                          STATE OF WEST VIRGINIA

                        SUPREME COURT OF APPEALS


                                                                            FILED
Lindsey M. Arthurs,
                                                                        March 7, 2014
Defendant Below, Petitioner                                              released at 3:00 p.m.

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

vs) No. 13-0089 (Monongalia County 10-C-743)                              OF WEST VIRGINIA


Eilene R. Pownell,

Plaintiff Below, Respondent


                            MEMORANDUM DECISION

       Petitioner Lindsey M. Arthurs, defendant below, appeals from the order of the
Circuit Court of Monongalia County entered December 13, 2012, that granted a new trial
on damages. The petitioner is represented by W. Gus Saines of McDermott &
Bonenberger, PLLC. The respondent, Eilene R. Pownell, is represented by Christopher
M. Wilson.

       This Court has considered the parties’ briefs, the record presented upon appeal, the
arguments of counsel and the applicable law. The facts and legal arguments are
adequately presented. Upon consideration of the standard of review, and the foregoing,
the Court finds the circuit court committed reversible error because the circuit court
abused its discretion in granting the respondent’s motion for a new trial. This case
presents no new or significant questions of law. Furthermore, for reasons set forth
herein, this case satisfies the limited circumstances requirement of Rule 21(d) of the
Rules of Appellate Procedure. For these reasons, a memorandum decision is appropriate
under Rule 21 of the Revised Rules of Appellate Procedure.

       On October 15, 2009, at the entrance ramp to I-79 in Westover, Monongalia
County, the car operated by the petitioner struck the rear of the car driven by the
respondent. At the time of the impact the respondent’s car was stopped at the end of the
entrance ramp because of heavy traffic. The impact forced the respondent’s car to travel
out into the lanes of traffic, facing the oncoming traffic. The respondent was taken by
ambulance to Ruby Memorial Hospital where she was evaluated and treated.

       Because the respondent’s shoulder injury did not respond to non-surgical
treatment, she underwent surgery on February 5, 2010. As part of her recuperation from
this surgery, the respondent participated in a prescribed physical therapy regiment.
Despite this surgery, the respondent continued to experience pain and limited range of
motion in her arm, due to scar tissue that had formed following the surgery. A second

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surgery was performed on October 19, 2010, to remove this scar tissue and the adhesions
that developed as a result of the first surgery.

        The respondent filed suit in 2010. The petitioner denied that the respondent’s
shoulder injuries were a direct and proximate result of the automobile accident. The
petitioner further argued that the respondent’s own acts were comparatively negligent.
Discovery was undertaken, and this matter was set for trial on June 27, 2012. In a pre­
trial order entered on January 5, 2012, the circuit court noted that “the Defendant
[petitioner herein] believes that the injuries alleged by the Plaintiff [respondent herein]
may not be the result of the subject motor vehicle accident.”

       The respondent presented evidence that she had incurred special damages for
treatment of her injuries in the amount of $62,236.21 and had lost wages in the amount of
$5,710.43 for her time off from work recuperating from the two surgeries. The petitioner
did not contest the reasonableness and necessity for the respondent’s medical treatment,
but argued that the respondent’s injuries were the result of a pre-existing shoulder injury
and not a direct and proximate result of the automobile accident. The petitioner and
respondent each presented medical evidence that supported their contentions.

       The case was submitted to the jury with no objection to the jury instructions. On
June 28, 2012, the jury awarded the respondent $50,500.00, representing $38,000 in
special damages for her medical care and lost wages, and $12,500 in general damages for
pain, suffering, mental anguish and loss of enjoyment of life.1 The jury also apportioned
negligence to each party, finding the petitioner eighty percent responsible and the
respondent twenty percent responsible for this automobile accident.

        After trial, and pursuant to Rule 59 of the West Virginia Rules of Civil Procedure,
the respondent moved for a new trial on damages, arguing that the jury did not award
sufficient damages to fully compensate her for her losses. The petitioner objected,
arguing that the jury had weighed the evidence and awarded that amount which was
attributable to the accident. The circuit court ordered a new trial, finding that the jury
verdict was insufficient. The order stated:

              The Court notes that even if the jury considered only the first
              surgery to be necessary and related to the accident, the
              medical specials and lost wages associated only with it
              amount to approximately $46,000—more than the $38,000
              awarded by the jury. Importantly, the Defendant did not
              contest the amount of the medical bills or dispute Mrs.
              Pownell’s lost wages related to the first surgery.”

       1
        The respondent’s husband also asserted a claim for loss of service and
companionship of his wife. The jury awarded him no damages.
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The petitioner appealed this order.

              In terms of our standard of review of the grant or denial of a new trial, we
have held:

                     This Court reviews the rulings of the circuit court
              concerning a new trial and its conclusion as to the existence
              of reversible error under an abuse of discretion standard, and
              we review the circuit court’s underlying factual findings
              under a clearly erroneous standard. Questions of law are
              subject to a de novo review.

Syl. pt. 1, The Burke-Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105, 736 S.E.2d 338
(2012).

             Furthermore, in Syllabus point 5, Orr v. Crowder, 173, W. Va. 335, 315
S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct.384, 83 L.Ed.2d 319 (1984), we
held:

                      In determining whether there is sufficient evidence to
              support a jury verdict the court should: (1) consider the
              evidence most favorable to the prevailing party; (2) assume
              that all conflicts in the evidence were resolved by the jury in
              favor of the prevailing party; (3) assume as proved all facts
              which the prevailing party’s evidence tends to prove; and (4)
              give to the prevailing party the benefit of all favorable
              inferences which reasonably may be drawn from the facts
              proved.

              After carefully examining the trial record and evidence admitted before the
jury, as well as the arguments of the parties at trial, we find that the evidence at trial
reasonably supports the jury’s verdict. While the petitioner did not contest the amount of
the damages claimed by the respondent as being unreasonable or unnecessary, the
petitioner did question throughout the trial whether the damages were the result of the
accident. The circuit court’s order appears to suggest that the petitioner acquiesced or
agreed to the cost of the medical treatment and lost wages; however, we find that the
petitioner argued that the damages sought were not the result of the accident.

              These conflicting views of the necessity for the medical treatment as related
to the accident were a matter for the jury to decide. The fact that the verdict was for less
than the amount requested by the respondent does not render the verdict inadequate. The
jury heard, weighed and analyzed the evidence and returned a verdict in favor of the

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respondent, but for less than she sought. It was an abuse of the circuit court’s discretion
to grant a new trial on damages. For these reasons, the order of the Circuit Court of
Monongalia County entered December 13, 2012, is reversed.

                                                                                Reversed.

ISSUED: March 7, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Margaret L. Workman
Justice Allen H. Loughry II




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