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What if the jury gives $0 for solace in death case?

Christa Wright testified that she and her husband had a close relationship and had no intention of separating when Anthony Edward Wright was killed in a motorcycle wreck in Frederick County in July 2004.

Two juries apparently believed otherwise, based on testimony that the couple were living apart and that she was having an affair during the month before Anthony’s death.

What the two panels did with that information varied substantially, however, and gave the Supreme Court of Virginia an opportunity on April 18 to clarify the effect of the failure to award any damages for solace in a wrongful death case.

In both trials, the jury was instructed to award damages in three categories: medical and funeral expenses; sorrow, mental anguish and loss of solace suffered by the widow; and any reasonably expected loss of income, services, care and assistance that the decedent had provided.

Christa Wright and her husband were both younger than 40 at the time of the crash. He worked as a truck driver. She was not employed. The jury also heard testimony that the widow entered into a new relationship within a few months of her husband’s death.

In the first trial, the jury awarded Christa Wright funeral and medical expenses and $942,535 in the loss of income category. But it awarded her nothing in the way of solace.

Defense attorneys asked Frederick Circuit Judge John E. Wetsel Jr. to set aside the verdict or grant a new trial. Awarding almost a million dollars for one category and nothing on another showed that the jury misunderstood the facts or the law, the attorneys contended.

Relying on Johnson v. Smith, 241 Va. 396 (1991), Wetsel granted a new trial on the issue of damages only. In that case, the Supreme Court had ordered a new trial for the beneficiaries of a decedent after a jury awarded them damages for lost income and services but nothing for solace. “This action by the jury renders the entire verdict suspect and leads to the conclusion that the jury must have misconceived or misunderstood the facts or the law,” the court said.

In the second Wright trial, the jury awarded the widow the medical and funeral expenses, but only a dollar for solace and nothing for support.

After the second trial, Wetsel noted that the two verdicts were consistent in that both juries found the marriage to be in a state of “emotional bankruptcy” and entered judgment on the second jury verdict.

Thomas K. Plofchan Jr., who represented the widow along with Marilyn Ann Solomon, recalled that Wetsel invited the attorneys “to go down to the James and have them untie the Gordian knot.” Plofchan appealed, asking the court to reinstate the first verdict.

The justices put their collective fingers to the task and distinguished Johnson in Wright v. Minnicks (VLW 008-6-048).

“We did not announce, in Johnson, an inflexible rule that every verdict for a plaintiff in a wrongful death case, regardless of the evidence, must be set aside as inadequate or inconsistent if it fails to include an award for solace damages,” Senior Justice Charles S. Russell wrote for a unanimous court.

In Johnson, the evidence was that the decedent was a model employee, husband and father, so that an award of damages for loss of income but not for solace was “incomprehensible,” Russell said.

By contrast, defense testimony about the deterioration of the Wright marriage justified the jury’s decision not to award any damages for solace.

“On the other hand, there was evidence to support a jury finding that the plaintiff was entitled to an award for loss of income,” Russell wrote. “Christa Wright testified that she was entirely dependent upon her husband for support.”

Therefore, he concluded, “[u]nlike the situation in Johnson, there was sufficient evidence in the first trial of the present case to support all parts of the original verdict.”

In finding no inconsistency in the jury verdict, the court did not have to consider an assignment of error that might have been of even greater interest to personal injury attorneys: a contention that only a plaintiff may seek a new trial because a verdict was too low.

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