*3 affirm. 2106. See 28 § U.S.C. MERRITT, Before WEICK and Circuit long-time employ- a Wallace Clissold was Judges, CECIL, and Judge. Senior Circuit Company ee when on Au- Kellogg of the gust 1500-pound steel bulkhead 1971 a WEICK, Judge. Circuit by the door in a boxcar owned railway The defendant appealed has from a judg- defendant, a He suffered bro- fell on him. ment favor plaintiffs of the in this per- ankle, nose, a broken foot. ken a and broken injury sonal diversity governed action hospitalized for one remained Michigan law. month, totally another disabled for and was complaint was filed the District five returned to work months. He However, Court on November the March, 1972, eventually returned and was case was not reached for trial until October which he job to the foreman’s 6,1976. The long delay reason for this does however, unable, the accident. He was appear not to be to any attributable activi- perform previ- that he had all of the duties parties, ties as the docket entries ously accomplish, and he was been able to only show complaint and provided cart which im- with a three-wheel the answer. proved job. mobility on
The ease was days by tried for three years surgery Two accident was after the District Court jury. without a At the end again feet. and required on Clissold’s One day second the Court announced hospitalized one-half later he from the bench opinion which, its on the issue of treatment of an ulcer was con- liability, deciding plaintiffs. tended, in favor of the injury. Medical resulted from day At end of permanent- the District third evidence showed that Clissold ly possible Court It is partially from the bench its also disabled. announced foot, damages may develop right he in his awarded to Wallace C. arthritis expected regain swelling ankles, and he is not full mobili- and reduced ty. Based on this evidence the mobility. In view of these facts we do Court concluded that Clissold would not be addition, shocking. find this award job, able to continue his foreman’s and that Michigan approved courts have the use of expect job most he could was a staff formula, per diem which variation of pay reduced and overtime. was used the District Court here. See Yates, supra; Pippen v. Denison Div. Abex The District following Court made the Corp., Mich.App. specific awards: suffering,
As to future we find the grossly award excessive. The Dis trict Court based its award on the same *4 $5,000 per rate of annum as was used to pretrial arrive at the pain award for and suffering. This award was based the on likely fact that will continue to pain mobility suffer and loss of for the rest shown, however, of his life. It was not that necessarily he will suffer the same level of pain, require or that he will additional hos pitalization and in the future as he surgery has past. in the possibili At most there is a ty develop that Clissold will ar traumatic thritis at some future time as a result of the accident. yet happened It has not and no means reasonable medical In appeal the defendant does not certainty. On these facts the Court acted 1, 4, contest items and 8: erroneously awarding the same annual (1) suffering Pain and for first six months $25,000. pain suffering amount for and in the future (4) Wage loss to trial 11,556. during (8) Medical and pain suffering allowed for and costs hospital 3,869. the period difficult of the few first Suffering Pain and following the accident.1 The defendant challenges as exces sive the pain awards for suffering and for The District Court made addi one period from six following months respect tional error to its award for accident ($22,500), until trial and for future pain suffering. Michigan and Under law pain suffering ($68,390). and Under Michi damages all future must be reduced to their gan law damages are excessive and unlaw value as of the Bru date of ful they when judicial shock the conscience. Inst, no v. Technology, Detroit Mich. 51 Wenk, Yates v. 311, 319, 363 Mich. 109 593, App. 1, 745, n. 599-600 & 215 N.W.2d 828, N.W.2d 831 (1974); 749 Fiting, & n. 1 v. see Currie 375 440, 453-54, pain
For suffering and Mich. 134 N.W.2d 616 peri for the od of four trial, (1965) years prior (plurality opinion). Although and one-half per year. Court awarded Bruno decision involved the breach of an During this employment contract, time Wallace liability, Clissold was hos and tort pitalized surgery for additional expressed broadly. on his feet the Court the rule Ad ulcer; a bleeding evidence ditionally, further we believe that this is the correct showed that he suffered pain approach considerable present in the case because the
1. Plaintiffs’ reliance Pippen, supra, misplaced. Pippen, unlike this case, the plain- tiff suffered total loss of a limb. statute, interest-on-judgment damages law Under 600.6013, 27A.60132, consequences injury of an are § M.C.L.A. recov M.S.A. § there only degree erable where is “such a mandates that interest run from the date of probability consequences such as to complaint.3 applica- The certainty amount reasonable that prevents tion of Bruno rule unwar- thus [a] they City . . .” will result Kellom v. ranted double recoveries. Ecorse, 303, 308, Mich. Applying rules, noting (1951), (quoting Brininstool Court, other error of the we believe 172, 180, Rys., Michigan United permissible maximum (1909); accord, N.W. Gilson suffering under the facts Bronkhorst, *, 154 n. (including case the award for the first six n. We believe months) $70,445. This accounts the District Court’s award of lost fu- necessary discounting to the date wages aspects ture in certain based on interest, complaint, as well as speculation so that undue loss was not up entry judgment by time of the certainty.” in all “a reasonable this Court. primary basis for the District Court’s award was its conclusion that Clissold Wages Lost would be to continue his foreman’s unable job. The defendant does time of trial not contest Yet at the Clissold was in past award for the wages, complains position but fact the same serving in foreman’s *5 only about the award for the loss that he to the accident. It prior held is true earning capacity. In arriving at its award that made Kellogg had certain accommoda- $143,684.83 (valued job requirements as of date of tions in the to enable Clis- judgment), compared It is Court sold to continue. also true that Kel- earning another, Clissold’s future as a capacity logg seeking fore- had been more suit- man, job, able, old position that of a staff em- for It by Clissold. was no job ployee, the certain, however, to which the reasonably Court assumed means that Clissold would actually be posi- transferred but be demoted to a staff would Indeed, had not been so solely disability. transferred. The Court tion because of his assumed that history receiving jobs Clissold’s foremen their several other had lost wage 7.44% annual positions increases which he had transferred to and had been staff accident, received since the Kellogg would continue at because shut lower salaries down future, employee and that operations, as a one of its and not because of staff paid any physical Clissold would employees’ be than he disabilities. While 25% less paid be likely, probable, would as a foreman. it was indeed that Clis- provides: prevailing party judg- 2. The statute than the vorable to the ment, money interest shall be allowed be- judgment. then no Interest on Sec. 6013. money yond any judg- Interest shall be the written offer of settlement allowed on date action, ment recovered in a civil interest such is made. filing be to complaint calculated from the date previously that federal courts 3. We year per at the rate of unless [6%] diversity sitting Michigan required cases are judgment is rendered instru- on a written apply particular interest-on-judgment having higher ment interest rate of Lynch v. Electro Refractories & Abra statute. computed which case interest at the shall be (6th 1969) (per Corp., F.2d 363 Cir. sives specified rate in the such rate instrument if curiam). holding stemmed our earli This from legal the time the was instrument v, er in Glens Falls Ins. Co. Danville decision executed. In no case shall the rate exceed 1964), Motors, Inc., F.2d per year judgment after the date is en- 7% although requires post- that 28 U.S.C. § judge, tered. if a discretion of the interest, judgment prejudgment the matter of bona fide written offer of in a civil settlement cases, diversity governed, in interest is state party action based on tort is made Co., against subsequently law. See Klaxon Co. v. Stentor U.S. whom the (1941) 85 L.Ed. 61 S.Ct. rendered and the offer of settlement is sub- stantially substantially identical or more fa- plaint would some sold suffer loss of future until the opinion, earn- we ings, it was not a certainty reasonable permissible believe that the maximum immediately Clissold would be demoted wages, to a all including wages lost position, staff trial, $83,398.41. prior Court as- lost sumed. For similar reasons the Court’s as-
sumption that Clissold would suffer an im- Lost Overtime mediate, permanent wages 25% reduction in The District Court made substan inwas error. As of the trial date four $13,142 tial awards for lost overtime: years after the accident again Clissold was trial, prior overtime lost performing his duties as foreman and had past lost future overtime. The award for yet been demoted or transferred. supported overtime lost is in the record and We quarrel have no with the District except is not in error that the Court failed wage Court’s inclusion of an annual in to discount the award to reflect its value as factor, including crease living cost of ad complaint. of the date of the justments, because we believe that Michi The award for lost future overtime gan permit courts would such inclusions. First, however, presents greater problems. McClain, See Routsaw v. agree disability likely we that Clissold’s will N.W.2d 123 The factor used was overtime, cause a reduction in and we note based on past experience Clissold’s and is consistently to the accident he supported in the record. opportunities availed himself of to work erred, however, The Court both in its proof supports overtime. The also the in reducing method of present the loss to val- Kellogg ference that will continue to offer ue, and in failing to reduce it to the value problem overtime in the future. The as of the date again that here the District Court assumed The proper Bruno, method was stated in necessarily that Clissold would be transfer supra, 600-01, 51 Mich.App. at job red a staff where there would be no 745, 749, as follows: opportunities. overtime This was of course (1) On the past experience, basis of *6 possible reasonably but not certain. Fur project anticipated compensa- level of ther, that ex the District Court assumed persons tion similarly situated to the [for cept for the would have accident Clissold .; plaintiff] . . continued to work the same amount of (2) past On the basis experience, .overtime, retirement, age and until as project the anticipated earnings plain- he age had worked at 40. We believe that premised tiff good-faith attempts on unlikely. this is The Court also overlooked plaintiff’s part employment to secure Kellogg requires the fact that workers to profession; chosen take some of their earned overtime com as (3) Subtract anticipated earnings of pensatory time off rather than as overtime years for each of the from pay. Finally, we note that Court used anticipated salary he would have received calculation, an one incorrect method of in the corresponding year; employed which is similar to that which was (4) Reduce the year difference for each computing wages. The cor lost future to its worth as of the date of the Bruno, supra. rect method is stated in complaint; noted, Considering the and also errors (5) Take the sum of properly miti- accounting required discounting gated and figures. reduced entry judg- interest to the date of the
Taking into account the court, errors we ment of this we believe that again noted and accounting for inter permissible maximum award for lost over- est from the time, time of the filing future, $119,312.50.4 of the com- past and argued by payments. The defendant has that the awards for duced tax No income wages lost future Michigan appellate and overtime should be re- decision has been found Corp.,
Loss of
Jiffee
Consortium
Chemical
591 F.2d
366-67
2106;
1978);
6A
U.S.C. §
The District Court
awarded
1)
Moore’s Federal Practice
at 59-
59.05[3]
$30,100
Ingebord Clissold
for loss of consor
68. Where remittiturs or reductions
tium. To establish a loss of consortium
clearly
showing
there must be a
erroneous awards of excessive dam-
of harm to the
relationship
marital
caused
injury
ages
appellate
they
are
an
court
ordered
Jones,
Washington
Wallace Clissold.
air,
regarded
are not
as taken out of thin
as
There
the dissent
seems
indicate.
showing
must be a
of harm to the incidents
relationship,
including society, com
MERRITT,
Judge, dissenting.
Circuit
services,
panionship,
Id.,
and affection.
Montgomery
respectfully
I
Stephan,
opin-
dissent. The Court’s
ion,
In
proof
though purportedly
this case the
based on
established that Wallace
law,
Clissold had be
pulls
arbitrary figures
from thin air
as
come irritable on occasions and that he was
the maximum allowable award for each
perform
unable to
satisfactorily certain
damages.
figures
item of
These
reflect nei-
household duties. While we believe that
proof
ther the
in the record nor the liberali-
this evidence
support
was sufficient
an
ty
damage
courts towards
consortium,
award for loss of
we also be
Although
awards.
I believe the District
lieve that
the amount of the award was Court
erred in several
and that the
excessive,
shocking,
or
on these facts. See damages
result,
high
awarded were too
as a
Wenk,
Yates v.
supra.
I would
the case
remand
to the District
addition,
the Court failed to make the Court for correction of the errors and re-
required
Bruno,
discounting
supra.
under
computation of the award.
In our
permissible
the maximum
consortium,
award for loss of
after dis-
Suffering
I. Future Pain and
counting and interest
to the date of the
$68,-
$15,050.
opinion,
The Court claims that the award of
suffering
390 for future
is exces
of the District Court
less in the
sive because Clissold will suffer
modified
follows:
during
future than
the 41/2
277,024.91
To Wallace Clissold
$
Judge
the trial. The District
awarded dam
Ingebord
15,050.00
To
$
ages
per year.
at the
rate of
same
These amounts
hospi-
include the
award
pain,
Clissold will
some
continue to have
tal
expenses
and medical
and reflect
immobility and awkwardness. His recrea
discounting
appropriate
amounts to the
tion will be limited. The District Court
date
Although the de-
likely
found that
it is
that he will have
*7
fendant did not raise
point
every
in
arthritis.
appropriate
item, we view the District
improper
Court’s
discounting
plain
error.
Michigan courts have seldom reduced
The amounts before stated also reflect the
damage
suffering.1
pain
awards for
and
addition of
entry
interest to the date of the
Denison,
Recently,
Pippen
in
v.
66 Mich.
judgment
of
of this Court.
664,
(1976),
App.
As
Court
a
approved
District Court is
Drayton
damage
affirmed. See
v.
67-year-old
award to a
man for the
754,
supports
(1955); Day
Toyer,
which
this view. Where state law is
N.W.2d 220
v.
adjust-
189,
74, (1954);
silent we have refused to make such an
v.
67 N.W.2d
Torma
ment,
468,
Co.,
at least at
Montgomery
middle income levels. Kalavi-
336 Mich.
Ward &
ty
States,
809,
v.
House,
United
584 F.2d
(1953);
336 Mich.
Vink v.
1978) (citing cases).
292,
(1953); Denny
Garavag
loss
er for such future
must
of his arm.
pain
(1)
suffering,
prove
award was for
and
or
that he has
a loss of
suffered
$80,000 per year
plaintiff’s
(2)
earning capacity
life ex-
and
mone-
pectancy.
(Gillis,
ality
hypothetical
specula-
reflects the
projections.
tive nature of all future
As
Wages
II. Lost Future
Chandler,
stated
Allison v.
Furthermore, the Court has held the *8 proof proof to a recovery wage burden of for The of future loss was not too of lost earning capacity future speculative more strin- and the Court was not District gent Michigan than requires. law The clearly wrong estimating To recov- the loss. 490, 293, (1958); 2. Coger See note 4 infra. 297-98 v. Co., 113, Mich.App. Mackinaw 210 Prod. 48 Rolston, 124, Phillips supra 3. See also N.W.2d note 137 130-31 161; Buskirk, N.W.2d at Schankin v. case, evidence shows that could be Bruno Clissold’s loss formula to this it is evident great per years, as as 25 cent 21 1/2 Judge’s figure for that the District overstates adjusted by a per 7.44 cent cost of present wage annual the value of Clissold’s future living Judge’s have, increase. The appendix award loss. In the to this dissent I was “within range proof.” the of illustration, of purposes calculated Co., v. New Pierce York present Central Railroad I ar- value the Bruno method. 1969). 409 F.2d figure $130,505.55, $13,- There rived at a of some fore, I would affirm the substance of the Judge 000 less than the District awarded. loss wage earning of future ca B. Reduction to date of would, pacity. however, I re- remand for law —Michigan requires also that future computation of the award after the correc damage awards be reduced to their value as the following tion of two errors: complaint It date was filed.4 present
A. appears Method of reduction val- to that the District Court reduced process by ue.—The which to only award its value as of the of date $143,684.83 at figure judgment. Court arrived of as value present of Clissold’s of loss future
wage earning capacity is
unclear.
somewhat
III. Lost Overtime
It
apparent
that the District Court based
this
agree
I
Court’s
its calculations on a
determination
damages to the extent
element of
“average”
weekly wage
Clissold’s
future
proof of loss
points
where the
out instances
year period
loss over the 21V2
would amount
would,
I
was unclear.
future overtime
$247.87.
lower court then reduced
however,
the District
the issue to
remand
“average”
this
weekly
present
loss
value
out
again pulling
figure
Court instead
as of the date of
by a formula not
of the air.
explained
opinion,
its
apparently
cal-
Loss of Consortium
IV.
present
culated
value of
aver-
Clissold’s
age
wage
annual future
Mrs.
by multiplying
loss
the award
I do not believe that
figure by
$143,-
2IV2
to arrive
for loss
consortium
as the present
684.83
have
value of Clissold’s
courts
grossly excessive.
wage
losses.
loss
reduce
reluctance to
same
displayed the
regard-
they
awards5
consortium
This method of calculating present value
view
suffering.6
pain and
ing claims for
proper
not
under
law. Accord-
I do not believe
approach,
liberal
case,
ing to the
supra,
proper
Bruno
award
would find the
Michigan court
that a
(i) compute
method is to
loss for
actual
I
affirm
Accordingly, would
excessive.
year
future, (ii)
each
in the
reduce
loss
dam-
item of
for this
award
District Court’s
value,
year
each future
to present
ages.
(iii)
take
sum of
properly
reduced
Appendix
figures.
4.
Hixson v.
APPENDIX