Date: 01-10-2012

Case Style: Jose Luis Toledo v. Iglesia Ni Christo

Case Number: No. 224

Judge: Ciparick

Court: New York Court of Appeals

Plaintiff's Attorney: Richard J. Montes

Defendant's Attorney: David M. Schuller for Respondent

Defense Association of New York, Inc., amicus curaie

Description: The sole issue on this appeal is whether the trial court, in awarding preverdict interest, properly discounted future wrongful death damages back to the date of decedent's death and awarded interest from the date of death to the date of verdict. We agree with the courts below and affirm the judgment as entered. We do not reach the question of whether the interest should have been added to the future damage award discounted to the date of verdict or added to the award discounted to the date of death as that issue is not before us.

Decedent Joaquin Martinez Vargas was killed in a construction accident on September 21, 2002. Plaintiff Jose Luis Toledo, the administrator of decedent's estate, brought this negligence and wrongful death action against defendant church. Supreme Court granted summary judgment on the issue of liability on August 14, 2006. In November 2007, a jury trial was held to determine both past and future damages. Supreme Court instructed the jury to "determine the economic value of Joaquin Martinez to Claudia Vera [decedents's wife], Henri Hernan Martinez and Christopher Martinez [decedent's children] on September 21, 2002, the date on which Mr. Martinez died."

On December 3, 2007, the jury rendered a verdict awarding plaintiff $150,000 for decedent's conscious pain and suffering, $310,000 for loss of earnings from date of death to date of verdict, $35,000 for spousal services lost from date of death to date of verdict, $50,000 for loss of parental support for infant Henri from date of death to date of verdict, $15,000 for loss of parental support for infant Christopher from date of death to date of verdict, $2,000,000 for future lost earnings for 27 years, $0 for future lost spousal services, $400,000 for future parental loss for Henri for 16 years and $250,000 for future parental loss for Christopher for 17 years. After posttrial motions, defendant, relying on the testimony of its economist, stipulated to an additional $912,000 for future loss of spousal services representing 38 years from the date of verdict. The total jury award for future damages was $3,562,000.

Plaintiff submitted a proposed judgment to Supreme Court. That judgment included an award for future damages of $4,295,595 computed as follows: pursuant to CPLR 5041, plaintiff first subtracted the $250,000 lump sum from the jury's award of future damages of $3,562,000 and then discounted that total at a discount rate of approximately 4.33% to the date of verdict, December 3, 2007. The award (less the $250,000 lump sum) discounted back to the date of verdict was $3,104,848. Plaintiff then further discounted the award to the date of decedent's death, arriving at a value of $2,487,465. Plaintiff then calculated the interest on that discounted amount at the statutory interest rate of 9% from the date of death to the date of verdict (see CPLR 5004). The interest calculated was $1,190,747. Plaintiff then added the amount of the calculated interest from the date of death to the date of verdict to the discounted award as of the date of verdict, arriving at a total future damages award of $4,295,595.

Defendant submitted its own proposed counter-judgment, which neither discounted the verdict back to the date of death nor included any preverdict interest for the future wrongful death award. Supreme Court accepted plaintiff's proposed judgment and signed it on October 23, 2008.

Defendant then moved to resettle the award. Supreme Court denied the motion holding that, in actuality, the motion was one for reargument and that there were no matters of fact or law misapprehended by the court. Defendant appealed the judgment. Prior to the appeal, the parties entered into a stipulation which provided: "The sole issue to be presented on this appeal is the question whether the trial court properly discounted the future wrongful death damages back to the date of death, and awarded interest thereon from the date of death to the date of judgment." The Appellate Division initially reversed holding that interest on future damages should only have been calculated from the date of the verdict (see Toledo v Christo, 71 AD3d 404, 405 [1st Dept 2010]). Upon reargument, the Appellate Division recalled and vacated its decision and, relying on EPTL 5-4.3 and our cases interpreting the statute, namely Milbrandt v Green Refractories Co. (79 NY2d 26 [1992]) and Rohring v City of Niagara Falls (84 NY2d 60 [1994]), held "[w]here as here, the award of future damages was discounted by the court to the date of liability, which is the date of death, the award of interest from that date to the date of judgment was proper" (Toledo v Ni Christo, 75 AD3d 436, 436 [1st Dept 2010]). We granted defendant leave to appeal (15 NY3d 713 [2011]) and now affirm.

Defendant argues that our holding in Milbrandt prevents a plaintiff from collecting preverdict interest on future damages in a wrongful death action, because the interest from the date of death to the date of verdict has already been included in the discounted award at the time of the verdict, and that any additional interest would be an impermissible windfall to the plaintiff. Defendant further argues that awarding interest on future damages that have yet to be realized also constitutes an unfair windfall for plaintiff. We disagree.

Wrongful death awards in New York are provided for in the EPTL. Specifically, EPTL 5-4.3, relating to the amount of recovery in a wrongful death action, provides in pertinent part:

"(a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought . . . Interest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be a part of the total sum awarded."

Applying this statute and its predecessor statutes, this Court and the courts below have long held that "prejudgment interest in a wrongful death action is 'part of the damages'" (Davenport v Webb, 11 NY2d 392, 394 [1962], quoting Cleghorn v Ocean Acc. & Guar. Corp. 244 NY 166, 167 [1926]; see also Welsh v Peerless Cas Co., 8 AD2d 373, 376 [1st Dept 1959]; Ashkenazy v National Union Fire Ins. Co. of Pittsburgh, Pa., 245 AD2d 326, 327 [2d Dept 1997]), and that such interest should run from the date of death to the date of verdict (see Alfieri v Cabot Corp. 17 AD2d 455, 461 [1st Dept 1962] ["interest from the date of the wrongful death is an element of damages"]; see also Duffy v City of New York, 7 AD2d 988, 988 [1st Dept 1959]).

Furthermore, it has long been the rule in New York that the damages on a wrongful death action are due on the date of the death of the plaintiff's decedent (see Radley v Leray Paper Co., 214 NY 32, 36 [1915]); Murmann v New York, New Haven & Hartford R.R. Co., 233 AD 446, 448 [2d Dept 1931] revd on other grounds 258 NY 447 [1932] ["The damages, theoretically, should have been paid at the time the loss was suffered, to wit, the date of death"]). Future damages are thus a debt owed entirely as of the date of liability -- the date of death (see Rohring, 94 NY2d at 69-70) -- and such damage award properly should include preverdict interest calculated from the date of death.

Consistent with this analysis, in Milbrandt we ruled "that no preverdict interest should be added to an award for postverdict losses if the award has not been discounted to a time prior to the award" (79 NY2d at 31). There, we observed that since the verdicts in Milbrandt and in the companion case Schmertz v Presbyterian Hosp. in City of N.Y. had not been properly discounted, preverdict interest on future damage awards would have been improper as it would indeed constitute a windfall (see id. at 36). Following the adoption of CPLR articles 50-A and 50-B, however, discounting is performed by the trial court and juries are specifically instructed, pursuant to CPLR 4111 (e), to award a full amount of future damages, without a reduction to present value.1

Moreover, in Rohring we stated "that future damages should be discounted to the date of liability, which by statute is the date of death, before interest is calculated on them" (84 NY2d at 69). We now conclude that the proper method for calculating preverdict interest in a wrongful death action is to discount the verdict to the date of liability, i.e., the date of death, and award interest on that amount from the date of death to the date of judgment.2

Finally, it should be noted that awarding preverdict interest on future damages to plaintiff is not a penalty against defendant. "The purpose of interest is to require a person who owes money to pay compensation for the advantage received from the use of that money over a period of time" (Manufacturer's & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583, 589 [2007]).

"The plaintiff has been deprived of the use of money to which he or she was entitled from the moment that liability was determined. That is a loss for which the plaintiff should be compensated." (Love v State of New York, 78 NY2d 540, 545 [1991]). "[A] rule that would permit the defendant to retain the cost of using the money (i.e., interest) would provide the defendant with a windfall" (id. [emphasis added]) -- a result we do not countenance.

Insofar as there is any issue concerning the accuracy of Supreme Court's calculation of the future damages award, that issue is not before us, nor was it litigated below. The stipulation entered into by the parties narrowed the scope of this appeal solely to the issue of "whether the trial court properly discounted the future wrongful death damages back to the date of death, and awarded interest thereon from the date of death to the date of judgment," not whether the calculation itself was accurate. Hence, we do not address whether the preverdict interest should have been added to the award discounted to the date of death or to the award discounted to the date of verdict.

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See: http://www.nycourts.gov/ctapps/Decisions/2012/Jan12/224opn12.pdf

Outcome: Accordingly, the order of the Appellate Division should be affirmed, with costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: