment of the Johnson Circuit Court is affirmed.

 

ALL CONCUR.