On February 15, 2019 a federal court jury in Gulfport rendered a total verdict of $4,170,172 in Woulard v. Greenwood Motor Lines. The case involved an 18-wheeler colliding with a car on I-10 in Jackson County. Here is the Complaint.

Here is the Final Judgment.

The jury apportioned 80% fault to the driver of the 18-wheeler. Economic damages were $2,670,172. Non-economic damages were $1.5 million.

The court applied the $1 million cap on non-economic damages before deducting the 20% fault not apportioned to the defendant.

John Satcher of Jackson and Sean O’Rourke of Webster, Texas represented plaintiff.

Brent Cole, Sterling Kidd and Stephen Kennedy of Baker Donelson in Jackson and Joe Sam Owen with Owen & Galloway in Gulfport represented defendant.

District Judge Sul Ozerden presided.

My Take:

If the purpose of caps is to protect defendants from huge judgments based on non-economic damages, they should apply to verdicts after apportionment of fault. Here, the judgment for non-economic damages would be $1 million ($1.5 million – $300,000 = $1.2 million).

If the purpose of caps is to lower verdicts as much as possible, then caps should apply before apportionment, as done here.

Unless I’m mistaken, the way the Court applied caps here, if the jury had apportioned 20% fault to the defendant, the non-economic damages judgment would have been $40,000 ($200,000 – $160,000 = $40,000).

That doesn’t seem fair. Particularly since 18-wheelers have to be heavily insured.

At least caps do not apply to non-economic damages. In tort cases, I wouldn’t count on that being the law forever in Mississippi. It’s already not the law in Tort Claims Act cases.

  • Pete Perry

    Other than being a comment from an attorney, what does “being fair” have to do with the truck line “being heavily insured”? Seems to me, fairness, damages, etc all are irrespective of who has insurance and for how much. Maybe to ‘insure myself’ in the future, I should make sure that I have the absolute minimum insurance, so that to “be fair” to me, the damages will be reduced.

    • Philip Thomas

      You may be right. I’m biased.

      I’d be careful on the not carrying insurance. When that decision goes bad, it goes spectacularly bad. I’d go the other way and buy an umbrella policy. They are cheap and provide peace of mind.

      • Pete Perry

        Of course you are correct on my comment about not carrying insurance. But if the argument is made that if one is “heavily insured” the damages need to be high to be “fair” – as opposed to the actual damages should determine what is fair – I wouldn’t be surprised if many individuals do follow the theory

        • Philip Thomas

          That wasn’t what I was trying to say. My argument is that if the jury says your economic damages are $1.5 million, then caps should not kick in before apportionment. This guys is getting 53% of what the jury said his non-economic damages were. The defendant was 80% at fault. Without caps, he would owe $1.2 million in non-economic damages. He should owe $1 million, which is 66.6% of the non-economic verdict. He still would benefit from caps.

          • Pete Perry

            I understand your math, and your premise. And not sure whether I disagree with it, based on the current status of non-economic damages. (My theory, though, is that if non-economic damages are to teach the defendant to ‘not do it again’ -which was what the old argument for them was -then the damages should be paid to the state, not to the individual. But I realize that would greatly affect the process and the howls would never stop.)

            But while I understand your math, and your premise, it was your statement that they should be paid to be “fair” BECAUSE the defendant had good insurance. Being fair is ok; but the reasoning to connect it to the amount of insurance coverage was where I had a different viewpoint.

            • Philip Thomas

              Punitive damages are the ones to punish the defendant and deter others. Punitive damages are rarely awarded and almost never even sought in car wreck cases.

              Non-economic damages are part of actual damages and are supposed to make the plaintiff whole. Non-economic damages include physical and mental pain.

              The reason caps on non-economic damages are controversial is that if you have a catastrophic injury like paralysis or severe burns, $1 million will not make the person whole. But that’s all they can recover.

              We also have caps on punitive damages and limiting guidelines set by the U.S. Supreme Court. Punitive caps have their own set of flaws, but are more defensible than non-economic caps because they don’t prevent the plaintiff from being made whole.

              The law agrees with you on the insurance point. Evidence of insurance is not admissible.

  • Macy Hanson

    The real issue here is that damage caps, unless otherwise specified, explicitly, should be applied after apportionment of fault. Application of damage caps, unless otherwise specified, should be the final adjustment to a court award. The basic point of caps is to tally up all of the damages to their final amount (pre-cap-application) and then apply whatever caps apply.

    We need to get some appellate case law on this. I never even considered the thought that the caps might be applied before apportionment of fault.

    • Guest

      There is already case law on it. See the Barnett decision issued by the Court of Appeals. You apportion first then reduce to caps if needed

      • Andy

        Yeah, Barnett got it wrong, imho … “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than …” – the verdict is “the award,” it seems to me, the amount of damages suffered, which doesn’t change depending on who’s liable & how much. Disappointing that the MSSC didn’t grant cert to resolve it one way or the other.

  • Gulf Stream

    Lot of big verdicts down in the Southern Division lately. I wonder if the Defendant second-guesses removing this one out of Jackson County?

    • Philip Thomas

      When I lose I second guess everything. Eventually, I decide we got screwed.

  • Will Raiford

    I agree Mississippi Valley Silica v Barnett should have been controlling. I recall a petition for cert was granted. If the Supremes have ruled I am unaware of it. Still seems federal court should have applied unless overturned.

    • Rocky

      Looks like the Plaintiff filed a Motion to Alter or Amend the Judgment pursuant to FRCP 59(e). The brief cites Miss. Valley Silica v. Barnett (Miss. Ct. App. 2016) and Graves v. Toyota (S.D. Miss – Judge Starrett 2012). The proper procedure is to apply the jury’s allocation of fault first and then, if necessary, apply the statutory caps.

      I think its time for some corrective Tort Reform for the Plaintiffs. The old cap of $1,000,000 is dated and hasn’t increased with inflation. Also, Plaintiffs that are disfigured, burned or paralyzed are not adequately compensated. Maybe a more proper non-economic award should be:

      “Plaintiff can obtain non-economic damages equal to their economic damages or $1,000,000, whichever is greater.”

      Who could argue that receiving an award of non-economic damages equal to or less than your actual/economic damages is unfair? I think I am going to push this idea. Any supporters?

    • Johnny Givens

      Supremes granted Writ of Cert, held oral argument on the Cert, then reversed the grant of Cert thereby affirming the Court of Appeals.

      • RIP

        Johnny, when are you going to start your own firm…its about time.

  • Steve W. Mullins

    Caps were never about fairness, justice, business relocation, or anything of that nature, that all focus group induced spin. They are and have been about what everything is always about, “power and money.” The major corporate interest need to be able to put numbers on their decisions and know they can. Let me show you how it works. Make dangerous deadly product, oops it happens even with the best companies. Company should:

    A) contact CPSC or FDA inform them and start recall, (cost 500 million) I am openly mocking you if you think anyone has ever done this.

    B) wait for lawsuits and adverse reports to come in, then work with government agencies for recall etc (cost 500 million)

    C)calculate number likely killed (30) and injured (500) and then determine % likely to hire lawyers (less than 15%) and then percentage of those likely to have ability to go to trial (less than 20% of that number) number of verdicts add in caps etc (number will be under 100 million)

    If you can avoid serious negative publicity, and the CDC and CPSC are your Lap dogs then the choice is really easy isn’t it.