Wyatt v. Johnson

DAVIS, Judge. This is an appeal from a judgment of the Circuit Court for Baltimore City. Appellant, Edeltraut Wyatt, brought suit against Duane Johnson for personal injury and lost wages arising from an automobile accident. The circuit court granted Wyatt’s motion for judgment on the issue of liability, and a jury awarded her $7000 in damages.

The court subsequently denied Wyatt’s motion for a new trial. Appellant presents five questions for our review, which we rephrase for the sake of clarity: ²⁵⁴ 1. Did the circuit court err in refusing to use an itemized verdict sheet as required by Md.Code Ann., Courts & Judicial Proceedings § 11-109? 2. Did the circuit court err in refusing to restate the collateral source instruction in response to a written question from the jury? 3.

Did the circuit court err when it struck for cause two jurors who had been evaluated or treated for carpal tunnel syndrome? 4. After the appellant inadvertently mentioned the name of an insurance carrier, did the circuit court err when it informed the jury that appellant had mentioned her own insurance company? 5. Did the circuit court err in excluding an out-of-court statement made by appellant at the time of the accident? FACTS On the afternoon of November 29, 1989, Edeltraut Wyatt left her home to go bowling.

Wyatt bowled regularly in a five o’clock league, and her usual route to the bowling alley took her through Jessup, Maryland, on Route 175. As she approached the intersection with Brock Bridge Road, a vehicle driven by Duane Johnson entered the boulevard and struck the side of her vehicle. The impact of the collision forced Wyatt’s head into the windshield. Wyatt testified, “I felt very sick and my head was hurting bad....

I felt like vomiting.” Neither party called the police. After the accident, Wyatt proceeded to the bowling alley but was too ill to bowl. The only witnesses at trial were Wyatt and Johnson. At the close of Wyatt’s case, the court granted her motion for judgment on the issue of liability under the Boulevard Rule.

The sole issue for the jury was the extent of the damages proximately caused by Johnson’s negligence. With regard to that issue, the parties stipulated to a series of medical records prepared by doctors who had examined or treated Wyatt. ²⁵⁵ Wyatt asserted that she suffered personal injury as a result of the accident, including a concussion, neck pain, back pain, and carpal tunnel syndrome. Diagnosis and treatment of those conditions included a bone scan test, a CAT scan, an EMG, nerve conduction studies, five months of physical therapy, a collar brace, a back brace, and a wrist splint. Her medical bills totalled $9,200.

Wyatt’s claim also included $8,900 in lost wages for the period from late November 1989 to early February 1990, as well as unspecified damages for pain and suffering. Johnson asserted that Wyatt was not seriously injured during the accident, and that the medical expenses incurred were the result of pre-existing conditions. In support of that theory, he presented evidence that Wyatt had been treated for headaches, shoulder problems, and neck pains prior to the accident. According to one physician, Wyatt suffered from “degenerative cervical disk disease, a pre-existing condition which is largely responsible for her discomfort.” Johnson also asserted that the physical therapy was unnecessary, and that the carpal tunnel syndrome developed in January 1990 after Wyatt fell and landed on her hands.

As we noted earlier, Wyatt’s claim for damages included $3,900 in lost wages. The exhibits admitted at trial included a “Wage and Salary Verification” form completed by Wyatt’s employer. The form states, in part, that Wyatt “has applied for benefits under the MARYLAND ECONOMIC LOSS PROTECTION LAW as a result of injuries in an automobile accident.” The employer is requested to state the dates that the employee was absent following the accident. Question five asks: “WAS EMPLOYEE PAID WAGES OR SALARY DURING THIS ABSENCE?” The nurse who completed the form checked “yes” to indicate that Wyatt had been paid, and wrote “$3,900” in the space provided for “amount paid.” Beneath the amount, someone wrote: “has to be paid to replacement.” In the midst of their deliberations, the jurors sent the following written question to the court: ²⁵⁶ On the wage and salary verification, a statement is written in after answering “yes” to number five.

We do not understand what this means. Was she paid? Did she have to give her wages to the replacement? Who wrote that in?

Over Wyatt’s objections, the court instructed the jury that they must decide the issue on the evidence presented: ... I’ll answer this question as best I can, which is, first, I cannot now go beyond this piece of paper and the evidence to give you information. In other words, to the extent that your question can be answered, the answer must come from the testimony that’s already in the case; and if it cannot be answered with that testimony or any reasonable inferences made from it, then your question, to that extent, cannot be answered. And you are not to base your verdict on guesses or conjecture.

You are to base your verdict on the instructions which I have given you, plus the evidence in the case, and nothing more. Wyatt requested, inter alia, that the court reinstruct the jury on the collateral source rule, but the judge declined to do so. Prior to trial, the parties had entered into a “high-low” agreement. The agreement stipulated that Wyatt would receive at least $7,500 but no more than $50,000, regardless of the jury’s verdict.

The jury awarded Wyatt $7,000 in damages. After her motion for a new trial was denied, Wyatt noted this appeal. LEGAL ANALYSIS I During trial, the trial judge asked both parties to prepare a suggested verdict sheet for submission to the jury. The sheet prepared by Wyatt complied with § 11-109 of the Court and Judicial Proceedings Article (CJP), which states in pertinent part: As part of the verdict in any action for damages for personal injury in which the cause of action arises on or ²⁵⁷ after July 1, 1986 or for wrongful death in which the cause of action arises on or after October 1, 1994, the trier of fact shall itemize the award to reflect the monetary amount intended for: (1) Past medical expenses; (2) Future medical expenses; (3) Past loss of earnings; (4) Future loss of earnings; (5) Noneconomic damages; and (6) Other damages.

Md.Code Ann., Courts & Jud. Proc., § ll-109(b) (1994 Supp.) (emphasis added). After hearing argument from both sides, the trial judge elected to give the jury the verdict sheet submitted by Johnson, which asked for a single figure: What, if any, damages do you award to the plaintiff? The court rejected Wyatt’s verdict sheet after noting that the cap on noneconomic damages, contained in CJP § 11-108, did not apply here due to the high-low agreement.

The court explained: That being so, the economic cap will not apply in this case. That being so, there is no reason for the jury to have to divide its verdict ... into these various components. And without the cap—I don’t know if counsel realizes it or not, but without the cap, it has been the practice of this bench—this circuit court, as far as I know, and other courts as well-—just to have a one line damage verdict---- The court also noted that Wyatt had not submitted evidence of future medical expenses or future loss of earnings. As we emphasized above, CJP § ll-109(b) clearly states that the verdict “shall” be itemized in “any action” for personal injury damages.

Wyatt contends that § 11—109(b) is mandatory rather than directory, and that the trial court committed reversible error by failing to use an itemized verdict sheet. In ordinary usage, the term “shall” is a word of command, meaning “must,” and is inconsistent with the exer ²⁵⁸ cise of discretion. Black’s Law Dictionary 1375 (6th ed.1990). As a general rule, we presume that the legislature used the term in its usual and natural meaning unless there is something in the legislation to indicate otherwise.

Maryland Medical Service v. Carver, 238 Md. 466, 479 , 209 A.2d 582 (1965). It is well settled, however, that the use of the term “shall” will sometimes be construed as merely permissive or directory. Hitchins v. Mayor of Cumberland, 215 Md. 315, 323 , 138 A.2d 359 (1958); Resetar v. State Bd. of Education, 284 Md. 537, 547-49 , 399 A.2d 225 , cert. denied, 444 U.S. 838 , 100 S.Ct. 74 , 62 L.Ed.2d 49 (1979). The question of construction turns upon the intent of the legislature.

As Chief Judge McSherry observed in Upshur v. Baltimore City, 94 Md. 743 , 51 A. 953 (1902): [M]ere words do not control. The whole surroundings, the purposes of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than from another, and the cardinal rule that seemingly incongruous provisions shall be made to harmonize rather than conflict ... must all be considered in determining whether particular words shall have a mandatory or directory effect ascribed to them. Id. at 757 , 51 A. 953 (citation omitted). See also Resetar, 284 Md. at 547-49 , 399 A.2d 225 .

The Court of Appeals has variously said that “shall” will not be construed as mandatory in cases where that construction would produce an impractical result, Hitchins, 215 Md. at 323 , 138 A.2d 359 , or would otherwise defeat the broader goals embodied in a particular law. See Maryland State Bar Ass’n v. Frank, 272 Md. 528, 533 , 325 A.2d 718 (1974); State v. Musgrove, 241 Md. 521, 532 , 217 A.2d 247 (1966). Moreover, whether a statute is considered mandatory or directory must be ascertained from the provisions of the statute itself, and a construction that is internally inconsistent must be avoided. Blumenthal v. Clerk of the Circuit Court, 278 Md. 398, 408-09 , 365 A.2d 279 (1976).

See also Maryland Medical Service, 238 Md. at 480-82 , 209 A.2d 582 . ²⁵⁹ In the case sub judice, the pertinent statute states that the trier of fact “shall itemize the award” as part of the verdict in “any action” for damages resulting from personal injury. CJP § ll-109(b). Johnson contends that the sole purpose to be served by the itemization of awards is to insure that noneconomic damages do not exceed the cap. The statute itself suggests otherwise.

In cases where the award includes future economic damages, for example, the court or the health claims arbitration panel may order that those damages be paid “in the form of annuities or other appropriate financial instruments,” or in periodic payments “consistent with the needs of the plaintiff.” CJP § ll-109(e)(l). In reviewing the legislative history, we note a broader purpose behind the enactment of the cap on noneconomic damages. The relevant documents include the Report of the Governor’s Task Force to Study Liability Insurance (Dec.1985) (the Task Force Report). See Murphy v. Edmonds, 325 Md. 342, 368-70 , 601 A.2d 102 (1992); United States v. Streidel, 329 Md. 533, 546-50 , 620 A.2d 905 (1993) (discussing the legislative history of the cap).

The Task Force Report explains that the cap was intended to help insurance carriers set more accurate rates: Greater predictability of the amount and basis of awards is necessary. Economic damages for lost wages, medical expenses and other monetary losses, have finite limits and may be anticipated and calculated with some degree of certainty, whereas noneconomic damages such as pain, suffering, or dissettlement are virtually impossible to predict. Report of the Governor’s Task Force to Study Liability Insurance, at 11 (emphasis added). Even in cases where the cap is not an issue, presenting the defendant with an itemized “bill” for damages will provide the insurance industry with data which may be useful in underwriting.

An itemized verdict sheet may also have the effect of forcing the fact finder to think more carefully about each component of damages. As the Court explained in Barnes v. State, ex rel. Pinkney, 236 Md. 564, 574 , 204 A.2d 787 (1964), the word “shall” ²⁶⁰ demonstrates a mandatory intent “unless the context indicates otherwise.” There is nothing in the legislative history or the statute itself to suggest that use of an itemized verdict sheet was intended to be merely directory. In this context, the ordinary meaning of the term “shall” is consistent with the broader purposes of the cap statute, and is neither unreasonable nor impractical.

Accordingly, we hold that an itemized verdict sheet is required in all cases involving damages resulting from personal injury, regardless of the amount or categories of damages at issue. Against the possibility that we might so hold, Johnson argues that the error was not prejudicial in this particular case. In civil eases, an appellate court rarely will reverse for error below unless the error “was both manifestly wrong and substantially injurious,” and had a prejudicial effect on the outcome of the case. St. Luke Evangelical Lutheran Church, Inc. v. Smith, 318 Md. 337, 344 , 568 A.2d 35 (1990) (quoting Beahm v. Shortall, 279 Md. 321, 331 , 368 A.2d 1005 (1977)).

See also Harris v. Harris, 310 Md. 310, 319 , 529 A.2d 356 (1987). Under certain circumstances, however, prejudice may be presumed. See Safeway Stores v. Watson, 317 Md. 178, 183-84 , 562 A.2d 1242 (1989) (court wrongfully excluded a party or its representative); Harris, 310 Md. at 319-20 , 529 A.2d 356 (court wrongfully disqualified a litigant’s chosen counsel prior to trial); King v. State Roads Comm’n, 284 Md. 368, 372 , 396 A.2d 267 (1979) (significant procedural irregularity impaired or denied appellant’s full exercise of the peremptory challenge privilege). In the case at hand, we conclude that prejudice must be presumed.

At trial, counsel for Wyatt explained his objection to a one-line verdict: I believe it is clear and I believe the defendant believes that a simple one line “fill in the blank” for damages, if any, favors the defendant because it does not cause the jury to think through its award by component in arriving at a just ²⁶¹ award taking into account all the factors the Court asked the jury to take into account. 1 In light of the legislative history, we conclude that the use of an itemized verdict sheet was intended, in part, to ensure that personal injury awards are consistent with both the law and the evidence. We agree that asking the fact finder to “think through” the amount of any award, component by component, will help the jury arrive at a just and accurate award. We do not agree, however, that the failure to render an itemized verdict will necessarily favor the defendant. Rather, we think that either party may be prejudiced, depending on the facts of a particular case.

In her third assignment of error, Wyatt argues that the jury improperly considered collateral sources when considering the amount of Wyatt’s lost wages. Our consideration of that issue is seriously impaired by the lack of an itemized verdict. Had an itemized verdict sheet been used in this case, we would know how much the jury awarded for lost wages, and we would be in a better position to assess the jury’s verdict as to this issue. A comparison with our decision in Larche