Lovely v. Allstate Insurance Co.

ROBERTS, Justice.

Wesley M. Lovely appeals from a judgment entered after a jury-waived trial in the Superior Court (Penobscot County, Browne, AR.J.). Lovely sued Allstate Insurance Company, his underinsured motorist insurance carrier, to recover compensation for injuries suffered in a motor vehicle accident. The court awarded Lovely $10,499.53 as damages for a knee injury. Lovely argues that the court erred in failing to award additional damages based on an injury to his elbow. We agree, and accordingly we vacate the judgment.

In 1985 Lovely was employed as a tractor-trailer driver in Bangor. In early March 1985 Lovely twice suffered accidental blows to his right elbow that resulted in pain and swelling. He sought treatment at a walk-in clinic in Orono on March 6. On March 22, Lovely visited Dr. Jordan Shubert complaining of continuing pain. Although he could not be certain, Shubert tentatively diagnosed a fracture in Lovely’s right elbow. On April 4,1985, as Lovely drove his tractor-trailer on 14th Street in Bangor, a car driven by Cleo Oliver struck Lovely’s vehicle on the right side. As a result of the collision, Lovely struck his right elbow on the truck’s bunk.

Following the April accident, Lovely underwent extensive treatment to alleviate persistent pain in his elbow. In April 1986, one year after the accident, Dr. John Bradford performed a “tennis elbow release.” During the operation, Bradford observed a condition known as chondromalacia, which can be *1092 caused by trauma. The tennis elbow surgery failed to improve Lovely’s elbow. Later, Lovely was treated at Massachusetts General Hospital for an autonomic nervous system disorder called reflex sympathetic dystrophy which is often caused by trauma. Finally, in August 1988, Dr. Jesse Jupiter, a surgeon at Mass. General, performed a second operation on the elbow.

In April 1991 Lovely filed suit against Allstate and Travelers Insurance Company. 1 At trial, Allstate did not dispute that Cleo Oliver was negligent in striking Lovely. Instead, Allstate focused on the March injuries to Lovely’s elbow, suggesting that his damages were partially attributable to the preexisting condition. 2 It argued that, in order to recover, Lovely had the burden to demonstrate what portion of his injury resulted from which accident.

The evidence introduced at trial failed to resolve the uncertainty as to which accident was responsible for which portion of Lovely’s elbow injury. Bradford could not “get a clear picture” of the extent of the re-injury suffered in the April accident. Jupiter could not tell whether Lovely suffered an initial injury in March that was aggravated by the April accident. Dr. Lawrence Leonard, a medical expert who testified on Lovely’s behalf, attributed the initial pain to the March injuries and the later, more severe pain to the April accident, but he offered no basis for that distinction.

Ultimately the trial court, as the factfin-der, determined that the evidence provided no basis for an apportionment of damages among the March and April accidents. Although the record contained substantial evidence of pain and suffering as well as medical expenses attributable to the elbow injury, the court did not award any damages based on the injury to Lovely’s elbow. It entered a judgment in favor of Lovely in the amount of $10,499.53 for the knee injury. Lovely appealed.

In the case of joint tortfeasors whose separate negligent acts have caused a single injury that is incapable of apportionment, each defendant is liable for the entire amount of the damages. Paine v. Spottiswoode, 612 A.2d 235, 240 (Me.1992). This case presents the question whether the single injury rule applies when a negligent actor, by aggravating a preexisting injury, produces an aggregate injury that is incapable of apportionment. We conclude that it does.

Application of the single injury rule to situations involving preexisting conditions comports with the settled authority from other jurisdictions. For example, one jurisdiction requires that a jury be instructed to impose liability on the defendant for the entire amount of the injury if it is unable to apportion damages between the accident in question and a preexisting condition. Bigley v. Craven, 769 P.2d 892, 898 (Wyo.1989). See also Newbury v. Vogel, 151 Colo. 520 , 379 P.2d 811, 813 (1963) (“plaintiff was entitled to an instruction advising the jury that if they could not apportion the disability between the pre-existing arthritis and the trauma then the defendant was liable for the entire damage resulting from the disability”). Even the cases that place the burden on the plaintiff to produce evidence on which to apportion damages acknowledge that the defendant is liable for all of the damage when the injury is indivisible. See, e.g., LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981).

These cases reflect the views of the commentators as well. “[Ejntire liability is imposed both where some of the causes are innocent ... and where two or more of the causes are culpable.” W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 52, at 347 (5th ed. 1984). See also Restate *1093 ment (Second) of Torts § 433A(2), cmt. i (1965). The single injury rule places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff. Id. § 433B(2), cmt. d (1965). In this case, the court, as the factfinder, found it impossible to apportion Lovely’s injuries between the March and the April incidents. It should therefore have held Allstate hable for all of the damage to Lovely’s elbow. On remand, the court should assess additional damages attributed to the indivisible elbow injuries.

The entry is:

Judgment vacated.

Remanded for further proceedings consistent with the opinion herein.

All concurring.

. Travelers carried underinsured motorist coverage for Lovely's employer. Allstate carried Lovely’s personal underinsured motorist coverage. Cleo Oliver's insurance company paid the $50,-000 limit of her policy before Lovely filed his complaint. Travelers was dismissed from the case by consent of the parties after payment of $25,714.27. Allstate remained in the case, but by stipulation is responsible only for damages within its policy limits that exceed $75,714.27, the amount already paid by Oliver’s insurer and by Travelers.

. At trial, Allstate also disputed the overall extent of damages sustained by Lovely due to other injuries. Neither parly has challenged the court's determinations on those other injuries.