Delay Damages Apply to Future Medical Expense Awards
However, both plaintiffs and defense lawyers said that while the defense posed a novel argument, the court's ruling is not necessarily a break from the norm.
In an eight-page opinion in Roth v. Ross, a three-judge panel unanimously reversed a ruling by Luzerne County Court of Common Pleas Judge Lisa M. Gelb denying plaintiff Eileen Roth's request for delay damages on a $20,000 award for future medical expenses.
Judge Christine L. Donohue, writing for the court, said Gelb improperly focused her decision not to apply delay damages on her determination that future medical expenses do not constitute "bodily injury."
Donohue said the proper inquiry was whether future medical expenses constitute "monetary relief for bodily injury." She found that they do.
"Future medical expenses that will be incurred as a result of treatment of injuries sustained because of the defendant's negligence are, by definition, monetary relief for bodily injury," Donohue said. "The trial court's denial of Roth's request for delay damages on the $20,000 allocated for future medical expenses on this basis was therefore error."
Donohue was joined by Judge Paula Francisco Ott and Senior Judge William H. Platt.
But Alan M. Feldman, of Philadelphia personal injury firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, who was not involved in the case, said he had always thought delay damages could be added to awards for future medical expenses.
"I've collected delay damages on future medicals in every case I've ever collected delay damages on," Feldman said, adding, "I think the decision basically just confirms what we all understood the law to be."
It wasn't only plaintiffs attorneys who said most lawyers have always operated under the assumption that delay damages can be applied to future medical expenses.
Thomas A. McDonnell, an insurance defense attorney with Summers, McDonnell, Hudock & Guthrie in Pittsburgh who also was not involved in Roth, said he's never before heard of a defense attorney making the argument that delay damages should not be applied to future medical expenses, but he noted that appellate case law has previously held that delay damages cannot be added to awards for past medical expenses.
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.
But Donohue said Anchorstar and Goldberg were inapplicable because, in those cases, the courts refused to apply delay damages to future medical expenses because the plaintiffs were seeking relief for someone else's bodily injury.
Donohue said Pa.R.C.P. 238(a)(1), which states that delay damages shall be applied "at the request of the plaintiff in a civil action seeking monetary relief for bodily injury," is "clear and unambiguous."
Donohue also disagreed with Ross' argument that delay damages should not be applied to future medical expenses because they are expenses that have not yet been incurred.
"This court has previously held that a trial court properly grants delay damages for awards on future injuries," Donohue said, pointing to the Superior Court's 1991 rulings in Lilley v. Johns-Manville and Gross v. Johns-Manville.
Donohue added in a footnote that another proper inquiry the trial court could have made in Roth was whether future medical expenses constitute compensatory damages under Rule 238.
Donohue said they clearly do, according to the Supreme Court's 2004 ruling in Tucker v. Philadelphia Daily News, in which the justices noted that the plaintiff had sought compensatory damages, including future medical expenses, in an underlying suit.
Counsel for Roth, Brian J. Butler of Lenahan & Dempsey in Wilkes Barre, Pa., could not be reached for comment at press time.
Counsel for Ross, Ryan C. Blazure of Thomas, Thomas & Hafer in Wilkes Barre, also could not be reached.
(Copies of the eight-page opinion in Roth v. Ross, PICS No. 14-0229, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •