Nucor Corp. v. General Electric Co.

COMBS, Justice,

dissenting.

I respectfully dissent from so much of the majority opinion as disallows prejudgment interest. Supposing that the majority is correct in concluding that the issue was one properly addressed by the trial court as a matter of equity, I believe that the denial of any prejudgment interest in this case was patently inequitable, amounting to an abuse of judicial discretion.

Restatement (Second) of Torts § 913(1) Comment a (ante, p. 144) treats damages as essentially liquidated (by contradistinction) “if the sum due is sufficiently definite, so that the tortfeasor has reason to know the amount he should pay or its approximate amount_” (Emphasis added.) Even though a claim is not liquidated in the traditional sense of being ascertainable with absolute precision (which G.E. concedes to be the case here), a plaintiff is ordinarily entitled to interest nonetheless, *149if the amount of damages can be determined to a fair approximation.

While it is true that G.E.’s damages were not reduced to a sum certain until the jury returned its verdict, the losses were from the outset susceptible of reasonably accurate estimation. The measure of damages adopted by the trial court was the cost of repair of the warehouse, plus the difference in the fair market value of the damaged personal property immediately before and immediately after each roof collapse. This appropriate calculus, which is no longer challenged, was readily available in 1977, and, had it been applied then, would have yielded a reliable estimate of harm.

The fact is that all parties had or should have had a fairly accurate idea of the plaintiffs’ actual damages. The real bone of contention was the extent to which the defendants were liable for the damages resulting from the second roof collapse, considering G.E.’s alleged contributory negligence. Of course the outcome of a dispute over liability affects the recovery for damages. But is the existence of such a dispute germane to the evaluation of damages? Even if in equity it is, there was here no serious issue as to full liability for the first roof collapse, and no serious difficulty in estimating those damages separately.

In any event, like the court which decided Dalton v. Mullins, Ky., 293 S.W.2d 470 (1956) (ante, p. 143), I am less disturbed about whether the claim is liquidated or unliquidated than about whether justice and equity demand an allowance of interest to the injured party. In the present case, of the trial court’s stated reasons for denying prejudgment interest (ante, p. 144), most are wholly unconvincing, and none of the others support more than an adjustment of the amount of interest awarded. The plaintiffs did not discourage settlement by making exorbitant demands, nor unreasonably delay the filing or prosecution of this action.

On the other hand, the record makes clear that a substantial award of prejudgment interest is necessary if G.E. is to have the complete relief to which it is entitled. Under the court’s instructions, the jury calculated damages based upon 1977 values, i.e., values “immediately before and immediately after the two subject roof failures.” In effect, for the period of almost 10 years from the time of the harm until the date of judgment, the plaintiffs were wrongfully deprived of, while the defendants wrongfully enjoyed, the use of $734,058.69. Reasonable interest is an appropriate measure of the value of this use, and is in my view a remedy which justice and equity demand.