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McCormack v. Capital Electric Construction Co.12/21/2004
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART.
Spinden, P.J. and Holliger, J., concur.
This appeal arises from a jury verdict awarding Virgil and Sandra McCormack $30.4 million dollars on negligence and loss of consortium claims against Capital Electric Construction Company, Inc. The McCormacks accepted remittitur of the verdict to $8.9 million and now appeal the trial court's denial of prejudgment interest. Capital appeals the denial of its motion for new trial. In a cross-appeal, the McCormacks challenge the remittitur.
We reverse the denial of prejudgment interest on Mr. McCormack's damage award and affirm on the remaining points.
I. FACTUAL AND PROCEDURAL HISTORY
Virgil McCormack suffered an electrical shock and was seriously injured on December 13, 1995, while working as a carpenter on a construction project at the Marion Merrell Dow offices in Kansas City. The shock occurred when he came into contact with an uncapped 277-volt live electrical wire as he stood on a metal scaffold taking drywall measurements. Mr. McCormack had few immediate symptoms from the electrical shock, other than fatigue and initial confusion. Two weeks later, he began having seizures and his symptoms eventually progressed to pain in his chest, hips and shoulders, migraines, impaired concentration, numbness, loss of motor control, and problems with his balance and gait.
In September 1998, Mr. McCormack filed a negligence claim against Capital, the electrical subcontractor on the construction project. His wife filed a claim for loss of consortium. At trial, the jury found Mr. McCormack was 92% at fault for the electrical shock incident and awarded him damages of $256,000. The jury found against Mrs. McCormick on her loss of consortium claim.
The McCormacks filed a motion for new trial, asserting the verdict was against the weight of the evidence. The trial court granted the motion, and the new trial was affirmed on appeal. McCormack v. Capital Elec. Constr. Co., 35 S.W.3d 410 (Mo.App. 2000).
A second jury trial was held in February 2003. The jury returned a verdict for the McCormacks, assessing 100% fault against Capital. Compensatory damages of $28.8 million were awarded on Mr. McCormack's negligence claim and $1.6 million for Mrs. McCormack's loss of consortium. The court's judgment included an award of prejudgment interest.
Capital filed a motion for new trial or, alternatively, for remittitur and sought to amend the judgment to disallow prejudgment interest. After extensive briefing by the parties, the court determined the total verdict was excessive and ordered a new trial unless the McCormacks agreed to a remittitur of the negligence award to $7.7 million and the loss of consortium award to $1.2 million. The court also amended the judgment to deny prejudgment interest.
The McCormacks agreed to the remittitur and appealed the denial of prejudgment interest. Capital filed a separate appeal of the denial of the new trial motion, and the McCormacks cross-appealed the remittitur pursuant to Rule 78.10 . After consolidating the appeals, this court transferred the case to the Supreme Court in light of a constitutional challenge to the remittitur statute, as raised by the McCormacks. The Supreme Court granted Capital's motion for remand and retransferred the consolidated case to this court for full determination.
II. ISSUES ON APPEAL
A. REMITTITUR
Both parties raise several issues challenging the remittitur of the jury's $30.4 million compensatory damages verdict to $8.9 million. Capital contends a new trial, rather than remittitur, was required because plain
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