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HomeMy WebLinkAbout97-5100 Civil TERRY L. BULKLEY, SR., and VERAELLEN BULKLEY, in their own Right and as parents and Natural guardians of TERRY L. BULKLEY, Minors WARD TRUCKING CORPORATION and DAVID H. CARROLL IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-5100 CIVIL IN RE: PETITION OF PLAINTIFFS TERRY L. BULKLEY, SR. AND VERAELLEN BULKLEY FOR DELAY DAMAGES BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is the Petition for Delay Damages filed by Plaintiffs Veraellen Bulkley and Terry L. Bulkley, Sr. We will summarize the facts relevant to the petition. The action arose out of a motor vehicle accident which occurred on October 2, 1995. Suit was commenced by the filing of a praecipe for writs of summons on September 9, 1997. The writs were served on October 3, 1997. Shortly thereafter defendants' counsel entered his appearance. He was advised by plaintiffs' counsel that the action had been commenced simply to toll the statute of limitations pending negotiations with defendants' insurance carrier. Consequently, no action was taken by either party to advance the litigation. During the next 18 months, the plaintiffs provided defendants' carrier with "medical data as it developed" in the hopes that a settlement could be achieved. ~ No Affidavit of plaintiffs' counsel dated August 13, 2003. NO. 97-5100 CIVIL formal action was taken until May 27, 1999, when interrogatories were served upon plaintiffs' counsel. The complaint was filed on August 9, 1999. Thereafter, the parties availed themselves of available discovery under the Rules of Civil Procedure. The case was first listed for trial by plaintiffs' counsel on September 12, 2002. Trial was delayed so that the parties could pursue mediation. The case was mediated unsuccessfully on December 9, 2002. Trial commenced on March 10, 2003, and ended on March 13, 2003, when the jury returned verdicts in favor of plaintiffs. The jury awarded $455,000 to Veraellen Bulkley and $75,000 to Terry Bulkley, Sr. for the injuries sustained in the accident.2 Delay damages are governed by Pennsylvania Rule of Civil Procedure 23 8. The Rule provides in relevant part as follows: Rule 238. Damages for Delay in Actions for Bodily Injury, Death or Property Damage (a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant.., found to be liable to the plaintiff in the verdict of a jury,.., and shall become part of the verdict, decision or award. (2) Damages for delay shall be awarded for the period of time from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision. (b) (1) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any, (i) after the defendant made a written offer which complied with the requirements of subdivision (b)(2), provided that the plaintiff : In addition, each plaintiff received $10,000 in connection with a loss of consortium claim. However, delay damages are not applicable to that portion of the award. SeeAnchorstar v. Mack Trucks, 533 Pa. 177, 620 A.2d 1120 (1993). NO. 97-5100 CIVIL (emphasis added). obtained a recovery which did not exceed the amount described in subdivision (b)(3), or (ii) during which the plaintiff caused delay of the trial. Plaintiffs contend that they are entitled to delay damages from October 3, 1998, one year after original process was served upon defendants. Defendants contend that there were certain periods during which trial was delayed due to the conduct of plaintiffs. Therefore, those periods should be excluded from the computation of delay damages pursuant to Rule 238 b(1)(ii).3 We are satisfied that plaintiffs' position is the correct one. The defendants' primary argument is that the calculation of delay damages should not commence until the complaint was filed in August of 1999. They contend that the litigation was put on hold prior to that date in order for the plaintiff to pursue settlement negotiations. However, the decision to "delay" litigation was not made by the plaintiffs alone. It was a joint decision made by, and for the benefit of, all parties. Nothing would have prevented the defendants from moving the litigation forward4 or otherwise protecting themselves "against the assessment of delay damages by extending a prompt, reasonable settlement offer." Joseph Costa v. Lauderda/e Beach Hotel, 534 Pa. 154, 162, 626 A.2d 566, 570 (1993). Therefore, defendants' argument to exclude the time devoted to settlement negotiations from the calculation of delay damages under Rule 238 b(1)(ii) must fail. 5 3 Since no written offer of settlement was ever made, the exception contained in Section b (1)(i) of the Rule is not applicable. 4 We note that defendants never requested a rule on plaintiffs to file a complaint as authorized by Pa.R.C.P. 1037(a). s The same rationale applies to the delay in trial caused by the mediation process the parties agreed to pursue. NO. 97-5100 CIVIL The remaining periods of time defendants contend should be excluded are nothing more than procedural delays. Virtually all of the delays complained of were caused by the alleged failure of plaintiffs to timely provide, or supplement, discovery requests. We are satisfied that these were not the type of delays contemplated by the exception contained in Rule 238 b(1)(ii). The following portion of the explanatory comment to the Rule is instructive: With respect to delay of the trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial. For example, failure by the plaintiff to answer interrogatories within thirty days should not affect the award of damages for delay unless the trial was delayed as a result. Otherwise, the introduction of the fault concept and its attendant hearing would create a large new field of court hearings revolving around evidence of dilatory compliance with discovery procedures, the evidence of which would consist almost entirely of the attorneys testifying against each other and could be years old before the hearing. It is felt that present Rule 4019 provides a vehicle, although little used at present, which can timely dispose of delay due to discovery noncompliance regardless of whether or not it delays the trial. The note under proposed Rule 238 (b)(2) is a remainder of this alternative remedy to halt delay damages and to expedite preparation of the case for trial. Pa. R.C.P. 238, Explanatory Comment 1988. The note to Rule 238 (b)(2) referred to in the Explanatory Comment provides: Note: This rule does not preclude the suspension of damages for delay as a pretrial sanction under Discovery Rule 4019. In the instant case, no motion for sanctions was ever filed by the defendants. Whether that was because the defendant was content with the pace of the litigation or the issues were resolved by counsel without court involvement, does not matter. In either case, none of the delays were of such length, or at such times, that we could find that they caused a delay of the trial. NO. 97-5100 CIVIL For the reasons stated above, plaintiffs are entitled to delay damages from October 3, 1998 thru March 13, 2003. We have computed the damages in accordance with Rule 238 (b)(3) and the Addendum to the Explanatory Comment which sets forth the applicable interest rates.6 Plaintiff Veraellen Bulkley is entitled to delay damages in the amount of $172,345.26. Plaintiff Terry L. Bulkley, Sr. is entitled to delay damages of $28,408.56. Consequently, we will enter the order that follows. ORDER OF COURT AND NOW, this 23RD day of OCTOBER, 2003, in accordance with Pa. R.C.P. 238 judgment is entered in favor of Plaintiff Veraellen Bulkley and against defendants jointly and severally in the amount of $172,345.26, and in favor of Plaintiff Terry Bulkley, Sr. and against defendants jointly and severally in the amount of $28,408.56, representing delay damages in connection with the verdicts awarded to each on March 13, 2003. By the Court, B.G. Stephenson, Esquire C. Kent Price, Esquire :sld /s/Edward E. Guido Edward E. Guido, J. 6 Our calculations are attached hereto as Exhibit # 1.