Mendelsohn v. Anderson

Dore, J.

(concurring in part; dissenting in part)—I would affirm the judgment on liability but remand the case to the *941trial court for a retrial on the issue of damages. It was prejudicial error for the trial judge to refuse appellants' instructions through which plaintiff's damages for future medical expenses and lost earning capacity would have been discounted to present cash value.

The appellants requested two instructions on this issue. Requested instruction No. 20 is quoted substantially in the majority opinion. Requested instruction No. 21,3 also refused and excepted to, was based on WPI 34.02, and is set out in the margin. Plaintiff argues that impaired earning capacity is a general damages item and not reducible to present cash value. Plaintiff asks us to distinguish such losses from lost wages, a special damages item which is reducible to present cash value.

We agree that wages lost are distinct from diminished earning capacity. The difference, however, is merely one of time.

[T]here are normally two components or aspects which should be considered in attempting to measure the detriment an injured plaintiff has sustained when by reason of the injury he is unable to continue earning his prior wages. The first and most obvious component is frequently called "lost time," "lost wages," or "lost earnings." That is, it is clear that if an injury renders a plaintiff temporarily unable to continue at a prior occupation for a given period, the plaintiff should be entitled to compensation for regular wages lost because of the disability. Secondly, when it becomes apparent that an injury was such that it occasioned a permanent disability, or permanent diminution of the ability to earn money, *942then the plaintiff should be entitled to compensation for what is generally called "impaired earning capacity."

Kubista v. Romaine, 14 Wn. App. 58, 62-63, 538 P.2d 812 (1975), aff'd, 87 Wn.2d 62, 549 P.2d 491 (1976). Lost wages, then, will usually involve an income loss suffered up to the time of trial; "diminished earning capacity" will usually be those losses suffered thereafter. The difference between these terms will not affect the rule that future losses must be discounted to their present cash value.

The majority holds that instruction No. 20 was properly refused because it "lacked any mention of a formula for determining present cash value, or any indication what interest rate to apply." If this was the fatal flaw, it would have been corrected by the WPI instruction, instruction No. 21. That instruction, when given in its entirety as appellants here had requested, provides the jury a basis upon which to determine present cash value. Bartlett v. Hantover, 84 Wn.2d 426, 432, 526 P.2d 1217 (1974).

The plaintiff testified that due to her injuries she was no longer able to work a full 40-hour week. She was forced, instead, to accept employment at 20 to 30 hours per week. Such reduction in her earning capacity may well have been considered by the jury. There was also substantial testimony concerning the probability of the plaintiff's incurring future medical expenses. The failure to instruct the jury to reduce to present cash value those damages attributable to impaired earning capacity and future medical expenses is reversible error. Wentz v. T.E. Connolly, Inc., 45 Wn.2d 127, 137, 273 P.2d 485 (1954) (case tried to court); Kellerher v. Porter, 29 Wn.2d 650, 673, 189 P.2d 223 (1948) (case tried to jury).

Finally, I strongly object to the majority's taking "judicial notice of the fact that inflation diminishes the value of money in an amount approximately equal to that which money, prudently invested, would earn." If the question of purchasing power of money is to be determined in a court *943of law,4 it is proper when placed in the province of the fact finder. Hinzman v. Palmanteer, 81 Wn.2d 327, 336, 501 P.2d 1228 (1972); Sadler v. Wagner, 5 Wn. App. 77, 85, 486 P.2d 330 (1971).

I would grant a new trial on the sole issue of damages and require that the jury be instructed on the discount factor as to damages awarded for future medical expenses and diminished earning capacity.

Reconsideration denied September 18, 1980.

"Present cash value' as used in these instructions means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the loss at the time in the future when the expenses must be paid or the earnings would have been received.

"The rate of interest to be applied by you in making this determination would be that rate which in your judgment is reasonable under all the circumstances taking into consideration the prevailing rates of interest in the area which can reasonably be expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, can make in this locality."

At least one court has rejected the rule of discounting future losses to present cash value in an effort to recognize modern economic realities. Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967). See also S. Speiser, Recovery for Wrongful Death § 3.4, at 35 et seq. (1970).