United States District Court, D. Kansas
JEFFREY D. CHAMBERS, Plaintiff,
TIMOTHY A. FIKE; CRETE CARRIER CORPORATION, Defendants.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
On October 31, 2011, plaintiff was involved in a vehicular accident with a truck owned by defendant Crete Carrier Corporation and driven by defendant Timothy Fike, a Crete employee at the time of the accident. Plaintiff filed this lawsuit alleging injuries, loss of income, and other damages caused by the negligence of the driver working for Crete. It is agreed that Crete is vicariously liable for the negligence of its driver. Doc. No. 85, p. 2. Part of plaintiff's damages claim is $981, 000.00 for lost income and earning capacity. Doc. No. 85, p. 3.
This case is now before the court upon defendant Crete's motion for partial summary judgment and its motion to exclude the opinion testimony of Chet Buchman, an expert witness plaintiff has offered to support plaintiff's claims of economic loss. Doc. Nos. 89 and 87. The motion for partial summary judgment asks that the court grant defendants summary judgment against plaintiff's claims for lost income and earning capacity.
The arguments in the two motions overlap. Some of the arguments relate to the legal question of whether plaintiff can make a damages claim for a loss defendant contends was suffered by plaintiff's business, which is a single-member LLC. Other arguments relate to whether the testimony of plaintiff's expert is admissible on the issue of plaintiff's economic loss.
I. PROCEDURAL STANDARDS
In order to warrant summary judgment, defendant must show that there is no genuine issue as to any material fact relating to the claim defendant argues should be dismissed as a matter of law. FED.R.CIV.P. 56(a). Defendant has the burden of identifying the portions of the record which demonstrate the absence of a genuine issue of material fact. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1118 (10th Cir. 2014). If that burden is met, plaintiff has the burden to set forth specific facts showing that there is a genuine issue for trial as to those matters for which plaintiff has the burden of proof. Travis v. Park City Mun. Corp., 565 F.3d 1252, 1258 (10th Cir.) cert. denied, 558 U.S. 956 (2009).
Defendant's motion to exclude is a motion in limine. It challenges whether Buchman's testimony is relevant and reliable and admissible under FED.R.EVID. 702. Plaintiff has the burden of showing that Buchman's proposed testimony meets these requirements and the court has considerable latitude in determining whether plaintiff has met this burden. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.) cert. denied, 558 U.S. 815 (2009). Motions in limine seek rulings in advance of trial which may save the parties and the court time and effort, as well as interruption of the trial. See Mendelsohn v. Sprint/United Management Co., 587 F.Supp.2d 1201, 1208 (D.Kan. 2008). It has been recognized in many cases that "evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Id .; see also, First Savings Bank v. U.S. Bancorp, 117 F.Supp.2d 1078, 1082 (D.Kan. 2000) ("it is the better practice to wait until trial to rule on objections when admissibility substantially depends upon what facts may be developed there"). It is also recognized that "in limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial." Ohler v. U.S., 529 U.S. 753, 758 n.3 (2000); see also, Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D.Kan. 2007).
The court will rule upon the issues raised by defendant's motions as follows.
II. PLAINTIFF MAY BRING A CLAIM FOR LOSS OF INCOME AT TRIAL.
Plaintiff is the single owner of the Smoky Valley Nursery ("SVN"), LLC. This is a business which sells and plants trees and performs landscaping work. Plaintiff shows any income from SVN on his tax returns as his own income. But, SVN operates as a separate legal entity from plaintiff. Defendant asserts that the loss of income alleged by plaintiff is actually income of SVN. Defendant also argues that plaintiff has no standing to claim the alleged loss of income incurred by SVN.
In general, the law in Kansas provides that a jury may award damages for economic loss, including lost income, shown by the evidence. P.I.K. Civil 4th § 171.02. The loss must be the natural and probable consequence of the wrongful act. See Hale v. Brown, 197 P.3d 438, 440 (Kan. 2008). When faced with a question similar to that raised by defendant in this case, Judge Melgren of this district held that a single-member owner of a LLC could not recover for his LLC's loss of profits resulting from the owner's injuries in a vehicular accident, but that the owner could claim damages for his own lost earnings or income. Greenburg v. Cure, 2013 WL 1767792 *2-4 n.24 (D.Kan. 4/24/2013). Following this course, the court holds that plaintiff may not recover for his LLC's lost profits, but that plaintiff may bring a claim for lost income caused by defendants' negligence. This ruling does not foreclose the possibility that competent evidence of SVN's lost profits or other business losses would be admissible as proof of plaintiff's economic loss.
Defendant Crete also argues that plaintiff may not bring a claim for the loss of trees caused after plaintiff's alleged injuries prevented plaintiff from planting and caring for the trees. It appears undisputed that the trees at the nursery belong to the LLC. Plaintiff may not recover from defendants for the alleged damage to this LLC property. See In re Tax Exemption of Kouri Place, LLC, 239 P.3d 96, 99 (Kan.App. 2010) (a member of a LLC does not own the company's property); JCM, LLC v. Heinen Bros. Agra Services, Inc., 2013 WL 6480655 *4 (D.Kan. 12/10/2013) (LLC members have no ownership interest in LLC property). But, plaintiff may recover for any lost income which is the natural and probable consequence of negligence for which defendants are responsible. Consequently, it is possible that proof of damage to trees or reduction in tree inventory may be relevant to a plaintiff's claim of loss of earnings. As explained later in this order, however, the court shall exclude plaintiff's expert's tree loss analysis as it relates to lost income.
Part of defendant's argument against plaintiff's claim for damages for the future value of SVN's trees relates to the proper measure of those damages. Defendant suggests that damages incurred from the death of trees should be measured by their replacement cost. Because it is unclear what the evidence will be regarding tree loss or how the evidence relates directly to plaintiff's income loss, the court will not attempt to decide this argument at this time.
III. DEFENDANT'S EVIDENTIARY CHALLENGES ARE PARTIALLY MERITORIOUS, BUT DO NOT WARRANT SUMMARY JUDGMENT GIVEN THE RECORD BEFORE THE COURT.
A. Defendant's arguments do not foreclose evidence supporting plaintiff's claim of lost income.
Defendant argues that the court should bar Buchman's proposed expert testimony. It is possible, however, that plaintiff could support his claims of lost income without the testimony of Buchman. Kuhl v. Atchison, Topeka & Santa Fe Ry. Co., 827 P.2d 1, 10 (Kan. 1992) (expert evidence is not required to prove lost income); see also, Hare v. Wendler, 949 P.2d 1141, 1143 (Kan. 1997) (Kansas law does not require expert testimony on a claim for damages). Defendant admits for the purposes of the motions before the court that plaintiff works fewer hours because of his injuries. While defendant asserts that, aside from Buchman's testimony, plaintiff has no other proof of loss of income which satisfies a rational standard, this contention is not established in the statement ...