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Sherbahn v. Kerkove9/17/1999
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge.
I. INTRODUCTION
Gregory Kerkove sued David Sherbahn and Sherbahn's employer, Spenard Builders Supply (SBS), for negligence arising out of an automobile accident. At trial, the jury awarded $25,000 in past and future damages to Kerkove. Because this award exceeded Kerkove's pre-trial offer of judgment, the superior court's judgment included enhanced prejudgment interest from the date of injury. The court also awarded enhanced postjudgment interest. Sherbahn and SBS appeal, arguing that the superior court erred in (1) denying their motion for a directed verdict because the evidence did not support the jury's award of future medical expenses, (2) failing to reduce the future medical expenses to present value, (3) computing prejudgment interest from the date of injury, and (4) enhancing postjudgment interest.
Because the evidence supports the jury's award of future medical expenses, we affirm the superior court's denial of the motion for a directed verdict. We also conclude that the trial court correctly refused to reduce the future medical expenses to present value and properly computed prejudgment interest from the date of injury. But the trial court erred in enhancing postjudgment interest. Thus, we reverse and remand on that limited issue.
II. FACTS AND PROCEEDINGS
On April 14, 1994, David Sherbahn and Gregory Kerkove were involved in a car accident at the intersection of Post Road and Viking Drive in Anchorage. Kerkove sued Sherbahn and Sherbahn's employer, Spenard Builders Supply (SBS). Before trial, Kerkove offered to settle the dispute for $30,000, inclusive of costs, interest, and attorney's fees. Sherbahn and SBS rejected the offer.
Although Sherbahn and SBS initially denied liability, in opening statement at trial they conceded that Sherbahn was negligent and that his negligence was a legal cause of the accident. Accordingly, the trial primarily addressed the issues of damages and Kerkove's comparative fault.
In addition to past economic and non-economic damages, Kerkove sought compensation for future medical treatment and future non-economic loss, including pain and suffering. To support his claim for future medical bills, Kerkove testified that he continued to experience neck pain and occasional headaches. His treating chiropractor, Dr. Edward Barrington, referred him in the fall of 1994 to Dr. Glenn Ferris for an evaluation and possible treatment because Kerkove was no longer responding to Dr. Barrington's mode of treatment. After examining Kerkove, Dr. Ferris reported:
Because he is doing so well, I am providing him with an anti-inflammatory to assist in the final stages of recovery and am sending him back for further chiropractic management. Quite possibly, the anti-inflammatory combined with his chiropractic management will be adequate to restore him to his pre-injury status. In the event that we are unsuccessful in gaining full recovery within the next couple of weeks, trigger-point injections with a concomitant physical therapy protocol will be considered.
But Kerkove claims that he never underwent the trigger-point injection treatment because he could not afford its estimated cost of $8,000-$15,000.
After the parties had presented all of their evidence, Sherbahn and SBS moved for a directed verdict on Kerkove's future economic and non-economic loss:
he medical records themselves indicate that he . . . resolved pains, and the pains he's left with, as he himself has described, are pains similar to what he had before the acci
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