Gregory J. Kerkove v.David Sherbahn & Spenard Builders Supply

Automobile Accident - Negligence - On April 14, 1994, David Sherbahn and Gregory Kerkove were involved in a
car accident at the intersection of Post Road and Viking Drive in Anchorage.
Kerkove sued Sherbahn and Sherbahn's employer, Spenard Builders Supply
(SBS). Before trial, Kerkove offered to settle the dispute for $30,000,
inclusive of costs, interest, and attorney's fees. Sherbahn and SBS rejected
the offer.

Although Sherbahn and SBS initially denied liability, in opening statement
at trial they conceded that Sherbahn was negligent and that his negligence
was a legal cause of the accident. Accordingly, the trial primarily
addressed the issues of damages and Kerkove's comparative fault.

In addition to past economic and non-economic damages, Kerkove sought
compensation for future medical treatment and future non-economic loss,
including pain and suffering. To support his claim for future medical bills,
Kerkove testified that he continued to experience neck pain and occasional
headaches. His treating chiropractor, Dr. Edward Barrington, referred him in
the fall of 1994 to Dr. Glenn Ferris for an evaluation and possible
treatment because Kerkove was no longer responding to Dr. Barrington's mode
of treatment. After examining Kerkove, Dr. Ferris reported:

Because he is doing so well, I am providing him with an
anti-inflammatory to assist in the final stages of
recovery and am sending him back for further
chiropractic management. Quite possibly, the
anti-inflammatory combined with his chiropractic
management will be adequate to restore him to his
pre-injury status. In the event that we are
unsuccessful in gaining full recovery within the next
couple of weeks, trigger-point injections with a
concomitant physical therapy protocol will be
considered.

But Kerkove claims that he never underwent the trigger-point injection
treatment because he could not afford its estimated cost of $8,000-$15,000.

After the parties had presented all of their evidence, Sherbahn and SBS
moved for a directed verdict on Kerkove's future economic and non-economic
loss:

[T]he medical records themselves indicate that he . . .
resolved [his] pains, and the pains he's left with, as
he himself has described, are pains similar to what he
had before the accident. There's been no testimony that
he received enhanced and permanent injuries at all from
this accident, no testimony in front of the Court to
support that finding for the jury, so they would in fact
be required to speculate as to awarding any such
damages.

The court denied the motion.

Although the jury found that Kerkove was comparatively negligent, it
concluded that his negligence was not a legal cause of his injuries. The
jury awarded Kerkove $5,000 for past economic loss (medical bills), $5,000
for past non-economic loss (pain and suffering), and $15,000 for future
economic loss (cost of medical treatment).

Because the jury award exceeded the offer of judgment that Kerkove had
made earlier in the litigation, Kerkove moved to enhance the rate of
prejudgment interest under former Alaska Civil Rule 68 and former AS
09.30.065. Sherbahn and SBS opposed the motion, claiming that
Kerkove was not entitled to an enhanced interest rate on his damage award
because Rule 68 does not cover a joint offer of judgment, and filed a
notice to reduce the future economic damage award to its present value.

The superior court entered final judgment on June 3, 1997. The court's
judgment included past economic loss of $5,000 and past non-economic loss of
$5,000, both bearing enhanced prejudgment interest of 15.5% from April 14,
1994 - the date of the accident - and future economic loss of $15,000,
bearing enhanced postjudgment interest of 15.5% from March 6, 1997 - the
date of the jury verdict.

Unknown

Unknown

Affirmed by the Supreme Court of Alaska. See:___ P.2d ___ (Alaska 9-17-1999). Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.