 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kastick v. U-Haul Company of Western Michigan3/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
Appeal from a judgment of Supreme Court, Cayuga County (Corning, J.), entered June 15, 2001, upon a jury verdict rendered in favor of plaintiffs.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by modifying the order entered May 18, 2001, to increase the award of medical expenses to $176,269.18 and to provide for interest on that amount from the date of decedent's death and by vacating the award of damages for conscious pain and suffering and as modified the judgment is affirmed without costs and a new trial is granted on damages for conscious pain and suffering only unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to increase the verdict for conscious pain and suffering to $350,000, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.
Memorandum:
On December 16, 1994, Theodore H. Kastick (decedent) (*2)was making a left turn from State Route 38 into his daughter's driveway in the City of Auburn when a U-Haul truck leased by defendant Nycole Rosetti and driven by defendant Mark C. Pierce struck decedent's vehicle on the driver's side while passing decedent's vehicle on the left. Decedent was pinned inside the vehicle and the jaws of life were required to free him. Decedent, who was 66 years old, sustained multiple rib fractures, a fractured leg and hip, three broken front teeth and numerous contusions. As a result of the rib fractures and pulmonary contusion, decedent was unable to take in enough oxygen, and he was placed on a respirator. He became respirator-dependent, and attempts to wean him from the respirator were unsuccessful. He died five months after the accident.
The first trial in this wrongful death action resulted in a verdict of $50,000 for decedent's conscious pain and suffering and $25,000 for the derivative cause of action of Katherine M. Kastick (plaintiff). Supreme Court dismissed plaintiff's wrongful death cause of action and claims for loss of household services and loss of support on the ground that plaintiff had not made out a prima facie case. On appeal from the judgment, we reversed the judgment insofar as appealed from and granted a new trial "on damages for conscious pain and suffering and on whether decedent's death was caused by the motor vehicle accident and, if so, on damages for wrongful death" (Kastick v U-Haul Co. of W. Mich., 259 AD2d 970, 971). In light of our determination, we did not reach the issue of the adequacy of the jury's award for conscious pain and suffering (Kastick v U-Haul Co. of W. Mich., supra, at 971). At the second trial, the court directed a verdict, determining as a matter of law that the accident caused decedent's death. The claim for loss of support was withdrawn and the jury awarded damages of $125,000 for conscious pain and suffering and awarded no damages for loss of household services. The parties stipulated that decedent's medical expenses were $369,883.06, subject to a collateral source hearing.
Plaintiff contends that the court's determinations concerning the reductions for collateral sources are erroneous. After receiving payments from no-fault and Medicare, University Hospital "wrote off" the remaining balance of $138,613.88. Plaintiff contends that defendants were not entitled to a credit for that amount because the "write-off" did not constitute payment from a collateral source. Defendants contend that plaintiff may not recover from them an
Page 1 2 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|