BOWLING GREEN MUNICIPAL UTILITIES, Appellant, v. ATMOS ENERGY CORPORATION d/b/a Western Kentucky Gas, et al., Appellees, and James Johnson, et al., Appellants, v. Bowling Green Municipal Utilities, et al., Appellees, and Scotty‘s Contracting & Stone, Appellant, v. Atmos Energy Corporation d/b/a Western Kentucky Gas, et al., Appellees, and GRW Engineers, Inc., Appellant, v. Atmos Energy Corporation d/b/a Western Kentucky Gas, et al., Appellees.
Nos. 97-SC-300-DG, 97-SC-312-DG, 97-SC-302-DG, 97-SC-306-DG
Supreme Court of Kentucky
April 22, 1999
As Amended April 27, 1999
989 S.W.2d 577
STEPHENS, Justice.
Charles E. English, Jr., English, Lucas, Priest & Owsley, Bowling Green, Kentucky, for appellees Atmos Energy Corporation d/b/a Western Kentucky Gas, et al.
Gregory Y. Dunn, Hensley, Dunn, Ross & Howard, Horse Cave, Kentucky, for West American Insurance Company, Brewer T. Jones, and Margaret P. Jones.
O. Lee Cave, III, Carrie J. Kanani, Debbie D. Sandler, Clark, Ward & Cave, Louisville, Kentucky, for Travelers Insurance Company.
Benjamin S. Harralson, Louisville, Kentucky, for Southern United Medigroup, Inc.
John D. Cole, Matthew J. Baker, Cole, Moore & Baker, Bowling Green, Kentucky, for Scotty‘s Contracting and Stone, Inc.
Mark Scott Riddle, Daniel Potts Cherry, Greenebaum, Doll & McDonald, PLLC, Louisville, Kentucky, for GRW Engineers, Inc.
Jerry Safford, Safford, Lanphear & Simpson, Bowling Green, Kentucky, for appellants James Johnson, et al.
STEPHENS, Justice.
These cases arose out of a natural gas explosion and resulting fire that occurred on January 19, 1994 in Bowling Green, Kentucky. Four houses were destroyed, along with appreciable personalty, and two individuals suffered physical injuries.
Initially, only Atmos Energy Corporation, d/b/a Western Kentucky Gas (WKG), was named as defendant. By various impleaders, Bowling Green Municipal Utilities (BGMU), Scotty‘s Stone and Contracting (Scotty‘s) and GRW Engineering (GRW) were added as defendants. Over the objection of the plaintiffs, the cases were consolidated for trial. Plaintiffs conceded that the claims against WKG were identical, other than the type and amount of damages sought, to the claims against the three other defendants.
Following voir dire, the four defendants were each granted four peremptory challenges for a total of sixteen. Counsel for the seven individual plaintiffs (who had filed four separate actions) was granted twelve peremptory challenges. Counsel for the two plaintiff insurance companies were granted two peremptory challenges each. This resulted in both the plaintiffs and defendants having sixteen peremptory challenges. WKG objected to the allocation of sixteen strikes because of an alleged violation of
The jury subsequently rendered a verdict, solely against WKG, in the amount of $239,287.47 in compensatory damages for injuries to the real estate, the personal property, and for harm to individuals. In addition, a total
WKG appealed to the Court of Appeals, which reversed and remanded this case to the circuit court. A unanimous panel ruled (1) that it was error for the trial court to grant an additional allocation of peremptory challenges to the plaintiffs, in view of
The Court of Appeals, in its remand, directed that the case be retried against all four defendants, even though the jury had exonerated all defendants, except WKG, against whom it found sole fault and assessed all damages. Although the Court of Appeals discussed other issues, in view of our disposition of this case, it is not necessary to discuss them here.
Appellants, who are the plaintiffs and subrogees below, urge that the Court of Appeals erred in deciding that the trial court‘s allocation of extra peremptory challenges constituted a violation of
On cross-appeal, the defendants BGMU, Scotty‘s and GRW, urge that the Court of Appeals remand of the case for a retrial against them (in addition to WKG) was error since the jury found no negligence as against them.2
I. DID THE COURT OF APPEALS ERR WHEN IT RULED THAT THE NUMBER OF PEREMPTORY CHALLENGES GRANTED BY THE TRIAL COURT TO THE PLAINTIFFS VIOLATED CR 47.03 ?
All of the plaintiffs had identical claims against WKG, Scotty‘s, BGMU, and GRW. None of the plaintiffs filed cross-claims and none chose to file suits against additional defendants. The majority of the plaintiffs were represented by the same attorney. In spite of this situation, the individual plaintiffs were allowed to exercise a total of twelve peremptory strikes. Moreover, the two insurance company plaintiffs received two peremptory challenges. Thus, there was a total of sixteen peremptories on the plaintiffs’ side.
In Kentucky Farm Bureau v. Cook, Ky., 590 S.W.2d 875 (1979), the trial court allowed the plaintiff three peremptory challenges and the defendants nine, even though the defendants took identical trial positions. We held that
Violations of
Since no antagonistic interests were shown, since the sole reason given by the trial judge was not within the written purview of the rule, and since this Court has elevated the provision of
II. DID THE COURT OF APPEALS ERR IN RULING THAT THERE WAS NOT SUFFICIENT EVIDENCE, AS A MATTER OF LAW, TO JUSTIFY THE AWARD OF PUNITIVE DAMAGES?
The Court of Appeals, after examining the evidence relative to the propriety of allowing punitive damages, declared that under the then-existing provisions of
To begin our analysis, we note that the constitutionality of
What we do, in this decision, is to determine if the evidence presented by the plaintiffs, relative to the imposition of punitive damages, met the standard of proof required by
No evidence was introduced by the plaintiffs that the defendant, WKG, acted fraudulently. Moreover, no evidence was introduced to the effect that the defendants oppressed the plaintiffs. Therefore, the determinative question is whether the plaintiffs established malice on the part of WKG. Malice, as defined by
On January 16-19, 1994, the weather in Bowling Green hovered between zero degrees and minus nine degrees. A layer of ice and snow covered the ground, preventing the leaking gas in the fractured gas main from harmlessly escaping into the atmosphere as would normally have been the case. Instead, it migrated from the fracture site along utility service lines into the crawl spaces of the four houses where it was ignited. At trial, much contradictory evidence was presented regarding the cause of the gas main fracture. There were conflicting reports as to whether there had been a gas leak in the neighborhood immediately prior to the explosion. WKG denied notice of a previous gas leak and no testimony was presented indicating that WKG had notice of a previous gas leak. An investigation of the accident revealed that the fracture could have been caused by either installation, leakage from water lines years before or corrosion. There was testimony that construction of a “cut” in the street by an unknown third party damaged the pipe (there were equipment teeth marks on it), but that the freezing temperatures were the determinative factor causing the gas main to fracture. There was also evidence that the leak might have been caused by improper repair of the pipe by either WKG or an unknown third party. WKG disclaimed ever having repaired the pipe and the plaintiffs were unable to document that it had done so. Finally, the Public Service Commission‘s investigation of the incident revealed that the damage had been caused by an unknown third party.
While this summary of the evidence is not exhaustive, we have fully examined the record with respect to the “malice” requirement of the statute. That the accident happened is a certainty. The jury found only the gas supplier, WKG, to be negligent and it exonerated BGMU, GRW Engineering, and Scotty‘s. The evidence that would place liability for punitive damages on WKG is not only unclear and speculative, but falls far short of showing “flagrant indifference” to the plaintiffs. The evidence presented to the jury was insufficient to allow it to form a belief that WKG willfully disregarded its duty to either properly repair the gas main or replace it. The evidence showed that the gas pipe burst suddenly and without warning due to the extremely cold temperatures. No evidence showed that the gas line had leaked for an extended period of time and that WKG had disregarded the danger or failed to discover the leak. WKG was not informed of any problems concerning the possible leak until the date of the incident. Furthermore, there was no evidence showing that WKG had caused the mechanical damage to the pipe or that it was aware that such damage had occurred. In summary, the evidence certainly does not show “subjective awareness” that WKG‘s conduct would result in death or bodily harm to the plaintiffs.
The Court of Appeals is affirmed on this point.
III. DID THE COURT OF APPEALS ERR IN REMANDING THE CASE FOR RETRIAL ON THE ISSUES OF LIABILITY AND COMPENSATORY DAMAGES AGAINST ALL DEFENDANTS, INCLUDING THOSE THREE WHICH WERE FOUND FREE OF LIABILITY BY THE JURY?
The jury verdict specifically exonerated Scotty‘s, BGMU, and GRW from all liability and placed the entire fault on WKG. The Court of Appeals, following its decision on the
Those three original defendants, Scotty‘s, BGMU and GRW, appealed this part of this decision of the Court of Appeals. The jury exonerated Scotty‘s, BGMU and GRW from any liability. The jury found, as a matter of fact, that these three defendants were not guilty of any negligence that led to the plaintiffs’ injuries. The plaintiffs did not appeal, and thus, the issue decided by the Court of Appeals as to these three defendants was not even properly before it.
As we stated in Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980), this Court strongly favors the limiting of retrials, except when an injustice would result. “[A] party who has already had his day in court as to a particular issue may not have another opportunity to relitigate the same point unless a partial new trial will result in a miscarriage of justice.” Id. at 146 (citing Scuddy Mining Co., 295 S.W.2d at 554).
Since the plaintiffs did not appeal the verdict in favor of these three defendants, they cannot now be heard. Although a retrial is ordered on the basis of the violation of
Because we have decided this issue in this manner, the other issues raised by GRW need not be discussed. The Court of Appeals is reversed in part and affirmed in part. The case is remanded to the trial court with direction to retry the case against only WKG on the issue of liability and compensatory damages.
COOPER, GRAVES, JOHNSTONE, and STUMBO, JJ., concur.
LAMBERT, C.J., dissents in a separate dissenting opinion.
WINTERSHEIMER, J., joins this dissenting opinion.
LAMBERT, Chief Justice, dissenting.
With regard to the majority‘s conclusion that there was not sufficient evidence as a matter of law for an award of punitive damages, I respectfully disagree. The jury awarded the plaintiffs $450,000 in punitive damages. The Court of Appeals reversed, holding that there was insufficient evidence against WKG, and that the trial court should have granted a directed verdict for WKG on the punitive damages claim.
The general rule is that an appellate court should not disturb a jury verdict and substitute its judgment without some legally compelling reason. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61 (1996). As propounded in Horton v. Union Light, Heat & Power Co., Ky., 690 S.W.2d 382 (1985), in negligence cases, the jury verdict resolves any conflict in the testimony and any reasonable inferences to be drawn therefrom must be allowed in favor of the prevailing party. An appellate court must not substitute its findings of fact for those of the jury if there is evidence to support those findings.
Evidence was presented at trial from which the jury could believe, and clearly did believe as shown by its verdict, that the gas pipeline was damaged and ineffectively repaired to such an extent that WKG should have known that an explosion was reasonably foreseeable. Testimony was offered that a WKG representative was the only person who attempted to tape or otherwise repair the subject pipe during the 1978 water main project; that the pipe had been damaged and ineffectively repaired, and that the pipe was dented to such an extent that it should have been replaced rather than repaired. Testimony was offered that a damaged pipe nearby had been replaced in 1981 but the pipe at issue here, also experiencing leaks caused by corrosion, had not been replaced. The jury heard testimony that major damage had oc
Residents in the area claimed to have reported to WKG the smell of gas approximately six months before the explosions and then again several days immediately preceding the explosions. WKG allegedly investigated the odor and pronounced all to be well. Evidence was heard that holes had been drilled along the gas line in front of the destroyed homes, possibly to allow gas from corrosion leaks to escape into the atmosphere until the gas line could be repaired. Of course, snow and ice on the ground prevented the escape of leaking gas, not an unforeseeable circumstance in Bowling Green in January.
In my view, the foregoing evidence was sufficient to submit the issue of punitive damages to the jury. Even under the standard in
WINTERSHEIMER, J., joins this dissenting opinion.