Am I Allowed To Tell The Jury How Much I Am Asking Them To Award?

October 21, 2021

In both Kentucky and West Virginia you are allowed to tell the jury how much you are claiming for past and future medical bills, lost wages, loss of earnings capacity, loss of household services, and similar economic losses. In West Virginia, however, neither you nor your attorney is allowed to tell the jury the total amount you are asking the jury to award. So, you are not allowed to tell the jury the amount that you are seeking for pain and suffering, emotional distress, loss of enjoyment of life, and other unliquidated damages. 

The law is quite different in Kentucky. Under Kentucky law you will eventually be required through answers to written questions to disclose the total dollar amount that you are seeking including claims for unliquidated damages such as pain and suffering, emotional stress, loss of enjoyment of life, and other unliquidated damages. Answering these written questions is crucial to recovering fair compensation. If damages are overstated, a jury may believe you are overreaching. If the damages are understated, you may be deprived of recovering full and fair compensation for your injuries. Having an experienced attorney is essential to answering these written questions correctly. Below is a listing of Kentucky cases that discuss this critical rule in that state.

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If the plaintiff responds to an interrogatory seeking the amount of unliquidated damages claimed, and does not supplement the response, the plaintiff’s recovery is limited to the amount stated in the last response. If the plaintiff does not respond to the interrogatory, the plaintiff is not entitled to an instruction on unliquidated damages. The purpose of the rule requiring disclosure through interrogatory answers the unliquidated damages sought is to allow a party to discover the amount an opposing party is seeking for unliquidated damage claims. 

One purpose of the rule requiring disclosure through interrogatory answers of the amount of claimed unliquidated damages, and of other discovery rules, is to eliminate or significantly reduce the element of surprise at trial. The trial court appropriately exercised its discretion when dismissing plaintiff’s personal injury complaint for failure to answer interrogatory regarding amount of claimed unliquidated damages. Even though plaintiffs made a motion for leave to amend their answers, while trial court had discretion to hear the motion for leave to amend, it was not required to grant it. Greer v. Hook, 378 S.W.3d 316 (Ky.App. 2012)

The failure of a personal injury plaintiff, in an action arising from automobile accident, to specify or answer as to the specific amounts of unliquidated damages sought in response to written interrogatory, following entry of default against defendant on liability issue, amounted to effective answer that plaintiff’s claim for unliquidated damages was zero. 

The purpose of the rule providing that a party against which a claim for unliquidated damages is made may obtain information as to amount claimed by interrogatories is to allow the party to discover the amount an opposing party is seeking for unliquidated damages claims. The rule providing that a party against which claim for unliquidated damages is made may obtain information as to the amount claimed by interrogatories is to be strictly construed so as to put the burden on the claimant to submit amount of unliquidated damages in answers to written interrogatories. Tennill v. Talai, 277 S.W.3d 248 (Ky. 2009)

In action for negligence, trial court had discretion to consider plaintiff’s motion for leave to file belated answers to interrogatories concerning the amount claimed for unliquidated damages, even though trial had begun, and defendant had filed a motion to exclude evidence of damages. 

Trial court has discretion during course of trial to determine whether it will allow plaintiff to supplement answers to interrogatories concerning amounts claimed as unliquidated damages and, thus, alter last amount stated as unliquidated damages. 

If a party fails to timely answer or to timely supplement answers to interrogatories concerning a claim for unliquidated damages, and that party also fails to seek leave of the court during trial to file an untimely answer or an untimely supplemental answer to those interrogatories, the trial court is precluded from instructing the jury on an award for any claim of unliquidated damages in excess of the last amount stated in the answers to the interrogatories. Prater v Castle, 139 S.W.3d 921 (Ky. App. 2003)

If the plaintiff responds to an interrogatory as to the amount of unliquidated damages claimed and does not supplement the response, the plaintiff’s recovery is limited to the amount stated in the last response. If the plaintiff does not respond to the interrogatory, the plaintiff is not entitled to an instruction on unliquidated damages.

Even if trial court erred in giving separate instructions on past and future pain and suffering, presumption of prejudice was rebutted, and error was rendered harmless, by fact that total amount awarded for pain and suffering, both past and future, was less than amount claimed by plaintiff for “pain and suffering” in response to interrogatory.

Damages instruction allowing jury to award up to $150,000 for future pain and suffering in negligence action against van driver and employer did not authorize a verdict in excess of the “amount claimed” in the response to interrogatories, even though interrogatories failed to specifically itemize category for “future” pain and suffering, given that motorist’s response to interrogatories adequately informed van driver and employer of the “amount claimed” in unliquidated damages.

Purpose, and only requirement, of rule sanctioning a party for failing to respond to interrogatory requesting amount claimed as unliquidated damages by precluding claim for such damages at trial, is that information be furnished as to the “amount claimed” in unliquidated damages, not an itemization of each category of unliquidated damages for which that amount is claimed.

A request for a categorization of damages is not within the requirement of rule sanctioning a party for failing to respond to interrogatory requesting amount claimed as unliquidated damages by precluding claim for such damages at trial. Thompson v. Sherwin Williams Co., Inc., 113 S.W.3d 140 (Ky. 2003)

A pedestrian was precluded from recovering unliquidated damages for lost wages, past and future pain and suffering, and past and future medical bills, in personal injury action against property owner, in excess of the damages last claimed in pedestrian’s answers to interrogatories, where pedestrian violated trial court order requiring claims for damages to be exchanged with opposing counsel and filed in the record no later than ten days before trial, because the supplemental damages claims were not filed until five days before trial and were not received by property owner until the day before trial, and pedestrian did not bring a motion for leave for a late filing of the trial-compliance nor a motion for leave to file supplemental answers to interrogatories, though pedestrian’s answers to interrogatories had stated that pedestrian would supplement, before trial, her claims for unliquidated damages.

The role of the rule limiting a plaintiff to recovering the amount of unliquidated damages last stated in an answer to interrogatories is to provide notice of the damages at stake; circumvention of this rule reduces the likelihood of case settlement. LaFleur v. Shoney’s, Inc., 83 S.W.3d 474 (Ky. 2002)

Error in admitting evidence of plaintiffs claim of damages for pain and suffering, future medicals, lost wages, and impairment of earning power and instructing the jury on the same was not harmless, in personal injury negligence action, where plaintiff failed to provide any amount for her unliquidated damages claims in response to defendant’s discovery requests.

Rule of civil procedure governing claims for relief implies that a plaintiff has the right to supplement her answers to defendant’s interrogatories concerning claims for unliquidated damages.

Any attempt to supplement answers to interrogatories after trial has commenced is not seasonable, although nothing in the rules precludes a trial court from entertaining a motion to supplement answers to interrogatories after trial has commenced.

Although trial court had to sanction plaintiff, for failing to respond to interrogatory that requested amounts of claimed unliquidated damages, by precluding her from claiming such damages at trial, better practice would have been for plaintiff to seasonably supplement her answers to interrogatories, or, after a seasonable time had expired, to move the trial court to allow her to supplement her answers.

By omitting any amount for damages other than her medical expenses in response to interrogatory requesting identification of each item of damages, plaintiff effectively stated that her claim for unliquidated damages for pain and suffering, future medicals, lost wages, and impairment of earning power, which were all included in the complaint, was nothing, and thus, plaintiffs claim for unliquidated damages at trial could not exceed $0.00, in plaintiff’s personal injury negligence action.

The purpose of the rule, sanctioning a party for failing to respond to interrogatory requesting the amount claimed as unliquidated damages by precluding claim for such damages at trial, is to allow a party to discover the amount an opposing party is seeking for unliquidated damages claims, not to apprise a party of the nature of an opposing party’s claims for unliquidated damages. Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999)

Plaintiffs’ failure to specify the amount sought for permanent impairment to earn money in response to defense interrogatory, which clearly requested information regarding all damages sought, barred recovery of such damages. Bums v. Level, 957 S.W.2d 218 (Ky. 1997) 

CR 8.01(2) prevents the court from awarding an insured additional sums to reimburse him for expert witness fees, long distance telephone expenses, and lost earnings incurred by him in his investigation and defense of a malpractice claim where the insured did not claim the expenses in answering interrogatories served by the insurance company in an action brought by the insured for reimbursement. National Fire Ins. Co. v. Spain, 774 S.W.2d 449 (Ky.App. 1989