       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KATHLEEN KUK and DAVID KUK,
individually and as husband and wife,            No. 68617-8-1                t-.'
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                     Respondents,               DIVISION ONE                   cr.

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JASON SMITH and JANE DOE SMITH,                  UNPUBLISHED OPINION                    lO       CT
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individually and the marital community                                                  ro
thereof, and UNITED PARCEL                       FILED: July 1,2013
SERVICE, INC.,

                    Appellants.
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       Becker, J. —This appeal arises from a personal injury action after a car

collision. A jury found the two drivers equally at fault and awarded both parties

all undisputed special damages. But the jury awarded nothing in general

damages to appellant Kuk for the undisputed pain and suffering that

accompanied the injury to her hand. We affirm the order granting Kuk's motion

for a new trial on damages.

      Around 4 p.m. on May 7, 2008, Kathleen Kuk's Honda minivan collided

with a United Parcel Service delivery truck as the two vehicles attempted to pass

through an intersection in Everett, Washington. Both vehicles were damaged.

One of Kuk's fingers was broken.
No. 68617-8-1/2



       In October 2009, Kuk and her husband sued United Parcel and the driver,

Jason Smith, for negligence. United Parcel counterclaimed, alleging negligence

by Kuk resulting in the damage to the truck.

       A jury trial lasting three days was held in February 2012. Smith admitted

that his own light was red when he began his left-hand turn into Kuk's path. Kuk

testified that the light turned yellow right before she entered the intersection and

that she sped up to clear the intersection before the light turned red. But an

expert testified that the yellow and red lights at the intersection were timed

identically for cars traveling in both directions, so when the light turned red for

Smith, it was also red for Kuk. And an eyewitness testified that Kuk ran the red

light. Further, there was evidence that Kuk was holding her cell phone to her ear

at the time of the collision while she waited on hold to make a comment on the air

with a talk radio station.

       Kuk's treating physician testified that the finger injury had caused Kuk

significant pain and resulted in permanent loss of motion in her dominant hand.

Kuk and her family and friends testified that she suffered a lengthy period of

acute pain and was still unable to participate in her former hobbies because her

grip was impaired. The defendants offered no contrary medical testimony. Their

closing argument suggested that the jury award general damages, but only a

modest amount, to compensate Kuk for her noneconomic losses.

       Jurors were instructed that ifthey found either party negligent, their verdict

"must include" the opposing party's undisputed special damages: for Kuk,
No. 68617-8-1/3



$21,966.90 in medical costs and $12,000.00 in property damage; for United

Parcel, $3,910.09 in property damage. As to Kuk's claim of noneconomic

damages, the jurywas told that it "should consider" a variety of factors relating to
suffering due to her injury.

       The jury returned a verdict finding both Smith and Kuk negligent and 50

percent at fault. The jury awarded both parties their undisputed damages, but

they awarded nothing to Kuk for noneconomic damages.

       Ten days after the verdict was entered, Kuk moved for a new trial on

damages under CR 59. She argued the verdict was inadequate in light of the

uncontroverted testimony that she suffered noneconomic damages. Smith

opposed the motion. He argued that Kuk waived any objection to the inadequacy

of the award by failing to object to the verdict before the jury was dismissed. The

court concluded the lack of any general damages made the verdict inadequate

and granted Kuk a new trial on damages. The court denied Smith's alternative

argument that if a new trial was to be ordered it should be a full new trial on

liability as well. Smith appeals from the order granting a new trial.

       The decision to grant or deny a new trial is reviewed for abuse of

discretion. Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 561, 815 P.2d 798

(1991). Where, as here, the appellant seeks to set aside an order granting a new

trial, the reviewing court will require "a much stronger showing" of abuse of

discretion than is necessary to set aside an order denying a new trial. Palmer v.

Jensen. 132 Wn.2d 193, 197, 937 P.2d 597 (1997). This is because granting a
No. 68617-8-1/4



new trial "places the parties where they were before, while a denial of a new trial

concludes their rights." Baxter v. Greyhound Corp.. 65 Wn.2d 421, 437, 397

P.2d 857 (1964); Palmer. 132 Wn.2d at 197. It is an abuse of discretion to deny

a motion for a new trial where the verdict is contrary to the evidence. Palmer,

132Wn.2dat198.

       Although there is no per se rule that general damages must be awarded to

every plaintiff who sustains an injury, a plaintiff who substantiates her pain and

suffering with evidence is entitled to general damages. Palmer, 132 Wn.2d at

201. The adequacy of a verdict, therefore, turns on the evidence. Palmer. 132

Wn.2d at 201. The court agreed with Kuk that in light of the evidence she

presented, the verdict of no general damages was clearly inadequate and could

only be explained by jury passion or prejudice.

       The court's order was a straightforward application of Palmer. The two

cases are factually similar. In Palmer, the plaintiff presented uncontroverted

medical evidence that she suffered neck and back pain for over two years after

suffering a neck injury in a rear-end car collision. The jury nevertheless entered

a damages verdict that was "exactly equal to" her undisputed medical expenses,

with no general damages for pain and suffering. Palmer. 132 Wn.2d at 198-99.

The trial court denied the plaintiff's motion for a new trial. The Supreme Court

reversed, holding that the omission of general damages was contrary to the

unchallenged medical evidence. Palmer. 132 Wn.2d at 203. The court ordered

a new trial on damages.
No. 68617-8-1/5



       Here, Smith agrees with Kuk that the undisputed medical evidence entitled

her to an award of general damages under Palmer. Smith's argument to the trial

court and on appeal is that the jury's error was so obvious and so inconsistent

with Washington law that Kuk should have been required to object to the error

immediately, before the jury was excused, so that the jury could have been sent

back to deliberate again and bring in a verdict awarding general damages. Smith

asks this court to fashion a new rule holding that a party waives the right under

CR 59 to wait 10 days to move for a new trial based on verdict error when the

basis of the motion is a clear rule of controlling case law. In such cases, he

contends, it would further fairness and judicial economy to require the party to

bring the inconsistency to the trial court's attention before the jury is dismissed.

       Presently, a trial court is required by CR 49(b) to return the jury "for further

consideration of its answers and verdict" in a case where a general verdict is

inconsistent with the jury's answers to special interrogatories:

               (b) General Verdict Accompanied by Answer to
       Interrogatories. The court may submit to the jury, together with
       appropriate forms for a general verdict, written interrogatories upon
       one or more issues of fact the decision of which is necessary to a
       verdict. . . . When the general verdict and the answers are
       harmonious, the appropriate judgment upon the verdict and
       answers shall be entered pursuant to rule 58. When the answers
       are consistent with each other but one or more is inconsistent with
       the general verdict, judgment may be entered pursuant to rule 58 in
       accordance with the answers, notwithstanding the general verdict,
       or the court may return the jury for further consideration of its
       answers and verdict or may order a new trial. When the answers
       are inconsistent with each other and one or more is likewise
       inconsistent with the general verdict, judgment shall not be entered,
       but the court shall return the jury for further consideration of its
       answers and verdict or shall order a new trial.
No. 68617-8-1/6



But the rule only applies where the jury's answers "are inconsistent with each

other." CR 49(b) (emphasis added). This lack of internal consistency or

coherence among the jury's various determinations is unlike the kind of external

inconsistency with controlling case law that Kuk argued in her motion for a new

trial.


         When a jury verdict is internally inconsistent under CR 49, a party who

does not object immediately will be held to have waived the right to challenge the

verdict through a motion for a new trial under CR 59. Gierde v. Fritzsche. 55 Wn.

App. 387, 393-94, 777 P.2d 1072 (1989). review denied. 113 Wn.2d 1038 (1990).

In Gierde. the jury found against the plaintiff on her negligence claim. The

instructions did not tell the jury to stop at that point, as they should have. Gierde.

55 Wn. App. at 390. The jury went on to attribute 55 percent fault to the

defendant and 45 percent to the plaintiff. Gierde. 55 Wn. App. at 392. The trial

court entered judgment on the verdict for the defendant. The plaintiff appealed,

arguing that the answers attributing fault to both parties were irreconcilable with

the verdict finding that the defendant was not negligent. This court held that

under CR 49, a failure to object to inconsistency in the verdict before the jury is

discharged waives any objection on appeal. "The situation is analogous to the

failure to object to evidence or a jury instruction." Gierde. 55 Wn. App. at 394.

         Smith argues that the rule of waiver established by Gierde should be

extended beyond cases of internal inconsistency, which are covered by CR 49,

to cases where the verdict is inconsistent with the law in a way that is
No. 68617-8-1/7



immediately recognizable.

       There are a number of serious flaws in the new rule Smith proposes.

First, it would require courts to decide which principles of law are to be deemed

"immediately recognizable." Such a standard would be imprecise in its contours

and difficult to apply. The new rule would also require counsel to have the full

breadth of case law on verdicts available for instant recall when a verdict is

announced, without recourse to legal research after the jury is dismissed—an

unrealistically high standard of performance.

       Another problem with Smith's proposal is that he would put the burden of

objecting on only one party—Kuk, in the present case. But if the purpose of the

proposed rule is to spare the expense of a new trial, then both parties are equally

disadvantaged, and both should be expected to react immediately when the

verdict is announced.

       Finally, Smith's proposed new rule is inherently unfair as it would be

applied in this case. When a jury fails to award general damages after hearing

undisputed evidence that would justify an award, it is reasonable to infer that the

jury was affected by passion or prejudice. As the trial court recognized in the

order granting a new trial, the jury was likely prejudiced against Kuk. Her

testimony that the light was still yellow when she started through the intersection

was severely undermined, and the evidence that she was engaged with her cell

phone at the time of the collision could hardly have endeared her to the jury.

Smith's proposed rule would require that the factual determination of general
No. 68617-8-1/8



damages be sent back to a jury that has already manifested its prejudice against

the claimant.

       In summary, Palmer controls. Smith does not make a persuasive case for

extending the waiver rule in Gierde beyond the parameters of CR 49. The trial

court did not abuse its discretion in granting Kuk a new trial.

       Smith argues alternatively that if there is to be a new trial, it should be on

liability as well as damages. His theory is that the jury heard more evidence of

Kuk's negligence than of his own, so it must have been a compromise verdict. In

other words, he theorizes that some jurors probably agreed to find him negligent

only because others agreed to limit Kuk's damage award to her economic

damages. Smith relies on Cvrus v. Martin. 64 Wn.2d 810, 394 P.2d 369 (1964),

and Myers v. Smith. 51 Wn.2d 700, 321 P.2d 551 (1958). In these cases, the

court held that where a claim of inadequate damages is coupled with a close

case on liability, justice requires a new trial upon the entire case.

       Cvrus and Myers do not support Smith's argument. To begin with, it was

not a close case on Smith's liability. Smith admitted beginning his left turn after

the light turned red. He failed to notice Kuk's minivan speeding toward him

though it was daylight and his view was unobstructed. The jury was instructed

that the "primary duty" of avoiding collisions "rests upon the driver turning to the

left, which duty must be performed with reasonable regard to the maintenance of

a fair margin of safety at all times."

       In addition, Cvrus and Myers were premised on the old contributory


                                             8
No. 68617-8-1/9



negligence scheme under which any negligence by a plaintiff provided a

complete defense. The adoption of the comparative negligence scheme and the

use of special verdict forms has effectively eliminated the concern that juries,

when shown negligence by both parties, will fashion their own comparative

negligence scheme by finding liability on the part of the defendant but awarding

lowdamages. Mina v. Boise Cascade Corp.. 104 Wn.2d 696, 707, 710 P.2d 184

(1985), citing Crawford v. Miller. 18 Wn. App. 151, 566 P.2d 1264 (1977). Here,

because the jury was instructed on comparative negligence, liability was not an

all or nothing proposition. There is no reason to suspect that the 50/50 decision

on liability was anything but a true verdict. The zero general damages award

may well be evidence of juror prejudice against Kuk, but it is not evidence that

the jurywas motivated to falsely attribute equal liability to Kuk's adversary. The

trial court did not abuse its discretion by ordering a new trial limited to damages,

as was done in Palmer.

       Finally, Smith asks that if there is a new trial on liability, the trial court

should be instructed to reverse the sanctions that were imposed for delay by the

defendants in providing requested discovery. Because we do not order a new

trial on liability, it is unnecessary to address this issue. In any event, we see no

abuse of discretion. The trial court was aware of its obligation to impose "the

least severe sanction that will be adequate to serve the purpose." Wash. State

Physicians Ins. Exch. & Ass'n v. Fisons Corp.. 122 Wn.2d 299, 355-56, 858 P.2d

1054 (1993); Burnet v. Spokane Ambulance. 131 Wn.2d 484, 494-96, 933 P.2d
No. 68617-8-1/10



1036 (1997). The sanctions imposed were mild compared to the extreme

sanctions sought by Kuk, and there is no reason to believe they unduly

prejudiced the presentation of the defense case.

      Affirmed.




WE CONCUR:




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