Date: 12-16-2003

Case Style: Doall Louisville Company v. Frank Ferrante and Huff Carbide Tool, Inc.

Case Number: 2001-CA-000848-MR

Judge: Emberton

Court: Commonwealth of Kentucky Court of Appeals

Plaintiff's Attorney:

Bill V. Seiller, Kyle Ann Citrynell and Michael C. Bratcher of Seiller & Handmaker, L.L.P., Lousiville, Kentucky

Defendant's Attorney:

Robert B. Stopher of Boehl, Stopher & Graves, L.L.P., Louisville, Kentucky

Description:

This is a products liability case with a lengthy procedural history. The issues on appeal concern the apportionment of liability, post-judgment interest, and a penalty assessed under KRS2 26A.300.

FACTS On October 14, 1991, Frank Ferrante sustained an eye injury from a shattered cutting tool similar to a drill bit, commonly referred to in the industry as an end mill. It is significant to note that the end mills are manufactured from blanks, which are metal rods made from a hard alloy. Ferrante, a tool and die maker, was leaving his shop for lunch when the accident occurred. As he walked past a milling machine being operated by his father a brand new end mill broke causing injury to Ferrante's eye.

Ferrante filed the instant action against Huff Carbide Tool, the manufacturer of the end mill, and against DoAll Louisville Company, the seller of the end mill, alleging

1 Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

2 Kentucky Revised Statutes.

negligence, strict liability and breach of implied warranty of merchantability. In May 1993, Ferrante filed an amended complaint against Rogers Tool Works, Inc., alleging that Rogers manufactured the blanks used in making the end mill. Huff and DoAll then filed third-party complaints seeking indemnity from Rogers. DoAll also filed a third-party complaint against Huff Carbide seeking common-law indemnity based in part upon an implied warranty of merchantability. Prior to trial, Ferrante's claim against Rogers was dismissed based on the statute of limitations. DoAll's and Huff's claims against Rogers were also dismissed based on the trial court's conclusion that common-law indemnity, like contribution, had been abolished by the adoption of comparative fault.

TRIAL COURT PROCEEDINGS

At trial, by way of special interrogatories, the jury found that Rogers had not manufactured the blanks, and that Huff and DoAll had each sold the end mill in a defective and unreasonably dangerous condition, and that it was this condition that caused Ferrante's injury. Ferrante, the jury concluded, knew or should have known, on or before the date of the injury that the end mill was subject to shatter. As instructed, the jury did not respond to the next two interrogatories regarding whether Huff and DoAll failed to provide adequate warning. As to the negligence instruction, it found that neither Huff nor DoAll was negligent. On the other hand, it found that Ferrante failed to use ordinary care for his own safety, which was a substantial factor in causing his injury. Based upon its finding that the defective and dangerous condition of the end mill existed at the time Huff and DoAll each sold it, and that such condition was a substantial cause of Ferrante's injury, it awarded Ferrante $471,343 under the theory of strict liability. The jury apportioned the percentage of fault: 70% to Huff; 10% to DoAll; and 20% to Ferrante ($329,940.10 against Huff and $47,134.30 against DoAll).

In a separate instruction under the theory of implied warranty the jury found that DoAll, as the seller of the end mill to Ferrante, breached the implied warranty of merchantability, for which it awarded Ferrante $471,343. However, following arguments in support of motions for judgment notwithstanding the verdict the court applied to the jury award Ferrante's 20% fault factor, reducing the breach of merchantability award to $377,074.40.

Although the jury made damage awards under each of two theories of recovery, the court provided that Ferrante's total recovery could not exceed $377,074.40.

FIRST APPEAL Huff appealed the judgment and DoAll and Ferrante cross-appealed. Ferrante contested the reduction of his judgment against DoAll for breach of warranty. DoAll, in its cross-appeal, contended that common-law indemnity survived the allocation of fault statute and that it was entitled to indemnity from Huff. Huff contended that it bought a defective blank from Rogers, but that it was precluded from proving that claim to the jury. This court affirmed in all respects except as to the twenty percent reduction of the award against DoAll for breach of warranty.

In regard to DoAll's claim for indemnity on the strict liability claim, this court held that KRS 411.182(1) precludes contribution or indemnity between the parties on the claim of strict liability. As to DoAll's claim for indemnity from Huff on the breach of warranty claim we stated: DoAll was adjudged liable for breach of warranty and seeks indemnity from Huff thereupon. We do not believe DoAll is so entitled. Indemnity is appropriate where one party has incurred liability because of his position in law, resulting from the negligent act of another. See Brown Hotel Company v. Pittsburgh Fuel Company, Ky., 224 S.W.2d 165 (1949). We are not at all convinced of the applicability of such doctrine to the case at hand. We do not think DoAll is entitled to indemnity from Huff as Huff did not cause the harm. In other words, Huff did not manufacture a defective product. As such, we are of the opinion that DoAll is not entitled to indemnity from Huff upon the breach of warranty judgment.

MOTION FOR DISCRETIONARY REVIEW

Both Huff and DoAll sought discretionary review in the Supreme Court of Kentucky again raising the indemnity issue. On April 14, 1999, the Supreme Court held both motions in abeyance pending a decision in Degener v. Hall Contracting Corp.3 In 2000, Degener and its companion case Salazar v. Korp II Limited Partnership, were finalized. In those cases the court held that the apportionment statute did not eliminate the common law right of indemnity where one is only constructively or secondarily liable to a plaintiff, and both were remanded to the respective trial courts for resolution of the claims for indemnity.4 Following the court's opinion in Degener, Huff's and DoAll's motions for discretionary review were removed from abeyance and the motions denied. The denial of discretionary review left intact the opinion of this court, remanding the case only for the reallocation of the twenty percent deducted from the award on the breach of warranty claim against DoAll.

REMAND TO THE TRIAL COURT

On remand, Ferrante tendered to the trial court a post-appeal judgment incorporating the original 70/20/10 apportionment on strict liability, DoAll's liability for breach

3 Ky., 27 S.W.3d 775 (2000).

4 Id. at 782.

of warranty, post-judgment interest and the ten percent penalty provided by KRS 26A.300. Huff challenged only the constitutionality of the ten percent penalty and paid Ferrante a total of $387,460.46, representing one-half the total judgment, interest and costs. Huff maintained that DoAll, liable for ten percent of the judgment for strict liability and one hundred percent of the judgment for breach of warranty, should at least pay half. DoAll insisted that Degener reopened the issue of indemnity for reconsideration. The trial court entered a judgment consistent with Ferrante's tendered post-appeal judgment. Faced with possible execution of one hundred percent of the judgment, DoAll paid Ferrante $251,708.03, representing thirty percent of the total damages, court costs, accrued postjudgment interest and appellate penalty.

DOALL'S APPEAL AFTER REMAND

Despite the Supreme Court's denial of discretionary review, DoAll contends that Degener mandates that this court again revisit the issue. As a general rule, the law-of-the-case doctrine precludes an appellate court from reconsidering an issue of law previously decided by that court in the same case. Quoting from previous cases addressing the doctrine, the court in Hogan v. Long,5 recited that:

5 Ky., 922 S.W.2d 368, 370 (1995).

In Commonwealth v. Schaefer, Ky., 639 S.W.2d 776 (1982), the Court defined the "law of the case" doctrine: [T]he Court of Appeals has no power on a second appeal to correct an error in the original judgment which either was, or might have been relied upon in the first appeal. Id. at 777. The Schaefer court cited to the decision in Aetna Oil Co. v. Metcalf, 300 Ky. 817, 190 S.W.2d 562 (1945) which stated: No rule is more firmly established in this jurisdiction than the one that the opinion on the first appeal becomes the law of the case not only as to the errors there relied upon for reversal but also as to errors appearing in the first record that might have been but were not there relied upon for a reversal. Id. at 563-64. In Williamson v. Commonwealth, Ky., 767 S.W.2d 323 (1989), this Court held that the law of the case governs a second appeal and, quoting from Martin v. Frasure, Ky., 352 S.W.2d 817 (1961), stated that a final decision, whether right or wrong, is the law of the case and is conclusive of the questions therein resolved and is binding upon the parties, the trial court, and the Court of Appeals.

There are cases, although few, where the courts have recognized narrow exceptions to the doctrine, such as where a higher court remanded a case for reconsideration.6 In Union 6 See H. R., ex. rel. Taylor v. Revlett, Ky. App., 998 S.W.2d 778, 780 (1999).

Light, Heat & Power Co. v. Blackwell's Adm'r,7 the court felt compelled to re-examine strict adherence to the law-of-the-case doctrine where its prior decision was admittedly erroneous. After examining what the court termed a trend in other jurisdictions to except from the general rule where there was clear and palpable error committed by the court in its prior decision, the court held:

The court should look to the effect of its own error rather than merely acknowledge that error was committed and let it go at that. It should wipe out the effect of the mistake in the first opinion rather than perpetuate the error which would otherwise result in a great wrong to the litigant and establish a bad precedent. That is essential justice.8

The court emphasized, however, that it was not reopening a final adjudication of the case.

The court is not assuming to reopen a final adjudication of a case. Although this is the same action, the first judgment was not affirmed and that litigation was not ended. The reversal was for error relating to the duty of the defendant to insulate its wires at the point of the accident and the instruction on that issue. The case was tried de novo. The trial court properly followed the first opinion and was led into error by the quite inadvertent error of this court in holding there was sufficient evidence of negligence in having its wires where they were to submit the case to the

7 Ky., 291 S.W.2d 539 (1956).

8 Id. at 543.

jury. In deciding the present appeal, we reach the conclusion that the judgment should be reversed since no negligence of the defendant was proven because there was no duty to anticipate the use of the crane beneath the relocated wires. . . .9

In the present case, our earlier decision was conclusive as to the issue of indemnity. DoAll was, under any theory, precluded from seeking indemnity from Huff. DoAll sought discretionary review, including a review of the indemnity issue, which was ultimately denied by our Supreme Court. While the denial of a motion for discretionary review does not indicate approval of this court's opinion in the case, it does permit the decision to stand and be final.10 Even if our prior decision was erroneously decided, the law-of-the-case doctrine precludes this court from reversing its prior decision. This is particularly true where, as here, the Supreme Court has denied discretionary review and permitted the earlier decision to become final.

REALLOCATION OF THE TWENTY PERCENT TO FERRANTE'S NEGLIGENCE

DoAll also contends that on remand the trial court erroneously reallocated the twenty percent of fault attributable to Ferrante's own negligence entirely to DoAll. It argues that

9 Id. at 544.

10 CR 76.20(9)(a); Livingston County Farm Supply, Inc. v. Spencer, Ky., 593 S.W.2d 76, fn3 (1979).

Ferrante's twenty percent should be reallocated in conformity with the jury's original action as between Huff and DoAll, raising Huff's share to 87.5% and DoAll's from 10% to 12.5%. Again, we believe that our prior decision is clear. In addition to submitting the strict liability claim, the trial court submitted a claim for breach of warranty against DoAll for which the jury returned an award in the corresponding sum of $471,343.00. The trial court reduced this award by 20% based upon the jury's apportionment of fault against Ferrante in the strict liability claim. We believe such reduction constitutes error. In the breach of warranty claim, the record reveals that the jury did not receive an instruction to apportion "fault" against Ferrante; consequently, the jury apportioned no fault to Ferrante. In the absence of such apportionment, we do not believe that the breach of warranty should have been so reduced by the trial court. We believe Ferrante is entitled to a judgment of $471,343.00 upon the breach of warranty claim.

The jury apportioned damages only on strict liability and we affirmed the apportionment of fault on that claim. It was only Ferrante's breach of warranty claim and the corresponding reduction of the recovery against DoAll based on Ferrante's negligence that we found reversible error. Because the reduction of the award on the breach of warranty claim against DoAll was improper, there is no issue as to how the twenty percent should be reallocated. On the breach of warranty claim, DoAll, and only DoAll, is liable for the entire amount.

CONSTITUTIONALITY OF KRS 26A.300

On remand, the trial court sustained Ferrante's motion for assessment of an appellate penalty pursuant to KRS 26A.300. However, Huff now argues that KRS 26A.300 is unconstitutional. KRS 26A.300 provides:

(1) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure, there shall be no damages assessed on the first appeal as a matter of right contemplated by Section 115 of the Constitution of Kentucky.

(2) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an appellate court.

(3) Similar damages of ten percent (10%) shall be imposed when a petition for writ of certiorari, petition for rehearing, or other petition which stays collection of a judgment for the payment of money is denied by an appellate court under circumstances not constituting a first appeal under subsection (1) of this section.

(4) No additional penalty shall be imposed upon a party as a consequence of a review subsequent to a petition or second appeal.

(5) Damages imposed under subsection (2) or

(3) of this section shall not be payable and shall be void if the decision of the trial court awarding the payment of money is ultimately reversed.

Appellate penalty provisions have been part of the law of this Commonwealth dating back to 1792.11 In 1976, as a part of the amendments to our Constitution, collectively referred to as the Judicial Article, substantive changes were made to the appellate penalty provisions. As explained by the court in Coomer v. Gray:12

In 1975 (effective January 1, 1976), the people of Kentucky adopted a number of amendments to our Constitution which are collectively known as the Judicial Article. Section 115 of our Constitution now allows one appeal as a matter of right in all cases. Subsequent to the effective date of Section 115, and on June 19, 1976, KRS 26A.300 became effective. Under former law, Civil Code of Practice, Sec. 764, a provision which differs substantially from KRS 26A.300, damages for delay were recoverable in all cases upon affirmance or dismissal of any appeal from a superseded judgment for the payment of money. Preece v. Burns' Adm'r, 261 Ky. 202, 87 S.W.2d 375 (1935). Under present law, there is no such provision applicable to the first appeal. The present version of KRS 26A.300 applies only to second appeals and those cases where the judgment debtor seeks to postpone payment of money through a stay of execution pending

11 See Phillips v. Green, 288 Ky. 202, 155 S.W.2d 841 (1941).

12 Ky., 750 S.W.2d 424, 426 (1988).

a second appeal. Unlike CR13 73.02(4), which is applicable to all appeals and the purpose of which is to prevent the filing of frivolous appeals, KRS 26A.300 regulates the collection and calculation of judgments. Section 59 of the Kentucky Constitution prohibiting "special legislation" is not violated by the statute because the statute applies only to judgment debtors who have sought a stay of execution of a monetary judgment, rather than applying to all appeals. The legislature may subject one class of persons to one set of laws while subjecting the next class to another set if each law is applied equally and the classifications are based on natural, real and substantive reasons.14 The reason for the classification of judgment debtors, who have stayed execution of monetary judgments after an affirmance on a first appeal, is obvious when the purpose of the statute is considered. It is only this specific class of debtors who are capable of utilizing our appellate process to postpone the payment of a judgment. Such debtors can avoid the provisions of the statute completely if they do not seek the protection of a stay of execution. Nor does the statute violate the United States Constitution. The United States Supreme Court has had the opportunity to address the constitutionality of a Mississippi

13 Kentucky Rules of Civil Procedure.

14 Kentucky Harlan Coal Co. v. Holmes, Ky., 872 S.W.2d 446 (1994).

statute which provides that unsuccessful appellants from money judgments pay an additional assessment of fifteen percent of the judgment.15 The legitimacy of the state's interest in such statutes, the court held, cannot be seriously questioned:

Under this Court's equal protection jurisprudence, Mississippi's statute is "presumed to be valid and will be sustained if the classification . . . is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The state interests assertedly served by the Mississippi statute were detailed by the Mississippi Supreme Court in Walters v. Inexco Oil Co., 440 So.2d 268 (1983). The penalty statute, some version of which has been part of the Mississippi law since 1857, "expresses the state's interest in discouraging frivolous appeals. It likewise expresses a bona fide interest in providing a measure of compensation for the successful appellee, compensation for his having endured the slings and arrows of successful appellate litigation." Id. at 274-275. In a similar vein, the statute protects the integrity of judgments by discouraging appellantdefendants from prolonging the litigation merely to "squeeze a favorable settlement out of an impecunious" appellee. Id. at 275. Also, the penalty statute "tells the litigants that the trial itself is a momentous event, the centerpiece of the litigation, not just a first step weighing station en route to endless rehearings and reconsiderations." Ibid. Finally, in part because it serves these other goals, the penalty statute furthers the State's interest in conserving judicial resources. Ibid.

15 Bankers Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988).

The legitimacy of these state interests cannot seriously be doubted, and this Court has upheld statutes that serve similar interests. See e.g., Life & Casualty Ins. Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987 (1934) (upholding additional assessment on insurance companies that wrongfully refuse to pay policy benefits); see also, Louisville & Nashville R. Co. v. Stewart, 241 U.S. 261, 263, 36 S.Ct. 586, 60 L.Ed. 989 (1916) (State may make appeal "costly in cases where ultimately the judgment is upheld") (Holmes, J.). Cf. Lindsey v. Normet, 405 US 56, 78, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) ("We do not question here reasonable procedural provisions to safeguard litigated property . . . or to discourage patently insubstantial appeals") (citation omitted). The statute therefore offends the Equal Protection Clause only if the legislative means that Mississippi has chosen are not rationally related to these legitimate interests.16 Kentucky has also judicially recognized that state's interest in such statutes.

"It is a penalty or tax imposed by legislative enactment upon the unsuccessful litigant for having delayed the litigation, and for having kept the successful litigant from sooner collecting his debt – a panacea, as it were, for the law's delay. It is not laid upon the litigant because of any wrong done, or duty violated, but for the sole purpose of preventing useless and frequently vexatious delays in the termination of litigation. Some means had to be adopted that would tend to put an end to useless appeals, which would more frequently than otherwise be brought for the purpose of delay and annoyance. To meet this necessity, the Legislature passed the act

16 Id. at 486 U.S. 81-82, 108 S.Ct. at 1652-53, 100 L.Ed.2d at 74-75.

imposing upon the unsuccessful appellant from a judgment for the payment of money a penalty in the shape of damages, equal to 10 per cent of the judgment appealed from."17 Moreover, the court in Bankers Life held there was no valid equal protection argument. There the appellant, as do DoAll and Huff, relied on the court's opinion in Lindsey v. Normet,18 to muster support for their equal protection argument. In Bankers Life, supra, the court distinguished Lindsey, noting that it involved a statute requiring a tenant to post a bond of twice the amount of rent expected to accrue pending appellate review and to be forfeited to the landlord if the lower court's decision was affirmed. Because the statute burdened only tenants and bore no reasonable relationship to any valid state objective, the statute was unconstitutional. The court clearly held Lindsey inapplicable to the Mississippi statute:

As Lindsey demonstrates, arbitrary and irrational discrimination violates the Equal Protection Clause under even our most deferential standard of review. Unlike the statute in Lindsey, however, Mississippi's penalty statute does not single out a class of appellants in an arbitrary and irrational fashion. First, whereas the statute in Lindsey singled out the narrow class of defendant-tenants for discriminatory treatment, the sweep of § 11-3-23 is far broader; the penalty applies both to plaintiffs and defendants, and it also

17 Phillips, supra, at 843 (citing Commonwealth v. French, 130 Ky. 744, 114 S.W. 255, 256 (1908)).

18 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972).

applies to all money judgments as well as to a long list of judgments whose money value may readily be determined. Second, and more generally, there is a rational connection between the statute's objective and Mississippi's choice to impose a penalty only on appellants from money judgments or judgments the money value of which can readily be determined. If Mississippi wanted similarly to deter frivolous appeals from other kinds of judgments, it either would have to erect a fixed bond that bore no relation to the value of the underlying suite, or else it would have to set appropriate penalties in each case using some kind of individualized procedure, which would impose a considerable cost in judicial resources, exactly what the statute aims to avoid. Mississippi instead has chosen a partial solution that will deter many, though not all, frivolous appeals without requiring a significant commitment of governmental resources. Appellants from money judgments, and from other types of judgments delineated in the statute, are a rational target of this scheme because the value of their claims, and thus of a proportional penalty, may be readily computed without substantial judicial intervention. . . . The Constitution does not prohibit Mississippi from singling out a group of litigants that it rationally concludes is most likely to be deterred from bringing meritless claims at the least cost to the State.19

In summary, we find KRS 26A.300 constitutional. It does not, since it is applicable only to second appeals, chill or deter judgment debtors from exercising the right to a first

19 Bankers Life, supra, 486 U.S. 83-84, 108 S.Ct. 1653, 100 L.Ed.2d 75-76. (Footnote omitted).

appeal.20 Moreover, its basis in the law has been well established as a means to control the payment of money judgments pending what can be a long appellate process.

APPLICATION OF KRS 26A.300 TO THE TWENTY PERCENT REALLOCATED TO DOALL

DoAll contends that the ten percent provision under KRS 26A.300 should not apply to the twenty percent of the judgment that was reallocated to it by virtue of the trial court's judgment after remand by the court. It contends that the filing of a motion for discretionary review constitutes its first appeal on the issue and therefore is not subject to the provisions of KRS 26A.300.

The statute does not refer to issues litigated, but to the number of appeals in a case. We interpret this to mean the entire case, without reference to the issues raised or designation of the parties as appellants or appellees. Because the trial court decided favorably to DoAll on the issue of the applicability of apportionment of damages on the breach of warranty claim, DoAll did not appeal. However, Ferrante appealed and all parties, including DoAll, were given the opportunity to argue their positions to the appellate court. Unsatisfied with this court's opinion, DoAll filed a motion for discretionary review. Damages are properly awarded when a

20 See Coomer, supra.

motion for discretionary review is denied. The motion for discretionary review does not constitute a first appeal. In Wells v. Southern Ry. Co.,21 the trial court entered a judgment against Southern, Southern appealed, and the case was reversed. Wells' administratrix filed a motion for discretionary review which was granted and the Supreme Court reversed the Court of Appeals and affirmed the circuit court. Southern then filed a petition for rehearing which was denied and Southern was subsequently assessed damages under KRS 26A.300. The court ordered the damages to be paid and in doing so reasoned:

First of all, we have an appeal as a matter of right by the railroad from the circuit court to the Court of Appeals. Thereafter, although not an appeal, the motion for discretionary review filed by the administratrix of the estate of David L. Wells presents circumstances not constituting a first appeal.22 Following this court's opinion, DoAll did not have a right to appeal but could request review only through the filing of a motion for discretionary review. The court denied the motion as to all issues raised, and therefore, damages are proper under KRS 26A.300.

POST-JUDGMENT INTEREST

21 Ky., 633 S.W.2d 406 (1982).

22 Id. at 408.

The trial court awarded interest on the award, including the twenty percent of the award reinstated by this court in its opinion rendered August 14, 1998, back to the date of the original judgment, September 24, 1996. DoAll contends that interest should run from August 14, 1998 to the date this court decided that Ferrante was entitled to the twenty percent award. KRS 360.040 provides that "a judgment shall bear twelve percent (12%) interest compounded annually from its date." The purpose of the statute is to encourage the judgment debtor to comply with the judgment and to compensate the judgment creditor for any delay in the use of the money.23

DoAll points out that until the date of this court's first opinion in this case, it had no liability for the twenty percent judgment. While its point may be accurate, it remains that during the pendency of the appeal, DoAll had use of the money and Ferrante was denied that to which it was determined he was entitled. In Elpers v. Johnson,24 a jury returned a separate verdict for the plaintiffs on March 5, 1960, and on the same date, the trial court entered judgment NOV in favor of the defendants. The plaintiffs appealed. The court reversed and ordered that the trial court enter another judgment according to the verdicts. On remand, the court entered judgment for the

23 See Stone v. Kentucky Ins. Guar. Ass'n, Ky. App., 908 S.W.2d 675 (1995).

24 Ky., 386 S.W.2d 267 (1965). plaintiffs and permitted interest from March 22, 1960, the date of the original judgment. In upholding the award of interest the court stated: Counsel for defendant also relies heavily on KRS 360.040, which states, in part, ‘A judgment shall bear interest from its date.' However, counsel for plaintiffs contends that when this Court held on the first appeal that the lower court was in error in granting judgment n.o.v. in favor of defendant on March 22, 1960, the effect was to hold that the original judgment in favor of plaintiffs was in fact never effectively lost but always in fact existed. We agree with this contention and the Missouri case cited. Reimers v. Frank B. Connet Lumber Co., Mo., 273 S.W.2d 348 (1954).25

Where, as here, it is determined by an appellate court that the trial court has denied a plaintiff that to which he is entitled, it is possible to make the plaintiff whole by an award of interest from the date he should have received the amount owed. We are not alone in reaching this conclusion. In Goddard v. Children's Hosp. Med. Ctr.,26 the court held that appellate modification of damage awards relates back to the date of the original judgment for purposes of the accrual of interest. The court noted that its opinion was in conformity with the uniform opinion in the federal court system:

25 Id. at 268.

26 141 Ohio App. 3d 467, 751 N.E.2d 1062 (2000).

We also note some uniformity of opinion in the federal court system corresponding to our holding in this case. In applying Fed.R.App.P. 37 governing post-judgment interest, the First, Seventh, Eighth, and Eleventh Circuits have ruled that where a judgment is reversed and a jury verdict is reinstated, interest runs as a matter of law from the date of the jury verdict, not from the later date when the verdict is reinstated. The Fifth and Second Circuits, in similar circumstances, have reserved the right to determine the starting point for the accrual of interest based on the "equities" of each individual case.27

There was no error in the trial court's award of interest on the twenty percent of the award reinstated by this court.

THE JUDGMENT AGAINST OHIO CASUALTY

Following the entry of the trial court's post-appeal judgment and amended post-appeal judgment, on May 1, 2001, the trial court entered a "Judgment Against Surety" adjudging that Ferrante shall have judgment against Sentry Insurance A Mutual Company, as surety for Huff Carbide Tool, Inc., and The Ohio Casualty Company, as surety for DoAll as set forth in the amended post-appeal judgment. Ohio Casualty maintains that the judgment was premature since it was entered prior to this court's opinion in the present appeal.28 Since we are affirming the trial court's judgment, our discussion of this issue need not be lengthy. However, we point 27 Id. at 472, 751 N.E.2d at 1066. (Footnote omitted). 28 Sentry did not appeal from the May 2001 judgment. out that the supersedeas bond was posted to prevent execution on the original judgment. In conformity with this court's directive, the trial court entered a post-appeal judgment and subsequently entered judgment against the sureties. Although Ferrante has received eighty percent of the total damage award, DoAll's being made under protest, twenty percent remains unpaid and secured by Ohio Casualty. We find no error.

Outcome: This case has a long history and since this court’s original opinion, the law in the area of product’s liability and apportionment of fault has been clarified admittedly calling into question the correctness of our earlier decision. Adding to the complexities of this case is the lack of an identifiable manufacturer of the blank used in the end mill. This court, however, cannot ignore the law-of-the-case doctrine and the Supreme Court’s denial of discretionary review. Litigation must not be endless and the parties must accept the judicial decisions once the court process has been exhausted. The judgment of the Jefferson Circuit Court is affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None