January 13, 2006

Delay
Damages

The Superior Court’s recent opinion in LaRue v. McQuire, 885A. 2d 549 (Pa. Super. 2005), illustrates an interesting interplay of first impression between Rule 238, relating to delay damages, and Rule 1311.1, which permits parties to stipulate to a limit or ceilings of $15,000.00 in recoverable damages.

In LaRue, the Plaintiff sued his landlord for personal injury damages after he tripped over a loose piece of carpet as he was in the process of moving out of his apartment. In his Complaint, the Plaintiff originally demanded damages in excess of the arbitration limits, being $50,000.00. Filed in Bucks County, the matter was remanded to the compulsory arbitration list with a panel of arbitrators finding in favor of the landlord and against the plaintiff.

The Plaintiff filed a timely appeal from the arbitrators’ award and the matter was listed for trial. Prior to the matter being called for trial, the trial court ordered the parties to enter into settlement negotiations as “part of their trial preparation.” Although the matter did not settle, the parties stipulated that if the jury returned a verdict in favor of the Plaintiff, the verdict would be limited to a maximum award of damages of $15,000.00, permitting the Plaintiff to present his medical evidence through medical reports in lieu of presenting expert medical witness deposition testimony.

This procedure is permitted under Pennsylvania Rules of Civil Procedure No. 1311.1(a). The Rule requires that a Stipulation be filed with the Court 30 days in advance of the matter being listed for trial. The Rule further requires that the party presenting the reports in lieu of testimony identify every report intended to be introduced into evidence at trial.

The matter proceeded to trial with the jury, which was not informed of the Stipulation, awarding $600,000.00 in damages to the plaintiff.

With a like Stipulation filed in LaRue, the matter proceeded to trial with the jury, which was not informed of the Stipulation, awarding $600,000.00 in damages to the plaintiff. The jury’s verdict was molded by the trial court to the maximum stipulated award of $15,000.00, following which the Plaintiff moved for delay damages under Rule 238.

The Trial Court denied the Plaintiff’s Motion for Delay Damages, with the Plaintiff filing an Appeal of that Order. On Appeal, the Plaintiff argued that delay damages should have been awarded based on the jury’s $600,000.00 verdict. Plaintiff argued that delay damages should have been assessed because the Defendant never made an offer to settle the matter as required, for avoidance of delay damages, under Rule 238.

The Pennsylvania Superior Court held that the delay damages should have been awarded based upon the stipulated maximum award of $15,000.00 and not on the jury’s $600,000.00 verdict.

Determining that the issue was one of first impression in Pennsylvania, the Pennsylvania Superior Court held that the Trial Court had erred in not awarding delay damages to the Plaintiff, but that the delay damages should have been awarded based upon the stipulated maximum award of $15,000.00 and not on the jury’s $600,000.00 verdict. Finding that the Plaintiff’s damages, through his own election and for his own convenience, could not exceed $15,000.00, the Court held that there would not be any delay associated with the Plaintiff failing to recover damages in excess of that amount, and, therefore, that delay damages could not be assessed under Rule 238

Note the bittersweet taste on the Plaintiff’s tongue for this pyrrhic victory.

Questions concerning any issue of civil negligence law should be directed to our casualty litigation attorneys at www.vdc-law.com.

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