John N. Kenney v. Samuel C. Liston

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term
_______________ FILED
June 4, 2014
released at 3:00 p.m.
No. 13-0427 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

JOHN N. KENNEY,
Defendant Below, Petitioner

v.

SAMUEL C. LISTON,
Plaintiff Below, Respondent

____________________________________________________________

Appeal from the Circuit Court of Monongalia County
The Honorable Susan B. Tucker, Judge
Civil Action No. 11-C-102

AFFIRMED
____________________________________________________________

Submitted: April 9, 2014
Filed: June 4, 2014

Tiffany R. Durst, Esq. J. Bryan Edwards, Esq.
Nathaniel D. Griffith, Esq. Paul R. Cranston, Esq.
Pullin, Fowler, Flanagan, Cranston & Edwards, PLLC
Brown & Poe, PLLC Morgantown, West Virginia
Morgantown, West Virginia Counsel for the Respondent
Counsel for the Petitioner

James G. Bordas, Esq.
Scott S. Blass, Esq.
Bordas & Bordas, PLLC
Wheeling, West Virginia
Chad S. Lovejoy, Esq.
Duffield, Lovejoy, Stemple & Boggs, PLLC
Huntington, West Virginia
Counsel for Amicus Curiae
West Virginia Association for Justice

JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.

JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.
 SYLLABUS BY THE COURT

1. “The collateral source rule excludes payments from other sources to

plaintiffs from being used to reduce damage awards imposed upon culpable defendants.”

Syllabus Point 11, Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983).

2. The collateral source rule protects payments made to or benefits

conferred upon an injured party from sources other than the tortfeasor by denying the

tortfeasor any corresponding offset or credit against the injured party’s damages. Even

though these collateral sources mitigate the injured party’s loss, they do not reduce the

tortfeasor’s liability.

3. “The collateral source rule normally operates to preclude the

offsetting of payments made by health and accident insurance companies or other

collateral sources as against the damages claimed by the injured party.” Syllabus Point 7,

Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).

4. The rule that collateral source benefits are not subtracted from a

plaintiff’s recovery applies to proceeds or benefits from sources such as insurance

policies, whether maintained by the plaintiff or a third party; employment benefits;

services or benefits rendered gratuitously (whether free, discounted, or later written off);

and social legislation benefits. The law does not differentiate between the nature of these

collateral source benefits, so long as they did not come from the defendant or a person

acting for the defendant.

i
 5. “An injured person is entitled to recover damages for reasonable and

necessary nursing services rendered to him, whether such services are rendered

gratuitously or paid for by another.” Syllabus Point 5, Kretzer v. Moses Pontiac Sales,

Inc., 157 W.Va. 600, 201 S.E.2d 275 (1973).

6. A person who has been injured by the tortious conduct of a culpable

tortfeasor is entitled to recover from the tortfeasor the reasonable value of medical and

nursing services necessarily required by the injury. This recovery is for the reasonable

value of the services and not for the expenditures actually made or obligations incurred.

7. Where an injured person’s health care provider agrees to reduce,

discount or write off a portion of the person’s medical bill, the collateral source rule

permits the person to recover the entire reasonable value of the medical services

necessarily required by the injury. The tortfeasor is not entitled to receive the benefit of

the reduced, discounted or written-off amount.

8. “The formulation of jury instructions is within the broad discretion

of a circuit court, and a circuit court’s giving of an instruction is reviewed under an abuse

of discretion standard. A verdict should not be disturbed based on the formulation of the

language of the jury instructions so long as the instructions given as a whole are accurate

and fair to both parties.” Syllabus Point 6, Tennant v. Marion Health Care Foundation,

Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995)

ii
Justice Ketchum:

In this appeal from the Circuit Court of Monongalia County, we are asked

to examine a jury’s award of compensatory and punitive damages in a car wreck caused

by a drunk driver. The driver – the defendant – caused serious injuries to the plaintiff.

The defendant’s appeal challenges the collateral source rule. The

defendant’s appeal also asserts that the circuit court erred in allowing certain evidence at

trial and in giving a limiting instruction pertaining to the defendant’s assets in the

punitive damage phase of the trial.

After careful consideration of the record, oral argument, and the briefs of

the parties and amicus curiae,1 we affirm the jury’s award of compensatory and punitive

damages.

I.
FACTUAL AND PROCEDURAL BACKGROUND

On April 6, 2010, plaintiff Samuel C. Liston was a passenger in a vehicle

sitting at a stoplight. Defendant John N. Kenney slammed his car into the rear end of the

plaintiff’s vehicle. The defendant did not brake before the collision, and the force of the

impact broke the seat in which the plaintiff was sitting. The defendant had previously

consumed a number of alcoholic beverages, and an hour after the collision his blood

1
The Court acknowledges and wishes to express appreciation for the
excellent amicus curiae brief submitted by the West Virginia Association for Justice.

1
alcohol was measured at .328, over four times the legal limit. He later pleaded no contest

to first-offense driving under the influence.

The plaintiff suffered serious, permanent, painful injuries to his spine in the

collision, and brought suit against the defendant for his injuries. The defendant admitted

that he was solely liable for the collision, and the case was bifurcated into a two-phase

damages trial. The first phase was to determine the amount of the plaintiff’s

compensatory damages; the second phase was to determine whether and to what extent

the defendant should pay punitive damages.

As a result of the collision, the plaintiff incurred medical bills in excess of

$70,000.00. West Virginia law permits a plaintiff to recover the necessary and

reasonable medical expenses for an injury from a tortfeasor. Proof that a medical bill was

incurred is prima facie evidence the expense was necessary and reasonable.2 The

plaintiff therefore sought to recover the entire billed amount as his necessary and

reasonable medical expenses.

Prior to trial, the defendant filed a motion in limine and asserted that only a

portion of each medical bill had been paid, either by the plaintiff (as co-pays or

deductibles) or by the plaintiff’s health insurance carrier (Blue Cross/Blue Shield). By an

agreement between the plaintiff’s medical providers and his health insurance carrier, the

medical bills were discounted, reduced, or adjusted downward. Because of the

2
See W.Va. Code § 57-5-4j [1981] (“Proof that medical, hospital and doctor
bills were paid or incurred because of any illness, disease, or injury shall be prima facie
evidence that such bills so paid or incurred were necessary and reasonable.”).

2
agreement with the health insurance carrier, the remaining, unpaid portions of the

medical bills were “written off” by the plaintiff’s medical providers.

The defendant asserted that the plaintiff’s damages “should be limited to

the amounts actually paid by Plaintiff . . . and amounts paid on Plaintiff’s behalf by any

collateral source,” such as the plaintiff’s health insurance carrier. The defendant argued

to the circuit court that the value of the medical bills before reduction was not paid by

either the plaintiff or his health insurance carrier. Further, because of health insurance,

the value of the medical bills was not an obligation that the plaintiff was expected to pay.

The defendant contends that since the full bills were neither paid nor actually incurred by

the plaintiff or the plaintiff’s health insurance carrier, the plaintiff should not be allowed

to introduce evidence of those written-off amounts at trial.

The circuit court denied the defendant’s motion in limine because the

discounts or write-offs were a collateral source to the plaintiff. The circuit court reasoned

that under the collateral source rule, the plaintiff was entitled to recover damages for the

value of any reasonable and necessary medical services he received, “whether such

services are rendered gratuitously or paid for by another.”3 Further, the circuit court

noted that the plaintiff was entitled to recover the value of medical services rendered to

the plaintiff irrespective of “the expenditures actually made or obligations incurred.”4

3
Syllabus Point 5, Kretzer v. Moses Pontiac Sales, Inc., 157 W.Va. 600,
201 S.E.2d 275 (1973).
4
Kretzer, 157 W.Va. at 610, 201 S.E.2d at 281.

3
Because of the collateral source rule, and because the evidence would tend to be

misleading and prejudicial, the circuit court prevented the defendant from offering any

evidence that the bills for the plaintiff’s medical services were either reduced by the

provider or paid by the health insurer at a discounted rate.

On September 21, 2012, the jury returned a verdict in the first phase of the

bifurcated trial. The jury awarded the plaintiff compensatory damages totaling

$325,272.92. The verdict included $74,061.00 for the plaintiff’s past medical expenses,

an amount almost equal to the total amount of the plaintiff’s medical bills.5

After receiving the jury’s compensatory damage verdict, the circuit court

held a punitive damage trial. Counsel for the defense told the jury in opening statement

that the defendant was impoverished and unable to pay any punitive damage verdict.

During plaintiff’s direct examination of the defendant, plaintiff’s counsel properly

countered the defense’s opening remarks by eliciting testimony from the defendant that

he had liability insurance. On cross examination, defense counsel prompted the

defendant to testify that he only had $100,000.00 in liability insurance. In response, and

over an objection by defense counsel, plaintiff’s counsel extracted a statement from the

defendant that he knew his liability insurer might be required to pay the jury’s entire

verdict, even if it exceeded the defendant’s $100,000.00 liability limits. The circuit court

thereafter instructed the jury that additional liability insurance “may or may not” be

5
At trial, the plaintiff introduced medical bills totaling $76,313.49, but it
appears that the jury declined to award the plaintiff compensation for $2,252.00 in bills
from a chiropractor.

4
available to pay the verdict. The jury returned a punitive damage verdict against the

defendant for $300,000.00.

The circuit court entered a judgment order on the jury’s verdict on October

9, 2012. The defendant filed a motion for a new trial. The circuit court denied that

motion on February 26, 2013.

The defendant now appeals and asks that we vacate the circuit court’s

judgment order in its entirety and grant the parties a new trial. In the alternative, the

defendant requests that we grant the parties a new trial solely on the issue of punitive

damages.

II.
STANDARD OF REVIEW

The defendant appeals the circuit court’s ruling denying his motion for a

new trial. “As a general proposition, we review a circuit court’s rulings on a motion for a

new trial under an abuse of discretion standard.”6

Although the ruling of a trial court in granting or
denying a motion for a new trial is entitled to great respect
and weight, the trial court’s ruling will be reversed on appeal
[only] when it is clear that the trial court has acted under
some misapprehension of the law or the evidence.7

6
Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459
S.E.2d 374, 381 (1995).
7
Syllabus Point 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225
S.E.2d 218 (1976). See also, In re State Pub. Bldg. Asbestos Litig., 193 W.Va. 119, 124,
454 S.E.2d 413, 418 (1994) (quoting 11 Charles Alan Wright and Arthur R. Miller,
Federal Practice and Procedure § 2818 at 118 (1973) (“There are few subjects in the
(continued . . .)
5
 III.
ANALYSIS

The defendant raises two issues of consequence.

First, the defendant argues the trial court erred in applying the collateral

source rule to exclude evidence, testimony and argument relating to medical expenses

that were discounted or written off by the plaintiff’s medical providers. The defendant

asserts he is not challenging the collateral source rule; he says he merely seeks to

introduce evidence of what the plaintiff’s insurer actually paid the providers as evidence

of the reasonable value of the medical services.

Second, the defendant argues that the trial court erred in the punitive

damage phase by allowing the jury to hear plaintiff’s counsel’s questions suggesting that

additional coverage may be available to the defendant to pay the jury’s excess verdict.

Further, the defendant contends it was error for the trial court to instruct the jury that

excess liability insurance coverage might be available.

A. Collateral Source Rule

We begin with the question of whether those portions of the plaintiff’s

medical bills that were discounted or written off can be submitted to the jury. The

defendant does not dispute that the collateral source rule protects the portions of the

entire field of procedure that have been subject to so much change and controversy in
recent years as the proper scope of review of an order granting or denying a motion for a
new trial. The trial court has very broad discretion and the appellate courts will defer a
great deal to his exercise of this discretion. This much is settled.”).

6
plaintiff’s medical bills that his health insurer actually paid and that the plaintiff’s health-

care providers accepted as payment in full. Further, the defendant concedes that the

plaintiff is entitled to recover the reasonable value of the medical services that were

necessary and caused by the defendant’s misconduct.

The question presented concerns how to calculate the “reasonable value” of

the plaintiff’s medical services in light of the collateral source rule. The defendant argues

that the collateral source rule does not apply to the difference in value between the

amount billed and the amount paid. The plaintiff responds that the collateral source rule

protects the entire amount initially billed, so long as it was necessary and reasonable,

because any discounts or written-off amounts were as a result of a collateral source: the

plaintiff’s health insurance. In addition, the plaintiff argues that W.Va. Code § 57-5-4j

provides that the medical bills that he incurred are prima facie evidence that the amounts

billed were necessary and reasonable.8

The collateral source rule is a long-standing principle in West Virginia law

and has been “a staple of American tort law since before the Civil War.”9 “The collateral

source rule excludes payments from other sources to plaintiffs from being used to reduce

8
See supra, footnote 2.
9
Michael I. Krauss & Jeremy Kidd, Collateral Source and Tort’s Soul, 48
U. Louisville L. Rev. 1, 4 (2009). The collateral source rule first appeared in America in
The Propeller Monticello v. Mollison, 58 U.S. 152 (1854). The term “collateral source”
derives from language used in 1870, in Harding v. Town of Townshend, 43 Vt. 536, 538
(1870) (“The policy of insurance is collateral to the remedy against the defendant, and
was procured solely by the plaintiff and at his expense, and to the procurement of which
the defendant was in no way contributory.”).

7
damage awards imposed upon culpable defendants.”10 The collateral source rule protects

payments made to or benefits conferred upon an injured party from sources other than the

tortfeasor by denying the tortfeasor any corresponding offset or credit against the injured

party’s damages. Even though these collateral sources mitigate the injured party’s loss,

they do not reduce the tortfeasor’s liability.11 The collateral source rule “operates to

preclude the offsetting of payments made by health and accident insurance companies or

other collateral sources as against the damages claimed by the injured party.”12

The law is clear that, “A tort victim who has incurred medical expenses,

suffered lost wages, or experienced other compensable loss, may sue the tortfeasor for the

entire amount of the victim’s injuries even if those losses have been neutralized by first-

party insurance, by the victim’s relatives, by the victim’s employer, or through the

10
Syllabus Point 11, Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307
S.E.2d 603 (1983).
11
Restatement (Second) of Torts § 920A (1979) gives the following effect
to payments made to an injured party:

(1) A payment made by a tortfeasor or by a person
acting for him to a person whom he has injured is credited
against his tort liability, as are payments made by another
who is, or believes he is, subject to the same tort liability.

(2) Payments made to or benefits conferred on the
injured party from other sources are not credited against the
tortfeasor’s liability, although they cover all or a part of the
harm for which the tortfeasor is liable.
12
Syllabus Point 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584
(1981).

8
kindness of strangers.”13 A tortfeasor cannot take advantage of a contract or relationship

“between an injured party and a third person, no matter whether the source of the funds

received is an insurance company, an employer, a family member, or other source.”14 As

the Restatement (Second) of Torts notes,

[Benefits from collateral sources] do not have the effect of
reducing the recovery against the defendant. The injured
party’s net loss may have been reduced correspondingly, and
to the extent that the defendant is required to pay the total
amount there may be a double compensation for a part of the
plaintiff’s injury. But it is the position of the law that a
benefit that is directed to the injured party should not be
shifted so as to become a windfall for the tortfeasor.15

Stated succinctly, a person who is negligent and injures another “owes to the latter full

compensation for the injury inflicted[,] . . . and payment for such injury from a collateral

source in no way relieves the wrongdoer of [the] obligation.”16

The collateral source rule is both a rule of evidence and a rule of damages.

“As a rule of evidence, [the collateral source rule] precludes the defendant

in a personal injury or wrongful death case from introducing evidence that some of the

13
Krauss & Kidd, 48 U. Louisville L. Rev. at 11. See also, Pack v. Van
Meter, 177 W.Va. 485, 488, 354 S.E.2d 581, 584 (1986) (“Our law is quite clear that the
amount of money that an injured plaintiff receives from a collateral source is not
admissible.”).
14
Covington v. George, 359 S.C. 100, 103-04, 597 S.E.2d 142, 144 (2004)
(citation omitted).
15
Restatement (Second) of Torts § 920A, cmt. b (emphasis added).
16
Walthew v. Davis, Adm’r, 201 Va. 557, 563, 111 S.E.2d 784, 788 (1960).

9
plaintiff’s damages have been paid by a collateral source.”17 Because the likelihood of

misuse by the jury clearly outweighs the probative value of evidence of collateral

benefits,18 the “induction of collateral sources into the jury’s consciousness for whatever

purpose is to be avoided.”19 The theory is “that the jury may well reduce the damages

based on the amounts that the plaintiff has been shown to have received from collateral

sources.”20 For example, “[c]alling attention to the fact that a plaintiff had

[hospitalization or medical] insurance can be prejudicial error because the jury may

17
James L. Branton, The Collateral Source Rule, 18 St. Mary’s L.J. 883
(1987). See also, Michael Flynn, Private Medical Insurance and The Collateral Source
Rule: A Good Bet?, 22 Toledo L.Rev. 39, 42 (1990) (“As to evidence, it bars the
submission of evidence that the injured plaintiff received payment for any part of his
damages, including medical expenses, from other sources.”)
18
Eichel v. New York Cent. R. Co., 375 U.S. 253, 255 (1963) (“In our view
the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar
as the evidence bears on the issue of malingering, there will generally be other evidence
having more probative value and involving less likelihood of prejudice than the receipt of
a disability pension.”); Hrnjak v. Graymar, Inc., 4 Cal. 3d 725, 732, 484 P.2d 599, 604
(1971) (“The potentially prejudicial impact of evidence that a personal injury plaintiff
received collateral insurance payments varies little from case to case.”).
19
Ilosky v. Michelin Tire Corp., 172 W.Va. at 447, 307 S.E.2d at 615.
20
Ratlief v. Yokum, 167 W.Va. at 787, 280 S.E.2d at 590. See also James
M. Fischer, Understanding Remedies § 12(a), at 77 (1999) (“The evidentiary component
bars admission of evidence of the existence of the collateral source or the receipt of
benefits. The concern here is that the trier of fact may use that evidence improperly to
deny the plaintiff the full recovery to which he is entitled.”); Proctor v. Castelletti, 112
Nev. 88, 90, 911 P.2d 853, 854 (1996) (adopting a per se rule barring admission of
collateral source payments into evidence for any purpose; “Collateral source evidence
inevitably prejudices the jury because it greatly increases the likelihood that a jury will
reduce a plaintiff’s award of damages because it knows the plaintiff is already receiving
compensation.”).

10
conclude that plaintiff sustained no damages for which he was entitled to recover if his

medical bills were paid by insurance.”21

As a rule of damages, the collateral source rule “precludes the defendant

from offsetting the judgment against any receipt of collateral sources by the plaintiff.”22

The “rationale for this rule is that the party at fault should not be able to minimize his

damages by offsetting payments received by the injured party through his own

independent arrangements”23 “[T]he wrongdoer should not benefit from the expenditures

made by the injured party or take advantage of contracts or other relations that may exist

between the injured party and third persons.”24

The drafters of the Restatement (Second) of Torts recognized that there are

four general categories of collateral benefits that should never be subtracted from the

plaintiff’s recovery.25 Those four categories are:

21
Biehler v. White Metal Rolling & Stamping Corp., 30 Ill.App.3d 435,
444, 333 N.E.2d 716, 723 (1975).
22
Branton, 18 St. Mary’s L.J. at 883. See also, Ilosky v. Michelin Tire
Corp., 172 W.Va. at 446, 307 S.E.2d at 615 (“the collateral source rule excludes
payments from other sources to plaintiffs from being used to reduce damage awards
imposed upon culpable defendants.”); Flynn, 22 Toledo L. Rev. at 42 (“As to damage
calculations, the Rule prohibits the tortfeasor from reducing payment of a tort judgment
by the amount of money received by an injured party from other sources.”).
23
Ratlief v. Yokum, 167 W.Va. at 787, 280 S.E.2d at 590.
24
Wilson v. Hoffman Grp., Inc., 131 Ill.2d 308, 320, 546 N.E.2d 524, 530
(1989).
25
This list is not absolute. The drafters also said about collateral sources,
“The law does not differentiate between the nature of the benefits, so long as they did not
(continued . . .)
11
 (1) Insurance policies, whether maintained by the
plaintiff or a third party. Sometimes, as in fire insurance or
collision automobile insurance, the insurance company is
subrogated to the rights of the third party. This additional
reason for keeping the tortfeasor’s liability alive is not
necessary, however, as the rule applies to insurance not
involving subrogation, such as life or health policies.26

(2) Employment benefits. These may be gratuitous, as
in the case in which the employer, although not legally
required to do so, continues to pay the employee’s wages
during his incapacity. They may also be benefits arising out
of the employment contract or a union contract. They may be
benefits arising by statute, as in worker’s compensation acts
or the Federal Employers’ Liability Act. Statutes may
subrogate the employer to the right of the employee, or create
a cause of action other than by subrogation.

(3) Gratuities. This applies to cash gratuities and to
the rendering of services. Thus the fact that the doctor did not
charge for his services or the plaintiff was treated in a
veterans hospital does not prevent his recovery for the
reasonable value of the services.

(4) Social legislation benefits. Social security benefits,
welfare payments, pensions under special retirement acts, all
are subject to the collateral-source rule.27

Examples of collateral sources that are inadmissible to reduce a defendant’s

liability, in both our jurisprudence and that of other states, are legion. Benefits to a

come from the defendant or a person acting for him.” Restatement (Second) of Torts §
920A, cmt. b.
26
See also, Richard C. Maxwell, The Collateral Source Rule in the
American Law of Damages, 46 Minn. L. Rev. 669, 672 (1962) (“Typically, the insurance
cases make no distinction in relation to the type of insurance involved nor do they usually
rest upon a stated conclusion that double recovery is avoided because the insurer is
subrogated to the rights of the insured.”).
27
Restatement (Second) of Torts § 920A, cmt. c (footnotes added).

12
plaintiff protected by the collateral source rule come from sources as diverse as life

insurance,28 health insurance,29 accident insurance,30 workers’ compensation,31 sick pay,32

28
Brabham v. Baltimore & O.R. Co., 220 F. 35, 37-38 (4th Cir. 1914)
(“When an action is brought against a wrongdoer, he is not entitled to have the damages
consequent upon the commission of his wrongful act reduced by proving that the plaintiff
has received compensation for the loss from a collateral source wholly independent of
himself. . . . [T]he court below erred in permitting the defendant to prove that the mother
of the decedent received the sum of $2,500 [life] insurance on account of the death of her
son.”).
29
Syllabus Point 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584
(1981) (“The collateral source rule normally operates to preclude the offsetting of
payments made by health and accident insurance companies or other collateral sources as
against the damages claimed by the injured party.”).
30
Id. See also, Syllabus Point 4, Johnson by Johnson v. General Motors
Corp., 190 W.Va. 236, 438 S.E.2d 28 (1993) (“The collateral source rule operates to
preclude the offsetting of uninsured or underinsured benefits since the benefits are the
result of a contractual arrangement which is independent of the tortfeasor[.]”).
31
Syllabus Point 3, Mercer v. Ott, 78 W.Va. 629, 89 S.E. 952 (1916)
(“Where a workman is killed by an accident arising in the course of and resulting from
his employment, and a tort-feasor other than his employer is responsible therefor, the
right to compensation from the workmen’s compensation fund by a dependent of the
deceased is not lost by a recovery of damages against the tort-feasor, by the personal
representative of the deceased.”); Syllabus Point 6, Merrill v. Marietta Torpedo Co., 79
W.Va. 669, 92 S.E. 112 (1917) (“An employé who receives compensation for an injury
from the workmen’s compensation fund is not thereby estopped to sue a third person, not
his employer, whose negligence caused his injury.”); Syllabus Point 3, Jones v.
Appalachian Elec. Power Co., 145 W.Va. 478, 115 S.E.2d 129 (1960) (“The amount of
compensation received for injury or death from the Workmen’s Compensation Fund is
not a proper subject for a remittitur in an action by the injured person, or the
administrator of his estate in case of death, against a third party responsible for his injury
or death.”); Syllabus Point 3, Jones v. Laird Found., Inc., 156 W.Va. 479, 195 S.E.2d 821
(1973) (“Workmen’s Compensation benefits for an original work related injury and for
aggravation of an original injury, or for a care in selecting a physician and treatment
administered for a work related injury, are within the ‘Collateral Source Rule’ in the
same way as accident insurance, health insurance and life insurance, and, therefore,
benefits from Workmen’s Compensation cannot be applied to reduce damages in an
(continued . . .)
13
vacation pay,33 gratuitous nursing care by a relative,34 charity,35 remarriage,36 disability

insurance,37 veteran’s and military hospitals,38 tax savings,39 private or government

action against a successive tort-feasor such as a physician or hospital for injury caused by
negligent or unskillful treatment of a compensable injury.”).
32
Syllabus Point 4, Ellard v. Harvey, 159 W.Va. 871, 231 S.E.2d 339
(1976) (“One claiming damages for loss of wages is not barred from recovering on the
claim merely because he was paid in accordance with a sick leave policy or similar plan
while away from work.”); Syllabus Point 3, King v. Bittinger, 160 W.Va. 129, 231 S.E.2d
239 (1976) (same).
33
Ellard v. Harvey, 159 W.Va. at 879, 231 S.E.2d at 344 (“[A]n injured
party may recover damages for lost leave, whether accumulated sick time or vacation
time, for which he is paid by the employer[.]”).
34
Syllabus Point 5, Kretzer v. Moses Pontiac Sales, Inc., 157 W.Va. 600,
201 S.E.2d 275 (1973) (plaintiff’s unmarried daughter, who had always lived with the
plaintiff, quit her job after the accident in order to care for her injured mother; “An
injured person is entitled to recover damages for reasonable and necessary nursing
services rendered to him, whether such services are rendered gratuitously or paid for by
another.”).
35
See, e.g., Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173 (Tex. App.
2012) (although indigent plaintiff qualified for healthcare charity program and received
medical services free of charge, reasonable medical expense was “incurred” and could be
recovered from defendant under collateral source rule).
36
Syllabus Point 6, Dimmey v. Wheeling & E.G. Railroad Co., 27 W.Va. 32
(1885) (“Where the husband as administrator of his deceased wife brought an action to
recover damages of a street railroad company for causing her death, and he was on trial
examined as a witness on his own behalf, it was improper on cross examination to ask
him: ‘Are you not engaged to be married again.’”); Syllabus Point 4, Addair v. Bryant,
168 W.Va. 306, 284 S.E.2d 374 (1981) (“Evidence of the remarriage of a surviving
spouse, or the possibility of such remarriage, ordinarily is not admissible to mitigate
damages in a wrongful death action.”); Syllabus Point 9, Keesee v. General Refuse
Service, Inc., 216 W.Va. 199, 604 S.E.2d 449 (2004) (same). But see William C. Harvin,
The Collateral Source Rule – Abandonment or Modification, 10 Judges J. 28, 29 (April
1971) (advocating allowing evidence of remarriage because “the jury in appraising the
loss does not know that there is a new spouse whose earnings will supplant those which
(continued . . .)
14
pension programs such as Social Security,40 or other government programs like

Medicare41 and Medicaid.42 The cases from this jurisdiction and others are clear: “Only

have been lost. A jury should not be misled into believing that the ‘light of her life’ has
gone out and will remain forever extinguished, when in fact she has already struck
another match.”).
37
Hrnjak v. Graymar, Inc., 4 Cal.3d at 733, 484 P.2d at 604-05 (evidence a
plaintiff “demonstrated the prudence to purchase disability insurance coverage”
inadmissible to show plaintiff is a malingerer).
38
Sainsbury v. Pennsylvania Greyhound Lines, 183 F.2d 548, 550 (4th Cir.
1950) (plaintiff received free care at the Marine and Naval Hospital; “It is generally well
settled that the fact that the plaintiff may receive compensation from a collateral source
(or free medical care) is no defense to an action for damages against the person causing
the injury.”); Plank v. Summers, 203 Md. 552, 562, 102 A.2d 262, 267 (1954) (the value
of medical and hospital services furnished gratuitously by a naval hospital to plaintiffs as
members of the United States Navy were proper items for the jury’s consideration in
determining the amount of damages to be paid by defendants); Hudson v. Lazarus, 217
F.2d 344, 347 (D.C. Cir. 1954) (“We see no reason to distinguish services rendered by a
naval hospital to the veteran Hudson from services rendered by a naval hospital to a man
still in the Navy.”); Banks v. Crowner, 694 P.2d 101, 105 (Wyo. 1985) (“hospital bills
from the Veteran’s Administration (V.A.) were properly submitted to the jury for
consideration”).
39
See Michael I. Krauss & Robert A. Levy, Calculating Tort Damages for
Lost Future Earnings: The Puzzles of Tax, Inflation and Risk, 31 Gonz. L. Rev. 325, 335
(1996) (stating that personal injury elements of tort awards are nontaxable).
40
Moyer v. Merrick, 155 Colo. 73, 80, 392 P.2d 653, 657 (1964) (“courts
have almost uniformly held that evidence of receipt by plaintiff of a public or private
pension cannot be admitted into evidence. It is not in mitigation of damage so has no
place in the trial of a case.”); Nigra v. Walsh, 797 A.2d 353, 355 (Pa. Super. Ct. 2002)
(trial court erred and violated collateral source rule in permitting defendant to present
evidence plaintiff was receiving social security disability benefits). See generally, H.G.
Hirschberg, Collateral Source Rule: Receipt of Public or Private Pension as Affecting
Recovery Against a Tortfeasor, 75 A.L.R.2d 885 (1961).
41
Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 682-83 (Ky.
2005) (“It is improper to reduce a plaintiff’s damages by payments for medical treatment
(continued . . .)
15
benefits received from the original tortfeasor, the tortfeasor’s agent, or a joint tortfeasor

reduce a tort defendant’s liability.”43

We turn now to the specific question at hand: does the collateral source rule

protect the amounts discounted from the plaintiff’s medical bill or written off by the

medical provider? We hold that it does, because the amount of the medical expense that

was discounted or written off can be considered both a benefit of the plaintiff’s bargain

under a health insurance policy if the premiums were paid by the plaintiff or a third party
other than the tortfeasor. . . . Medicare benefits are governed by the collateral source rule
and are treated the same as other types of medical insurance.”); Brown v. Van Noy, 879
S.W.2d 667, 676 (Mo.Ct.App. 1994) (plaintiff permitted to admit evidence of medical
expense paid or “written off” as part of Medicare coverage because it “is not materially
different than expenses paid by insurance or paid in part by insurance with part ‘written
off’ pursuant to a contract or agreement between the medical provider and the insurance
company”). See also, William C. Harvin, The Collateral Source Rule – Abandonment or
Modification, 10 Judges J. 28 (April 1971) (“With the rise of the welfare state, the
plaintiff has a veritable arsenal of governmentally supported programs to assure
minimum standards of care and comfort – the Veterans Administration, Medicare, social
security, state unemployment and disability plans, and various other statutory benefits.
Virtually all of these payments and services are inadmissible for mitigation purposes.”).
42
Loncar v. Gray, 28 P.3d 928, 933 (Alaska 2001) (“The collateral source
rule ‘exclud[es] evidence of other compensation on the theory that such evidence would
affect the jury’s judgment unfavorably to the plaintiff on the issues of liability and
damages.’ Under this rule, the superior court appropriately excluded Medicaid evidence
at the beginning of the trial.”); Wills v. Foster, 229 Ill.2d 393, 418-19, 892 N.E.2d 1018,
1033 (2008) (Where plaintiff was a recipient of Medicaid and Medicare, “the fact that the
collateral source was the government instead of a private insurance company is a
distinction without a difference. All plaintiffs are entitled to seek to recover the full
reasonable value of their medical expenses.”); Bynum v. Magno, 106 Haw. 81, 89, 101
P.3d 1149, 1157 (2004) (“Inasmuch as Medicare/Medicaid are social legislation
programs, we conclude that the collateral source rule applies to prevent the reduction of a
plaintiff’s award of damages to the discounted amount paid by Medicare/Medicaid.”).
43
Krauss & Kidd, 48 U. Louisville L. Rev. at 11.

16
with his health insurance carrier, and a gratuitous benefit arising from the plaintiff’s

bargain with the medical provider. “A creditor’s forgiveness of debt — that is what a

write-down in the present context amounts to — is often considered equivalent to

payment in other contexts, e.g., income tax, credit bids at foreclosure, etc. In other

words, a creditor’s partial forgiveness of a tort victim’s medical bills via a write-down is

properly considered a third-party ‘payment,’ evidence of which is barred by the collateral

source rule.”44 It has been said,

The general rule is that a plaintiff who has been injured by the
tortious conduct of the defendant is entitled to recover the
reasonable value of medical and nursing services reasonably
required by the injury. This is a recovery for their value and
not the expenditures actually made or obligations incurred.45

A majority of jurisdictions that have considered this question hold that a

plaintiff can present to the jury the amount that a health care provider initially billed for

the services necessarily rendered, and not merely amounts that were later paid.46 The

44
McConnell v. Wal-Mart Stores, Inc., ___ F.Supp.2d ___, ___, 2014 WL
464799 *4 (D. Nev. Feb. 5, 2014).
45
Bynum v. Magno, 106 Haw. at 90, 101 P.3d at 1158.
46
See Swanson v. Brewster, 784 N.W.2d 264, 277 (Minn. 2010); Aumand v.
Dartmouth Hitchcock Medical Center, 611 F.Supp.2d 78, 91-92 (D.N.H. 2009); White v.
Jubitz Corp., 347 Or. 212, 219 P.3d 566, 583 (2009); Tucker v. Volunteers of America
Co. Branch, 211 P.3d 708, 712-13 (Colo.App. 2008); Wills v. Foster, 229 Ill.2d 393, 415-
418, 892 N.E.2d 1018, 1032-33 (2008); Papke v. Harbert, 738 N.W.2d 510, 535-36 (S.D.
2007); Leitinger v. DBart, Inc., 302 Wis.2d 110, 136, 736 N.W.2d 1, 14 (2007); Pipkins
v. TA Operating Corp., 466 F.Supp.2d 1255, 1261–62 (D.N.M. 2006); Arthur v. Catour,
216 Ill.2d 72, 83, 833 N.E.2d 847, 854 (2005); Lopez v. Safeway Stores, Inc., 212 Ariz.
198, 129 P.3d 487, 496 (Ariz.Ct.App. 2006); Baptist Healthcare Systems, Inc. v. Miller,
177 S.W.3d 676, 683–84 (Ky. 2005); Mitchell v. Haldar, 883 A.2d 32, 40 (Del. 2005);
(continued . . .)
17
tortfeasor cannot offer evidence that part of the bill was discounted or written off.

Further, the plaintiff is not limited to recovering only expenditures made or obligations

actually incurred. The plaintiff may recover the full amount of his or her reasonable and

necessary medical expenses, even if those expenses were later discounted and a portion

written off by the health care provider. Regardless of how, or even whether, the

plaintiff’s obligation to the medical provider was later discharged, the plaintiff became

liable for the bills when the services were received; the plaintiff is therefore entitled to

recover the value of the services. “The damage is sustained when the plaintiff incurs the

liability, and the method by which that liability is later discharged has no effect on the

measure of damages.”47

The defendant argues that the collateral source rule operates solely to

protect “payments.” He argues that a discount, reduction or write-off of a bill by a

creditor is not a payment, and is therefore not encompassed by the collateral source rule.

We reject this tenuous distinction, because the law is clear that the collateral source rule

Bynum v. Magno, 101 P.3d at 1157; Covington v. George, 359 S.C. at 103-05, 597 S.E.2d
at 144-45; Calva-Cerqueira v. United States, 281 F.Supp.2d 279, 295-96 (D.D.C. 2003);
Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611, 618 (Miss. 2001) (and Wal-Mart
Stores, Inc. v. Frierson, 818 So.2d 1135, 1140 (Miss. 2002)); Koffman v. Leichtfuss, 246
Wis.2d 31, 48-49, 630 N.W.2d 201, 210 (2001); Olariu v. Marrero, 248 Ga.App. 824,
825, 549 S.E.2d 121, 123 (2001); Acuar v. Letourneau, 260 Va. 180, 192, 531 S.E.2d
316, 322 (Va. 2000); Montgomery Ward & Co., Inc. v. Anderson, 334 Ark. 561, 567-68,
976 S.W.2d 382, 385 (1998); Texarkana Memorial Hosp., Inc. v. Murdock, 903 S.W.2d
868, 874 (Tex.App. 1995), rev’d on other grounds 946 S.W.2d 836 (Tex.1997); Brown v.
Van Noy, 879 S.W.2d 667, 676 (Mo.Ct.App. 1994).
47
Lewis R. Mills, Note: The Collateral Source Doctrine in Missouri, 1953
Wash.U.L.Q. 453, 461 (1953).

18
applies to any benefit received by a plaintiff from any source in line with the plaintiff’s

interests.

The public policies behind the collateral source rule are wide ranging. For

one, “it is better for injured plaintiffs to receive the benefit of collateral sources in

addition to actual damages than for defendants to be able to limit their liability for

damages merely by the fortuitous presence of these sources.”48 The Supreme Court of

Virginia has said:

The collateral source rule is designed to strike a
balance between two competing principles of tort law: (1) a
plaintiff is entitled to compensation sufficient to make him
whole, but no more; and (2) a defendant is liable for all
damages that proximately result from his wrong. A plaintiff
who receives a double recovery for a single tort enjoys a
windfall; a defendant who escapes, in whole or in part,
liability for his wrong enjoys a windfall. Because the law
must sanction one windfall and deny the other, it favors the
victim of the wrong rather than the wrongdoer.49

The collateral source rule is a central part of the tort system’s goal of

“requiring tortfeasors to make right their wrongful acts.”50 The primary unifying

principle of tort law is one of corrective justice, that is, the law establishes a legal duty

for a tortfeasor to repair any damage or losses carelessly inflicted upon a victim. As the

drafters of the Restatement (Second) of Torts recognized, “it is the tortfeasor’s

48
Ilosky v. Michelin Tire Corp., 172 W.Va. at 446, 307 S.E.2d at 615.
49
Schickling v. Aspinall, 235 Va. 472, 474-75, 369 S.E.2d 172, 174 (1988)
(emphasis added).
50
Krauss & Kidd, 48 U. Louisville L. Rev. at 52 (2009).

19
responsibility to compensate for all harm that he causes,”51 not merely the net loss to the

injured party.

We are persuaded that a defendant owes to an injured plaintiff a duty to

make right for his or her wrongful acts, and so must pay the plaintiff compensation for all

losses proximately caused by any negligence or wrongdoing. It is the defendant’s

responsibility to repair the damage he or she has done to the plaintiff, and the plaintiff’s

receipt of benefits from collateral sources, whether from affection, philanthropy, contract,

social services, or others cannot relieve the defendant of this obligation. “The collateral

source rule requires the injured party to be made whole exclusively by the tortfeasor and

not by a combination of compensation from the tortfeasor and collateral sources.”52

In light of the above, we hold that the rule that collateral source benefits are

not subtracted from a plaintiff’s recovery applies to proceeds or benefits from sources

such as insurance policies, whether maintained by the plaintiff or a third party;

employment benefits; services or benefits rendered gratuitously (whether free,

discounted, or later written off); and social legislation benefits. The law does not

differentiate between the nature of these collateral source benefits, so long as they did not

come from the defendant or a person acting for the defendant.

In summary, we stand by the principle that an “injured person is entitled to

recover damages for reasonable and necessary nursing services rendered to him, whether

51
Restatement (Second) of Torts §920A, cmt. b (emphasis added).
52
Mitchell v. Haldar, 883 A.2d at 38.

20
such services are rendered gratuitously or paid for by another.”53 A person who has been

injured by the tortious conduct of a culpable tortfeasor is entitled to recover from the

tortfeasor the reasonable value of medical and nursing services necessarily required by

the injury. This recovery is for the reasonable value of the services and not for the

expenditures actually made or obligations incurred.

Stated another way, the collateral source rule permits an injured person to

recover all of his or her reasonable medical costs that were necessarily required by the

injury. Where a person’s health care provider agrees to reduce, discount or write off a

portion of the person’s medical bill, the collateral source rule permits the person to

recover the entire reasonable value of the medical services necessarily required by the

injury. The tortfeasor is not entitled to receive the benefit of the reduced, discounted or

written-off amount.

In this case, the defendant does not deny that the plaintiff would have been

liable for the total amount billed by his medical providers absent his health insurance

coverage. Whether the plaintiff took benefits from his health insurer in the form of

medical expense payments or in the form of discounts and write-offs because of

agreements between his health insurer and his health care providers is irrelevant. Those

amounts written off are as much of a benefit for which the plaintiff paid consideration as

are the actual cash payments made by his health insurer to the health care providers. This

53
Syllabus Point 5, Kretzer v. Moses Pontiac Sales, Inc., 157 W.Va. 600,
201 S.E.2d 275 (1973).

21
is the very purpose of the collateral source rule: to prevent a defendant from reaping the

benefits of a plaintiff’s preparation and protection.54

Accordingly, we find no error in the circuit court’s decision to apply the

collateral source rule and prohibit the defendant from introducing evidence of the

plaintiff’s discounted medical bills.

B. Punitive Damage Verdict

The defendant’s second argument concerns the punitive damage verdict.

Specifically, the defendant asserts that the circuit court erred in allowing one question to

be asked about the availability of liability insurance in excess of policy limits, and erred

in instructing the jury that insurance coverage for an excess verdict “may or may not” be

available.

The lawyers for both parties were permitted to give opening statements in

the punitive damages phase of the trial. The lawyer for the defendant informed the jury

that the defendant would testify that he did not have the resources to pay punitive

damages, stating:

54
We note that, in the limited context of medical negligence actions, the
Legislature has chosen to alter this balance and to permit a careless defendant to benefit
from “evidence of payments the plaintiff has received for the same injury from collateral
sources.” W.Va. Code § 55-7B-9a [2003]. But see State ex rel. Ohio Acad. of Trial
Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999); O’Bryan v.
Hedgespeth, 892 S.W.2d 571 (Ky. 1995); Wentling v. Med. Anesthesia Servs., P.A., 237
Kan. 503, 701 P.2d 939 (1985); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (N.H.
1980).

22
 He will also tell you that he has no financial means at
this point to pay a punitive damage verdict. He was working
at the time of this accident, but he’ll tell you [he] since has
been laid off. He was working for a company that sold
equipment to mines and has been laid off since May and is
currently receiving unemployment benefits in the amount of
800-and-some dollars a week. At the time that he was
working, he made 30-some thousand dollars [a] year. He has
– as a part of his unemployment, has an obligation to apply
for jobs. He has no job prospects at this point.

He’s 35 years old. Living with his parents. Doesn’t
own any property. He owns a car, which I believe is a 2002
car that is paid off. He has nothing else of financial value to
pay [a punitive damage verdict].

This Court has said that if a defendant “offers evidence of his financial

status to influence the jury on punitive damages, then the plaintiff may rebut such

evidence by introducing proof of the defendant’s liability insurance.”55 Following the

opening statements about the defendant’s financial inability to pay punitive damages, the

lawyer for the plaintiff called the defendant as an adverse witness and asked the

following two questions about the existence of liability insurance:

Plaintiff’s Counsel: You also, in fact, have insurance, don’t
you?

Defendant: I do.

Plaintiff’s Counsel: So you are not a man without assets; isn’t
that correct?

Defendant: I – I would not say that that would – I mean, I
don’t have a lot of assets. . .

55
Syllabus Point 4, in part, Wheeler v. Murphy, 192 W.Va. 325, 452 S.E.2d
416 (1994).

23
Defense counsel responded by asking the defendant on cross-examination about the

amount of liability insurance he had:

Defense Counsel: [Plaintiff’s counsel] also asked you about
insurance. And you did have insurance at the time of the
accident, correct?

Defendant: I did.

Defense Counsel: What – do you know what your policy
limits are?

Defendant: I believe they were $100,000 at the time, yes.

On appeal, counsel for the defendant challenges one question that was

asked on re-direct examination of the defendant. Because counsel for the defendant left

the jury with the impression that there was only $100,000.00 in coverage available to the

defendant, counsel for the plaintiff asked:

Plaintiff’s Counsel: With regards to your insurance coverage,
there was, in fact, a question about actually how much
coverage you have; isn’t there?

This question pertains to the amount of insurance coverage actually

available to the defendant in excess of policy limits under Shamblin v. Nationwide

Mutual Insurance Company.56 In Shamblin, this Court ruled that if an insurance

company fails to settle a liability action within policy limits where there was an

opportunity to settle, and thereby fails to protect a defendant from personal liability, then

the insurance company has prima facie acted in bad faith and may be required to pay any

56
183 W.Va. 585, 396 S.E.2d 766 (1990).

24
judgment against the defendant in excess of the policy limits.57 The plaintiff contends

that he offered to settle his claims against the defendant within policy limits. Because the

defendant’s liability insurer declined to settle, and because the jury returned a

compensatory damage verdict in excess of the policy limits, the plaintiff asserts that the

defendant’s insurer should be required to pay the entire verdict without regard to policy

limits.

Defense counsel objected to plaintiff’s counsel’s question, and the trial

court had an extensive discussion with the lawyers (outside of the jury’s presence) to

discuss whether the defendant’s insurer had been “Shamblin-ized.” Defense counsel

conceded that the defendant hired an independent lawyer (not paid by the insurance

carrier) to protect him from any Shamblin-type excess verdict. Further, it was the

defendant’s personal position that the liability insurer “is going to be responsible for the

entire verdict, regardless of what it is.” The trial court determined that defense counsel

had opened the door to the amount of available insurance coverage, and said “it is simply

not fair to let the jury believe that those are the only assets available.” Accordingly, the

57
Syllabus Point 2 of Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va.
585, 396 S.E.2d 766 (1990), states:

Wherever there is a failure on the part of an insurer to
settle within policy limits where there exists the opportunity
to settle and where such settlement within policy limits would
release the insured from any and all personal liability, the
insurer has prima facie failed to act in its insured’s best
interest and such failure to so settle prima facie constitutes
bad faith toward its insured.

25
trial court ruled it was proper to ask the defendant about the possibility of additional

coverage for an excess verdict, but limited plaintiff’s counsel to one question and ordered

counsel not to “belabor it.”

When the jury returned, plaintiff’s counsel asked the defendant the

following:

Plaintiff’s Counsel: Mr. Kenney, before we broke we were
discussing the issue regarding your amount of insurance
coverage. You understand that; is that correct?

Defendant: I do.

Plaintiff’s Counsel: Okay. You understand that because of
some actions that have been taken in . . . the course of this
case, that you may have additional coverage to cover
whatever the verdict may be; isn’t that correct?

Defendant: That is correct.

At the conclusion of evidence in the punitive damage phase of the trial, the

trial court proposed giving the following limiting instruction to the jury:

The Court instructs you that because of certain legal actions
that have been taken in this case that there may or may not be
additional coverage to pay whatever your verdict may be.

Defense counsel objected to this instruction that there “may or may not be additional

coverage” under Shamblin on the ground that “under Rule 51 [of the Rules of Civil

Procedure] that that’s commenting upon the evidence.” The trial court rejected this

objection and read the instruction to the jury.

After deliberations, the jury returned a verdict finding that the defendant

“engaged in grossly negligent or reckless conduct which caused the motor vehicle

26
accident” with the plaintiff. The jury returned a $300,000.00 punitive damage award

against the defendant.

The defendant argues that the questions and instructions allowed by the

circuit court crossed the line from the existence and policy limits of defendant’s liability

insurance, and allowed the jury to wander in areas of pure speculation about whether

there “may be” unlimited insurance coverage available to the defendant. The defendant

argues that the circuit court permitted the jury to speculate about the potential post-

judgment effect of their punitive damage award.58 This is because at the time of trial

(and, in fact, up to the time of oral argument before this Court) there had been no

determination by the circuit court that the defendant’s insurance carrier would be

obligated under Shamblin to indemnify the defendant for any liability in excess of policy

limits.

The defendant also argues that the circuit court’s instruction to the jury was

in error, because it was an improper comment upon the evidence. Rule 51 of the Rules of

Civil Procedure [1998] says that, “the instructions given by the court . . . shall not

58
The defendant’s argument is patterned after Lacy v. CSX Transp. Inc.,
205 W. Va. 630, 520 S.E.2d 418 (1999), where we disapproved a circuit court’s actions
allowing a jury to speculate on the effects of joint and several liability. We said, in
Syllabus Point 4 of Lacy, that:

In a civil trial it is generally an abuse of discretion for
the trial court to instruct the jury or permit argument by
counsel regarding the operation of the doctrine of joint and
several liability, where the purpose thereof is to communicate
to the jury the potential post-judgment effect of their
assignment of fault.

27
comment upon the evidence[.]” The defendant contends that by instructing the jury that

“there may or may not be additional coverage to pay whatever your verdict may be,” the

circuit court had given undue influence to one piece of the defendant’s financial

condition.

After carefully reviewing the appendix record, we find that the circuit court

did not err. Counsel for the defendant “opened-the-door” to the issue of liability

coverage when she asserted in opening argument that the defendant was financially

unable to pay any punitive damage verdict when, in fact, he had liability insurance.

Further, when counsel for the defendant asked questions leaving the jury with the

impression that only $100,000.00 in coverage was available, she “opened-the-door” to

the availability of coverage for an excess verdict. At the time of the punitive phase of the

trial, both the plaintiff and defendant were aware that the liability insurer could be faced

with paying an excess verdict pursuant to Shamblin. The plaintiff had sought to settle the

case within the $100,000.00 policy limits. Taken together, even without a judicial ruling,

these facts established that the liability insurer had “prima facie failed to act in its

insured’s best interest” and could be liable for an excess verdict. The circuit court

correctly discerned that it would have been misleading to leave the jury thinking that only

$100,000.00 in coverage was available.

Furthermore, the formulation of jury instructions is a matter within the

discretion of the trial court:

The formulation of jury instructions is within the broad
discretion of a circuit court, and a circuit court’s giving of an
instruction is reviewed under an abuse of discretion standard.

28
 A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the
instructions given as a whole are accurate and fair to both
parties.59

The appendix record establishes that the circuit court’s instruction was accurate and

based directly on the testimony of the defendant. Further, the instruction was fair to both

parties.

We therefore find no error underlying the jury’s punitive damage verdict.

IV.
CONCLUSION

We find no error in the circuit court’s judgment order dated October 9,

2012, or in the circuit court’s decision denying the defendant a new trial dated February

26, 2013.60

Affirmed.

59
Syllabus Point 6, Tennant v. Marion Health Care Foundation, Inc., 194
W.Va. 97, 459 S.E.2d 374 (1995).
60
The defendant makes two additional arguments that the circuit court
erred by including lines for certain damages on the jury’s verdict form. However, the
defendant never raised any objection about these damages on the verdict form to the
circuit court. “Where objections were not shown to have been made in the trial court, and
the matters concerned were not jurisdictional in character, such objections will not be
considered on appeal.” Syllabus Point 1, State Road Comm’n v. Ferguson, 148 W.Va.
742, 137 S.E.2d 206 (1964). Accordingly, we decline to consider these two assertions by
the defendant.

29