Megan Swartz, Plaintiff/Respondent v. Gale Webb Transportation Company, Defendant and Christopher Hobbs, Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Megan Swartz, Plaintiff/Respondent v. Gale Webb Transportation Company, Defendant and Christopher Hobbs, Defendant/Appellant. Case Number: 26725 Handdown Date: 06/26/2006 Appeal From: Circuit Court of Jasper County, Hon. William C. Crawford Counsel for Appellant: Randy P. Scheer and S. Jacob Sapping Counsel for Respondent: Eric M. Belk Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Judge Opinion Vote: AFFIRMED. Shrum, P.J., and Barney, J., - concur Opinion: Christopher Hobbs ("Hobbs") appeals from a judgment, entered on a jury verdict, awarding Megan Swartz ("Plaintiff") damages for personal injuries sustained when a car she was riding in, driven by Christopher Hobbs ("Hobbs"), collided with a school bus ("the school bus") owned by Gale Webb Transportation Company ("Webb"), and driven by Roberta Morris ("Morris"). This is a companion case to Swartz v. Gale Webb Transportation Co., No. 26722 (S.D. filed June 26, 2006) ("the Webb case"), the opinion in which is being handed down simultaneously with this opinion and in which Webb is the appellant. The facts in the two cases are the same, and some of the issues on appeal are the same or overlap. Accordingly, some issues will be discussed and decided by reference to the opinion in the Webb case. This case arose from an accident on September 20, 2000, when the school bus pulled from an intersecting road into the path of the Hobbs car, and the vehicles collided, injuring Plaintiff. Plaintiff filed suit against Webb, Hobbs and Morris, but dismissed the claim against the latter before trial. A jury returned a verdict for Plaintiff against both Hobbs and

Webb in the amount of $335,000 with fault apportioned 25% to Hobbs and 75% to Webb. Judgment was entered against them jointly and severally for $391,417.67, representing the amount of the verdict plus pre-judgment interest. This appeal followed the overruling of motions for new trial by both defendants. Hobbs' first point on appeal is that Dr. Clyde Parsons' ("Dr. Parsons") testimony, over objection, regarding the possibility of Plaintiff having to undergo spinal surgery in the future and its potential cost, allowed the jury to speculate and gave them a roving commission on the issue of damages in that it was not to a reasonable degree of medical certainty and amounted to mere conjecture and speculation. That testimony, more fully set out in our discussion of the first point in the Webb case, can be paraphrased as follows: Plaintiff might be looking at some sort of surgical procedure in the future – probably a fusion of the S1 joint or a procedure in the lumbar spine; she is at an increased risk for needing to have surgery, but the amount of that increased risk was difficult to quantify, although the doctor said it was a 50-50 chance that she would someday have to have a lumbar fusion; the cost of that surgery could be $25,000, but could be higher; that he could not say to a reasonable degree of medical certainty she would require that surgery; and whether she would require it would be speculation. In his second point, Hobbs contends that the admission of testimony by Dr. Brett Bowling ("Dr. Bowling") regarding the possibility of future surgery and the possibility of rehabilitative therapy also allowed the jury to speculate and provided a roving commission on the issue of damages. Again, he complains that the testimony in issue was not to a reasonable degree of medical certainty and therefore constituted conjecture and speculation. Dr. Bowling's testimony was also the subject of part of the first point in the Webb case. Summarized, it was that Plaintiff had a 25-50% chance of eventually needing surgery on her lower spine; and if she ever had to have surgery she would need rehabilitative therapy afterwards. In his third point, Hobbs contends that it was error not to give the withdrawal instruction he offered on the issue of Plaintiff's need for future surgery because the evidence was insufficient to permit it to be considered as part of her damage in that it was speculative and was not to a reasonable degree of medical certainty. This issue was also included in part of the first point discussed in the Webb case. As discussed in the Webb case, such testimony would not appear to be consistent with future damages or consequences being reasonably certain to occur in the future, and thus not admissible in light of cases discussed in that opinion. Hobbs v. Harken, 969 S.W.2d 318 (Mo.App. W.D. 1998); Kramer v. May Lumber Co., 432 S.W.2d 617 (Mo.App. K.C. 1968); and Hahn v. McDowell, 349 S.W.2d 479 (Mo.App. St. L. 1961). Portions of Stuart v. State Farm Mut. Auto Ins. Co., 699 S.W.2d 450 (Mo.App. W.D. 1985), would also appear to support the contention that such

testimony would not be admissible. As discussed in the Webb case, however, other portions of Stuart indicate that "risks" of something occurring are not speculative. As we discussed in Webb, we feel constrained to deny Hobbs' first three points on appeal based on our review of Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439 (Mo. banc 1998); Bynote v. National Super Markets, Inc., 891 S.W.2d 117 (Mo. banc 1995); Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202 (Mo. banc 1991); and Breeding v. Dodson Trailer Repair, Inc., 679 S.W.2d 281 (Mo. banc 1984), Accordingly, those points are denied. In his fourth and final point, Hobbs contends that the trial court erred in entering the judgment against him that included an award of pre-judgment interest on the entire verdict of $335,000, because any pre-judgment interest awarded against him should be based solely on his percentage of liability under the judgment. In support, he argues that the written demands by Plaintiff pursuant to Section 408.040(FN1) were for a payment of $100,000 from each defendant. In particular, he argues that the demand for settlement against him was for $100,000; that since he was adjudged to have been 25% at fault, his proportionate share of the judgment was $83,750, which is less than the $100,000 demand; and since 25% of the judgment would be less than the demand against him, he should have no liability for pre-judgment interest. Section 408.040.2 in effect at the time of the judgment in this case, provided, in pertinent part: In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Here, the court found that Plaintiff had sent Hobbs and Webb separate letters demanding settlement in the amount of $100,000 from each; that the amount of the verdict was $335,000 against both Hobbs and Webb jointly and severally; and it entered a joint and several judgment against them in the amount of $391,417.67 representing the amount of the verdict together with interest accrued pursuant to the then applicable version of Section 408.040.2. Interpreting a statute and determining whether it applies to a given set of facts are questions of law which the appellate court reviews de novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo.App. E.D. 2005). We must give

effect to the language of a statute as written, and may not add words or requirements by implication where the statute is not ambiguous. McCormack v. Capital Elec. Const. Co., Inc., 159 S.W.3d 387, 402 (Mo.App. W.D. 2004). It is noteworthy that the language of the statute in effect when this judgment was entered provided for prejudgment interest if a claimant "has made . . . an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment . . . exceeds the . . . offer of settlement." Here, an offer of settlement was made to each of the parties, but the judgment entered jointly and severally against both Hobbs and Webb exceeded that offer. The total amount of a judgment awarded against two or more parties determined to be liable jointly and severally is the amount utilized to determine if the judgment exceeded the offer of settlement. Werremeyer v. K.C. Auto Salvage Co., Inc., 134 S.W.3d 633, 636 (Mo. banc 2004); Boggs ex rel. Boggs, 164 S.W.3d at 25. This is consistent with the plain language of the statute. This point is denied. The judgment is affirmed. Footnotes: FN1.All references to statutes are to RSMo (2000) unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.