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Brown v. Goncher11/23/2005
NOT TO BE PUBLISHED
OPINION AFFIRMING
BEFORE: GUIDUGLI, KNOPF, AND McANULTY, JUDGES.
Marshall Brown appeals from a July 13, 2004, judgment of the Hardin Circuit Court confirming a jury verdict that denied his personal-injury claim against Paul E. Goncher, Jr. Goncher and third-party defendant Alfred O. Fout also cross-appeal from this judgment. We conclude that there was substantial evidence to support the jury's finding that Brown failed to prove reasonable and necessary medical expenses sufficient to bring a tort action. We also find no merit to Brown's other claims of error. Because we are affirming the judgment, the issues raised in the cross-appeals are moot.
On December 12, 1998, Brown was a passenger in a pickup truck owned and operated by Gary Yates which was traveling north on US Highway 31W in Elizabethtown, Hardin County, Kentucky. Goncher was also traveling north on US 31W behind Yates's vehicle. Fout was driving his vehicle southbound on US 31W in the same area. Fout made a left turn into what he thought was the proper entrance to Freeman Lake Park. However, he misjudged the entrance and instead turned left onto the emergency lane adjacent to the northbound lanes. There is some dispute whether Fout got his vehicle completely off the roadway or the rear of his vehicle was partially obstructing the roadway. Yates slammed on his brakes and swerved hard to the left to avoid Fout's car. There is some indication that Goncher's truck may have struck Fout's car, but the evidence is conflicting. It is agreed that Goncher's vehicle rear-ended Yates's vehicle.
On December 12, 2000, Brown filed a personal-injury action against Goncher. Subsequently, Goncher's insurance company, Go-America Insurance, offered to settle the claim for the policy limits of $25,000.00. The underinsured motorist (UIM) carrier for Yates's vehicle, the Travelers Indemnity Company (Travelers), substituted its payment for the offered settlement pursuant to Coots v. Allstate Insurance Co.
Thereupon, Brown amended his complaint to assert a claim for underinsured motorist benefits against Travelers. Brown did not name Fout as a party to the action.
On September 19, 2002, Goncher filed a motion to file a third-party complaint against Fout. Brown objected, pointing out that the statute of limitation on claims against Fout had run. Nonetheless, the trial court granted the motion on December 19, 2002, and Fout was added as a party. The third-party complaint alleged that Goncher was entitled to indemnity from Fout and, in the alternative, to apportionment of fault against Fout. The trial court subsequently denied Fout's motion for summary judgment, concluding that Goncher's claim against Fout for indemnity was not time-barred.
Following an extended period of discovery, the case proceeded to a jury trial on May 19-28, 2004. The jury returned a verdict for Goncher, finding that Brown had failed to prove that he had incurred more than $1,000.00 in reasonable and necessary medical expenses as a direct result of the accident. Thereafter, Brown filed motions for a new trial, for a judgment notwithstanding the verdict, and to alter, amend, or vacate the judgment.
The trial court denied the motions and entered a final judgment on July 13, 2004. Brown appeals from this judgment, and Goncher and Fout have each filed protective cross-appeals on other issues which may be implicated if a new trial is granted.
Brown primarily challenges the jury's conclusion that he failed to prove that he had incurred more than $1,000.00 in reasonable and necessary medical expenses as a direct result of the accident. The Motor Vehicle Reparati
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