Delay Damages Apply to Future Medical Expense Awards
McDonnell said the Superior Court in Roth apparently drew a distinction between past and future medical expenses by finding that because future medical expenses are somewhat speculative and have yet to be incurred, delay damages can be applied.
"I see where they're coming from," McDonnell said of the Roth court, but he added that he doesn't necessarily agree with the court's reasoning.
In Roth, according to Donohue, defendant Jennifer Ross struck Roth's vehicle from behind on a highway in Luzerne County.
In August 2009, Roth filed suit against Ross and defendant Erie Insurance Exchange, Roth's underinsured motorist insurance carrier, in Luzerne County court, seeking past and future pain and suffering, past and future medical expenses, lost wages, lost future earning capacity, mental anguish and emotional distress, Donohue said.
Following a three-day trial, a jury awarded Roth $60,000, including $40,000 for past pain and suffering and $20,000 for future medical expenses, according to Donohue.
In February 2013, Donohue said, Roth filed a motion for delay damages and Ross responded with a motion arguing that delay damages cannot be added to awards for future medical expenses.
According to Donohue, while Erie was named as a defendant in the case, it was not involved post-trial because the jury award did not exceed the $100,000 limit on Ross' motor vehicle insurance policy.
In May 2013, Gelb awarded delay damages on the $40,000 pain and suffering award but denied them with regard to the future medical expenses award, according to Donohue.
Gelb said Roth failed to cite any appellate case law that specifically states that future medical expenses fall under Pa.R.C.P. 238's definition of "bodily injury," according to Donohue.
Gelb also pointed to fellow Luzerne County Court of Common Pleas Judge William H. Amesbury's unpublished 2008 opinion case Ferraro v. Knies, in which he denied delay damages on future medical expenses based on the Pennsylvania Supreme Court's 1993 ruling in Anchorstar v. Mack Trucks and the state Superior Court's 2001 ruling in Goldberg v. Isdaner, according to Donohue.