Davis, J., concurring:
In response to the certified question presented in this case, the majority opinion
has held that a negligently injured plaintiff may recover for the loss of future wages that are
a direct consequence of an injury, without showing that the injury itself was permanent. I
concur in this result. I have chosen to write separately because I believe the majority opinion
should have explained the technical differences between the legal theories of “lost earning
opportunity,” “lost or impaired earning capacity,” and “lost future income or wages.”
(See footnote 1)
While
I recognize that many courts tend to use the language of these legal concepts
interchangeably,
(See footnote 2)
my concern is that due recognition be given to the fact that the concepts
require different types of proof.
In Jordan, a ten year old child was hit by a car while riding his bicycle. The
child sustained permanent brain damage due to the accident. As a result of the brain damage,
a jury awarded the child compensation for lost or impaired earning capacity. One of the
issues the Court had to decide in Jordan was “whether sufficient evidence of future
consequences from the negligent act of the defendant was proven to lawfully permit the jury
to make an award for the future effects of the permanent injury.” Jordan, 158 W. Va. at 52,
210 S.E.2d at 634.
As an initial matter, Jordan held
that to form a basis of a legal recovery for the future permanent consequences of the wrongful infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury. Contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.
158 W. Va. at 42, 210 S.E.2d at 629 (citation omitted). The decision next held that “[t]he prognosis of the future effect of permanent injuries . . . must be elicited from qualified experts, evaluated first by the court and then, if found sufficient, considered by the jury upon proper instruction.” Jordan, 158 W. Va. at 49, 210 S.E.2d at 633. Jordan then went on to provide a non-exhaustive list of examples of the types of claims that permit recovery for future damages:
Future damages are those sums awarded to an injured
party for, among other things: (1) Residuals or those future
effects of an injury which have reduced the capability of an
individual to function as a whole man; (2) future pain and
suffering; (3) loss or impairment of earning capacity; and (4)
future medical expenses.
158 W. Va. at 52, 210 S.E.2d at 634 (emphasis added). The Jordan Court concluded:
There was ample evidence of permanency of an injury
which was obscure only in its final and ultimate effects. Lay
and medical evidence adduced in support of the plaintiff's case
demonstrated that in addition to the permanent injury, plaintiff
had suffered deleterious effects from the automobile accident
from which a jury may have reasonably inferred he will so suffer
in the future and that such suffering and residuals will effect this
capacity to function as a whole man in the future.
158 W. Va. at 58-59, 210 S.E.2d at 638.
I have labored thus far in presenting facts from the Jordan opinion in an effort to underscore two critical points. First, Jordan was concerned with future damages in the context of a permanent injury. Second, because Jordan involved a permanent injury, the law applicable to the claim was the legal theory of “lost or impaired earning capacity.” Jordan recognized, as have other courts, “that impairment-of-earning capacity is recoverable only upon proof that an injury is permanent.” Wheeler v. Bennett, 849 S.W.2d 952, 955 (Ark. 1993). See also Myrick v. Stephanos, 472 S.E.2d 431, 434 (Ga. Ct. App. 1996) (“Recovery for 'lost earning capacity' is . . . a separate element of damages recovery of which physical injury to the plaintiff resulting in a permanent or total physical disability is the essential element.”); Brown v. Guiter, 128 N.W.2d 896, 902 (Iowa 1964) (“[L]oss of earning capacity is an element of permanent injury.”); Snow v. Villacci, 754 A.2d 360, 363 (Me. 2000) (“A lost earning capacity claim requires evidence that the injury caused by the wrongdoer has caused an ongoing impairment that has diminished or eliminated the plaintiff's ability to earn income.”); Gary v. Mankamyer, 403 A.2d 87, 89 (Pa. 1979) (“Under Pennsylvania law, a plaintiff seeking recovery for [lost earning capacity ] must show two things: (1) a permanent injury and (2) a total impairment of earning power.”); Leak v. U.S. Rubber Co., 511 P.2d 88, 93 (Wash. Ct. App. 1973) (“Where a permanent injury has been established . . . plaintiff . . . is entitled to compensation for impairment of earning capacity.”). Indeed, in at least two prior decisions of this Court “[w]e have explained that 'impairment of earning capacity is a proper element of recovery when two elements have been proven: permanent injury and reasonable degree of certainty of the damages.'” Craighead v. Norfolk and W. Ry. Co., 197 W. Va. 271, 281, 475 S.E.2d 363, 373 (1996) (quoting Adkins v. Foster, 187 W. Va. 730, 733, 421 S.E.2d 271, 274 (1992)). Further, as explained in Johnson v. LSU Medical Center,
Lost earning capacity is loss of a person's potential and
is not necessarily determined by actual loss. The plaintiff need
not be working or even in a certain profession to recover such
an award. What is being compensated is the plaintiff's lost
ability to earn a certain amount and she may recover such
damages even though she may never have seen fit to take
advantage of that capacity.
867 So. 2d 884, 887 (La. Ct. App. 2004) (citation omitted). In other words, the legal theory
of lost or impaired earning capacity “compensate[s] a plaintiff for loss of capacity to earn
income as opposed to actual loss of future earnings.” W.R. Grace & Co.-Conn. v. Pyke, 661
So. 2d 1301, 1302 (Fla. Dist. App. Ct. 1995). See also Brazoria County v. Davenport, 780
S.W.2d 827, 832 (Tex. App. 1989) (“Recovery for loss of earning capacity as a measure of
damages in a personal injury suit is not recovery of actual earnings but, rather, recovery for
the loss of the capacity to earn money.”).
The distinction between impaired earning capacity and lost future income was summarized in Kubista v. Romaine as follows:
It is generally well recognized that there are normally two
comp[o]nents or aspects which should be considered in
attempting to measure the detriment an injured plaintiff has
sustained when by reason of the injury he is unable to continue
earning his prior wages. The first and most obvious component
is frequently called “lost time,” “lost wages,” or “lost earnings.”
That is, it is clear that if an injury [is not permanent], the
plaintiff should be entitled to compensation for regular wages
lost because of the disability. Secondly, when it becomes
apparent that an injury was such that it occasioned a permanent
disability, or permanent diminution of the ability to earn money,
then the plaintiff should be entitled to compensation for what is
generally called “impaired earning capacity.”
538 P.2d 812, 815 (Wash. Ct. App. 1975).
The appellate court in Snow rejected the defendants' contention that no award could be obtained for lost earning opportunity. The court described a claim for lost earning opportunity as follows:
Unlike a loss of earning capacity, an earning opportunity
may be lost when, during the period of disability caused by the
defendant's negligence, a specific earning opportunity arises
which could otherwise have been utilized by the plaintiff, but is
lost because of a disability caused by the negligence of the
defendant.
One type of lost earning opportunity may occur when a
person who is in an education or training program is injured and
is unable to complete the program on schedule. If the injury
resolves and the trainee is capable of returning to the program,
the trainee may nonetheless recover damages representing the
lost opportunity to obtain the improved income during the
period of time in which the trainee would have begun to earn at
the new level but remains in the training program.
Snow, 754 A.2d at 364. In affirming the trial court's denial of partial summary judgment, the
appellate court crafted a test for establishing a claim for lost earning opportunity:
Accordingly, recovery may be had for the loss of an
earning opportunity if the claimant proves, by a preponderance
of the evidence, that: (1) the opportunity was real and not merely
a hoped-for prospect; (2) the opportunity was available not just
to the public in general but to the plaintiff specifically; (3) the
plaintiff was positioned to take advantage of the opportunity; (4)
the income from the opportunity was measurable and
demonstrable; and (5) the wrongdoer's negligence was a
proximate cause of the plaintiff's inability to pursue the
opportunity.
Id. at 365. See also Morris v. Milby, 703 N.E.2d 121 (Ill. App. Ct. 1998) (holding that
plaintiff may seek damages for lost opportunity to obtain promotion due to injury at time
promotion was to be considered).
In summation, I believe the majority opinion correctly answered the certified
question. However, I believe the majority opinion could have better served the bench and
bar by explaining the technical differences between a claim for lost earning opportunity, lost
or impaired earning capacity, and lost future income or wages.