Robert Paul Jackson v. Pamela S. Brown, Administratrix, etc.

West Virginia Supreme Court of Appeals6/1/2017

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Full Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2017 Term
_______________ FILED

June 1, 2017

No. 16-0724 released at 3:00 p.m.
RORY L. PERRY II, CLERK

_______________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

ROBERT PAUL JACKSON, and THE

JOELYNN FAMILY PRESERVATION TRUST,

Petitioners

v.

PAMELA S. BROWN, as Administratrix of
the Estate of Harry Edward Myer, Jr.,
Respondent

____________________________________________________________

Appeal from the Circuit Court of Ritchie County

The Honorable Timothy L. Sweeney, Judge

Civil Action No. 14-C-36

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH

DIRECTIONS

____________________________________________________________

Submitted: May 23, 2017
Filed: June 1, 2017

David A. Mohler, Esq. Rodney C. Windom., Esq.
Joshua A. Johnson, Esq. Scott A. Windom, Esq.
Bowles Rice LLP Windom Law Offices PLLC
Charleston, West Virginia Harrisville, West Virginia
Counsel for Petitioners Counsel for Respondent

JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. West Virginia Code § 44D-10-1010(c) [2011], contained in the West

Virginia Uniform Trust Act, provides that a claim based on a tort committed by a trustee

in the course of administering a trust may be asserted in a judicial proceeding against the

trustee in the trustee’s fiduciary capacity, whether or not the trustee is personally liable

for the claim.

2. To the extent this Court’s prior rulings in Massey v. Payne, 109

W.Va. 529, 155 S.E. 658 (1930), and Marion v. Chandler, 139 W.Va. 596, 81 S.E.2d 89

(1954), conflict with W.Va. Code §§ 44D-10-1010(b) and (c) [2011], those cases are

overruled.
Justice Ketchum:

The defendants below, Robert Paul Jackson (“Defendant Jackson”) and the

Joelynn Family Preservation Trust (“the Trust”), appeal from the July 6, 2016, order of

the Circuit Court of Ritchie County denying their motion for a new trial following a jury

verdict of $543,202.17 in favor of Plaintiff Pamela S. Brown (“plaintiff”) in a wrongful

death action arising from an automobile accident. On appeal, Defendant Jackson asserts

that the circuit court erred by: 1) granting summary judgment to the plaintiff on the issue

of Defendant Jackson’s liability for causing the automobile accident; 2) denying his post

trial motion for judgment as a matter of law1 on the issue of whether the Trust was liable

for Defendant Jackson’s tort; and 3) incorrectly awarding prejudgment interest on an

award for lost wages.

After review, we affirm the circuit court’s summary judgment ruling on the

issue of Defendant Jackson’s liability. However, we reverse the circuit court’s denial of

1
Defendant Jackson filed this motion as a “motion for judgment notwithstanding
the verdict.” However, pursuant to Rule 50(b) of the West Virginia Rules of Civil
Procedure this motion is properly labeled as a motion for “judgment as a matter of law.”
As this Court noted in Fredeking v. Tyler, 224 W.Va. 1, 4, 680 S.E.2d 16, 19 (2009):

Prior to the amendment of Rule 50 in April 1998, a
post-trial motion for judgment as a matter of law was called a
“motion for judgment notwithstanding the verdict” or
“motion for judgment non obstante veredicto,” and we note
that these vestigial terms continue to occasionally litter both
this Court’s opinions and the arguments of attorneys.

1

Defendant Jackson’s post-trial motion for judgment as a matter of law on the issue of the

Trust’s liability. Our review reveals that Defendant Jackson was not “in the course of

administering” the Trust when the automobile accident occurred. Therefore, under

W.Va. Code § 44D-10-1010(c) [2011], contained in the West Virginia Uniform Trust

Code, the Trust is not liable for Defendant Jackson’s tort. Finally, we affirm the circuit

court’s award of prejudgment interest on the plaintiff’s lost wages damage award.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of June 7, 2014, Defendant Jackson drove a 1999 Ford F

350 flat-bed truck2 to a restaurant in Ritchie County, West Virginia, where he ate

breakfast. Following breakfast, Defendant Jackson went to an Ace Hardware Store in

Ritchie County where he purchased “six or seven joints of plastic pipe” that he was

planning to install “in the ground as a French drain to get water away (from the residence

that he lived in).” After loading the plastic pipes into his truck, Defendant Jackson drove

a short distance before coming to a stop at the intersection of Ritchie Industrial Park

Road and U.S. Route 50.

2
This Ford truck was owned by Venture Petroleum. Defendant Jackson testified,
“I got an oil company [Venture Petroleum], small one. . . . And [the Ford Truck] was
always in Venture Petroleum.” Venture Petroleum is not a named defendant in this case.
For ease of the reader, we generally refer to the Ford truck as “Defendant Jackson’s
truck.”

2

U.S. Route 50 is a four-lane divided highway. Defendant Jackson’s truck

was perpendicular to Route 50 as he was stopped at the intersection. His plan was to

drive straight across the two eastbound lanes and make a left turn to merge into the

westbound lanes of Route 50. Defendant Jackson testified that before attempting to drive

his truck across the eastbound lanes of Route 50, he looked to his left and noticed a semi-

truck coming toward him. Believing that he had enough time to clear the two eastbound

lanes in front of the semi-truck, Defendant Jackson proceeded into the eastbound lanes of

the highway. However, Defendant Jackson did not see a motorcycle that was also

traveling eastbound on Route 50 that was being driven by the decedent, Harry Myer, Jr.

(“Decedent Myer”).3

Decedent Myer was traveling in the right or slow eastbound lane of Route

50 when Defendant Jackson’s truck entered the highway. Though Decedent Myer

applied his brakes, as evidenced by skid marks in the slow lane of Route 50, he crashed

his motorcycle into the left rear quarter panel of Defendant Jackson’s truck. The

3
Defendant Jackson was asked during his deposition if he saw the motorcycle
when he started across the intersection, he stated: “No. I never seen a motorcycle until I
got past the tractor-trailer.” Defendant Jackson then testified that he saw the motorcycle
in his “peripheral vision” just before the collision occurred. He explained, “[I]t wasn’t
like I turned and looked at it [the motorcycle]. I mean, I could see it, and I was just
getting out [sic] the way, and I didn’t dwell on how it is, but I knew that – I knew it had –
I knew I had to get out of the way, and I was afraid he was in trouble. And I was afraid
that I wasn’t going to get out far enough, and I didn’t. I lacked a foot-and-a-half of
getting away.”

3

collision occurred in the right or slow eastbound lane. Decedent Myer was injured and

later died at the scene of the accident as a result of the injuries he suffered in the crash.

Following the crash, the West Virginia State Police conducted an

investigation. A West Virginia State Policeman, Corporal J.L. Brewer, completed a

“Uniform Traffic Crash Report” in which he determined that Defendant Jackson “failed

to yield the right of way” at the intersection in violation of W.Va. Code § 17C-9-1.

Corporal Brewer’s report provided that the crash occurred in the right eastbound lane of

Route 50 near the hash marks that divide the slow and fast lanes. Further, the report

concluded that Decedent Myer did not commit any traffic violations. The complete

narrative description contained in the report describing the accident is as follows:

[Decedent Myer’s motorcycle] was traveling east
bound on U.S. Route 50. [Defendant Jackson’s truck] was
coming from Ace Hardware and sitting at the intersection of
Ritchie County Industrial Park Road and U.S. Route 50. As
[Decedent Myer’s motorcycle] was approaching the Ritchie
County Industrial Park Road intersection, [Defendant
Jackson] pulled [his truck] onto U.S. Route 50 causing
[Decedent Myer’s motorcycle] to collide into the left rear
quarter panel of [Defendant Jackson’s truck]. [Decedent
Myer’s] motorcycle collided with [Defendant Jackson’s
truck] in the east bound driving lane of U.S. Route 50 near
the passing hash marks.

[Decedent Myer] applied [the motorcycle’s] brakes
approximately 89 feet before colliding with [Defendant
Jackson’s truck].

The plaintiff, Pamela Brown, as Administratrix of Decedent Myer’s estate,

filed a wrongful death action against Defendant Jackson in September of 2014. During

Defendant Jackson’s deposition, the plaintiff learned about the existence of the Joelynn

4

Family Preservation Trust.4 Defendant Jackson testified that he created this Trust, that he

was a trustee, and that the three Trust beneficiaries are his sister, Judith Basile, and his

two adult children, Jessica Jackson and Joseph Jackson. Additionally, Defendant Jackson

testified that the house that he resides in is owned by the Trust.

After Defendant Jackson’s deposition, the plaintiff amended her complaint

and named the Joelynn Family Preservation Trust as an additional defendant. The

plaintiff’s amended complaint alleged that Defendant Jackson was acting “as a Trustee

and agent for . . . the Joelynn Family Preservation Trust” when he purchased the plastic

pipe at the hardware store for the “sole purpose of benefitting [the Trust] by improving

real estate owned by, and titled to the Trust.”

On February 1, 2016, the plaintiff filed a motion for partial summary

judgment “on the issue of liability.” Specifically, the plaintiff argued that she was

entitled to summary judgment on the issue of Defendant Jackson’s liability based on the

following: 1) Defendant Jackson pulled into the path of Decedent Myer in the right lane

of Route 50; 2) Decedent Myer had the right-of-way while traveling in the right lane and

Defendant Jackson failed to yield to oncoming traffic; 3) Corporal Brewer’s report

4
It appears from Defendant Jackson’s deposition that the trust was formed in 1993
“after the trial I had . . . in the divorce deal.” The Trust is a “voluntary Inter Vivos Trust
with a corpus of assets consisting of certain real and/or personal property.” The Trust
provides that it “shall be domiciled in and shall be interpreted and construed under the
laws of The State of West Virginia.”

5

concluded that Decedent Myer had not committed any traffic violations, and cited

Defendant Jackson for failing to yield the right-of-way at the intersection; 4) an expert

witness, testifying on behalf of the plaintiff, testified that Defendant Jackson caused the

accident by pulling onto Route 50 and failing to yield to Decedent Myer’s motorcycle;

that Decedent Myer reacted within 2.8 seconds when Defendant Jackson pulled onto the

highway; and that Decedent Myer “was alert and attentive and that he did . . . respond to

the movement of the truck out into the intersection;” and 5) Defendant Jackson did not

offer any expert testimony to rebut the plaintiff’s expert’s conclusion that Defendant

Jackson’s act of negligently pulling onto the highway and failing to yield to oncoming

traffic caused the accident.

Defendant Jackson opposed this motion, arguing that the jury should be

allowed to consider Decedent Myer’s comparative fault. In support of this argument,

Defendant Jackson argued that the motorcycle’s skid marks started in the middle of the

right lane and proceeded toward the “lane-dividing lines.” However, the skid marks

remained in the motorcycle’s lane of travel. Essentially, Defendant Jackson argued that

because the skid marks demonstrated that Decedent Myer’s motorcycle traveled from the

middle of the right lane toward the left edge of the right lane, the jury should decide

“whether [Decedent] Myer acted as a reasonably prudent person . . . by swerving left

instead of right and possibly avoiding the collision.”

The circuit court granted the plaintiff’s motion for summary judgment on

liability. The circuit court’s detailed order explains:

6

It is undisputed that [Decedent] Myer had the right-of
way while traveling on U.S. Route 50 and had the right to
operate his vehicle in the entirety of his lane of travel; and,
that Defendant Robert Paul Jackson had the duty to yield to
oncoming traffic while he was stopped on Ritchie County
Industrial Park Road, waiting to cross the eastbound lanes of
U.S. Route 50.

The physical evidence, the results of the crash
investigation by West Virginia State Police . . . and the sworn
deposition testimony of Plaintiff’s expert witness crash re-
constructionist . . . who is the only crash expert witness
identified by the parties—conclude that [Decedent Myer] was
lawfully traveling at or below the posted speed limit in the
right hand, eastbound lane of U.S. Route[.]

The undisputed physical and sworn deposition
testimony . . . showed Defendant Jackson pulled across both
eastbound lanes of U.S. Route 50 . . . in the face of oncoming
traffic in a futile effort to safely reach the westbound lanes of
the four-lane highway. . . .

Defendant Jackson breached his duty to yield the right-
of-way to the oncoming motorist [Decedent] Myer and
caused Mr. Myer to crash his motorcycle[.] . . .

Defendant Jackson has produced no expert witness to
offer testimony and opinion which would contradict the
findings and opinions of Plaintiff’s expert crash
reconstructionist[.] . . . In this regard, expert testimony is
required because the subject of inquiry is one involving
special skills or training not common to the ordinary person.

In a separate order, the circuit court denied a motion for summary judgment

filed by Defendant Jackson regarding the Trust’s liability. Defendant Jackson argued that

while he “could be held personally liable for the damages resulting from the collision,”

the plaintiff did not present any evidence that Defendant Jackson acted with the “sanction

of the Trust beneficiaries and under the Trust beneficiaries’ supervision and control at the

7

time of the accident.” Therefore, he argued the Trust could not be held liable. The circuit

court denied this motion, ruling:

There exists a genuine issue of material fact, in that the
jury may find that on June 7, 2014, [Defendant] Jackson was
acting on behalf of the Joelynn Family Trust when he traveled
to Ace Hardware to purchase a pipe for a French Drain,
which was to be installed at property which was owned by the
Joelynn Family Trust.

On May 11, 2016, a jury trial began on the issue of damages and on the

Trust’s liability. At the close of the plaintiff’s case, counsel for Defendant Jackson

moved for a directed verdict regarding the Trust’s liability. The circuit court denied this

motion, stating that the Trust beneficiaries were “around some while this work was being

performed [on Defendant Jackson’s residence] and they had been in the loop” on matters

regarding Trust property. The circuit court therefore ruled that the issue of the Trust’s

liability should be decided by the jury.

The jury returned a verdict in favor of the plaintiff in the amount of

$543,202.17.5 The jury was also asked: “Do you find that Robert Paul Jackson was

5
The jury’s damage award was as follows:

Lost wages and fringe benefits: $32,000.00; Funeral
Expenses: $9,384.25; Headstone: $1,817.92; Sorrow, Mental
Anguish and solace of Harry Myer Jr.’s Family, including
society companionship, comfort, guidance, kindly offices,
and advice: $300,000.00; Loss of services, protection, care
and assistance provided by Harry Edward Myer, Jr.:
$200,000.00.

8

acting as an agent of the Joelynn Family Preservation Trust when he killed Harry Edward

Myer, Jr.?” The jury answered this question in the affirmative.

Defendant Jackson filed post-trial motions requesting that the circuit court

reverse its summary judgment ruling on Defendant Jackson’s liability, enter judgment as

a matter of law that the Trust was not liable for Defendant Jackson’s action, or, in the

alternative, order a new trial on the Trust’s liability based upon the court’s refusal to

properly instruct the jury regarding a trustee’s liability. The circuit court denied these

motions by order entered on July 6, 2016. Defendant Jackson subsequently filed the

instant appeal.

II.

STANDARD OF REVIEW

This case involves assignments of error related to the circuit court’s rulings

on three diverse issues to which different standards of review apply. The standards of

review specific to the issues raised will be discussed in the Analysis section of this

Opinion.

III.

ANALYSIS

The defendants assert that the circuit court erred by: 1) granting summary

judgment to the plaintiff on the issue of Defendant Jackson’s liability; 2) denying his

post-trial motion for judgment notwithstanding the verdict on the issue of the Trust’s

9

liability; and 3) incorrectly awarding prejudgment interest on an award for future lost

wages.

A. Summary Judgment on Liability

The first issue we address is whether the circuit court erred by granting the

plaintiff’s motion for summary judgment on Defendant Jackson’s liability for causing the

accident. Defendant Jackson argues that the jury should have been allowed to consider

Decedent Myer’s comparative fault. By contrast, the plaintiff argues that the circuit court

correctly determined that she was entitled to summary judgment on the issue of liability.

The plaintiff asserts that there was no evidence demonstrating Decedent Myer’s

comparative fault.

Our review of this issue begins with the applicable standard of review. We

have held that “[a] circuit court’s entry of summary judgment is reviewed de novo.”

Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We have

also stated that “[s]ummary judgment is appropriate if, from the totality of the evidence

presented, the record could not lead a rational trier of fact to find for the nonmoving

party, such as where the nonmoving party has failed to make a sufficient showing on an

essential element of the case that it has the burden to prove.” Syllabus Point 2, Williams

v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). As this Court noted in

Painter, “the party opposing summary judgment must satisfy the burden of proof by

offering more than a mere ‘scintilla of evidence,’ and must produce evidence sufficient

10

for a reasonable jury to find in a nonmoving party’s favor.” 192 W.Va. at 192-93, 451

S.E.2d at 758-59 (internal citation omitted).

In addition to the foregoing, this Court has provided clear direction on

whether a comparative fault or negligence claim6 should be decided by a jury or by the

court. In Syllabus Point 2 of Reagar v. Anderson, 179 W.Va. 691, 371 S.E.2d 619

(1988), this Court held, in relevant part, “[i]n a comparative negligence or causation

action the issue of apportionment of negligence or causation . . . where the facts are

undisputed and reasonable minds can draw but one inference from them should . . . be

determined as a matter of law.”7

6
This Court modified our contributory negligence law in State v. Bradley, 163
W.Va. 332, 256 S.E.2d 879 (1979), adopting the doctrine of comparative fault or
comparative negligence. Under Syllabus Point 3 of Bradley, “[a] party is not barred from
recovering damages in a tort action so long as his negligence or fault does not equal or
exceed the combined negligence or fault of the other parties involved in the accident.”
However, W.Va. Code §§ 55–7–13a through -13d [2015] modified West Virginia’s
comparative fault law to bar recovery only where the plaintiff’s fault is greater than the
combined fault of all other persons responsible for the damages. The foregoing statutes
apply to all causes of action arising or accruing on or after May 25, 2015. See W.Va.
Code § 55-7-13d(h) [2016]. The instant matter involves an automobile accident that
occurred in June of 2014. Thus, the comparative fault law announced in Bradley applies
to this case.
7
See also Syllabus Point 4, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330
(1966) (“When the material facts are undisputed and only one inference may be drawn
from them by reasonable minds the questions of negligence and contributory negligence
are questions of law for the court.”); Syllabus Point 1 of Graham v. Crist, 146 W.Va.
156, 118 S.E.2d 640 (1961) (“When the evidence is conflicting, or when the facts, though
undisputed, are such that reasonable men may draw different conclusions from them, the
questions of negligence and contributory negligence are for the jury.”); Syllabus Point 3,
(continued . . .)

11

In the instant case, the facts regarding the collision are undisputed. First,

Defendant Jackson failed to yield the right-of-way to oncoming traffic when he attempted

to drive his truck across the eastbound lanes of Route 50 and make a left turn into the

westbound lanes. This Court has held that “[t]he making of a left turn . . . across

oncoming traffic is one of the most dangerous movements a vehicle can make on the

highway, and the driver of a vehicle making such movement must ascertain if it can be

done with reasonable safety.” Syllabus Point 1, in part, Addair v. Bryant, 168 W.Va. 306,

284 S.E.2d 374 (1981) (emphasis added).

Next, as noted in the police report, Defendant Jackson’s failure to yield was

a violation of W.Va. Code § 17C-9-1. This Court has held that a “[v]iolation of a statute

is prima facie evidence of negligence.” Syllabus Point1, in part, Anderson v. Moulder,

183 W.Va. 77, 394 S.E.2d 61 (1990). It is undisputed that Corporal Brewer concluded in

his police report that Decedent Myer did not commit any traffic violations relating to the

collision.

Importantly, there was no evidence indicating that the plaintiff was

negligent in any manner. The only expert who testified in this matter stated that

Defendant Jackson caused the accident by pulling onto Route 50 and failing to yield to

Graham (“When the material facts are undisputed and only one inference may be drawn
from them by reasonable minds the questions of negligence and contributory negligence
are questions of law for the court.”).

12

Decedent Myer. This expert, Daniel Aerni, testified on behalf of the plaintiff and stated

that Decedent Myer was traveling between 55 to 64 mph, which was below the posted

speed limit, “at the start of the 89-foot skid[.]” Regarding the amount of time it took

Decedent Myer to react to Defendant Jackson pulling onto Route 50, the expert testified:

I calculated that the truck driven by Mr. Jackson accelerated
over a distance of about 52 feet and that it took him about 4.2
seconds to do so. . . . Furthermore, I calculated that the skid
by Mr. Myer took about 1.34 seconds, as I recall, the
difference being about 2.8 seconds. That is the amount of
time that I obtain between the very start of the acceleration by
Mr. Jackson and the application of the brakes by Mr. Myer.

The expert testified that Decedent Myer’s motorcycle was within 320 feet

of the impact location when Defendant Jackson began accelerating onto Route 50 and

stated “[s]o I believe the motorcycle was in the right eastbound lane in front of the semi

and that Mr. Jackson simply somehow failed to detect the motorcycle.” Additionally, the

expert testified that “the skid gives me reason to believe that Mr. Myer was alert and

attentive and that he did . . . respond to the movement of [Defendant Jackson’s] truck out

into the intersection.” Finally, the expert testified that the point of impact occurred near

the hash-mark line separating the two lanes of Route 50, “just a tiny bit on the slow lane

side.”

Defendant Jackson asserts, however, that the jury should have been allowed

to consider Decedent Myer’s comparative fault because the skid mark evidence

13

demonstrates that his motorcycle remained in the right lane but traveled from the middle

of the lane toward the left edge of the right lane.8 Therefore, according to Defendant

Jackson, the jury should decide “whether [Decedent] Myer acted as a reasonably prudent

person . . . by swerving left instead of right and possibly avoiding the collision.”

After review, we find that the material facts are undisputed and that

“reasonable minds can draw but one inference from them.” Reagar, Syllabus Point 2.

The undisputed material facts demonstrate that Decedent Myer was traveling below the

speed limit in the right lane of Route 50 when Defendant Jackson failed to yield to

oncoming traffic in violation of W.Va. Code § 17C-9-1. Confronted with the sudden

emergency created by Defendant Jackson, Decedent Myer applied his brakes within 2.8

seconds of Defendant Jackson entering the highway. In Syllabus Point 3 of Poe v.

Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965), this Court held:

A person in a sudden emergency, not created in whole
or in part by his own negligence, who acts according to his
best judgment or who, because of insufficient time for
reflection, fails to act in the most judicious manner, is not

8
In Syllabus Point 2, in relevant part, of Addair, this Court held:

Contributory negligence on the part of the plaintiff is
an affirmative defense. There is a presumption of ordinary
care in favor of the plaintiff, and where the defendant relies
upon contributory negligence, the burden of proof rests upon
the defendant to show such negligence unless it is disclosed
by the plaintiff’s evidence or may be fairly inferred by all of
the evidence and circumstances surrounding the case.

14

guilty of negligence if he exercises the degree of care which
would be exercised by a reasonably prudent person in like
circumstances.

We reiterate that Decedent Myer applied his brakes within 2.8 seconds of

Defendant Jackson creating the sudden emergency by failing to yield to oncoming traffic

and pulling onto Route 50. After applying his brakes, the skid mark evidence reveals that

Decedent Myer’s motorcycle skidded for approximately 89 feet, starting in the center of

the right lane and colliding with Defendant Jackson’s truck near the left edge of the right

lane. There is no evidence that Decedent Myer left the right lane at any time during the

course of this accident. Under these facts, we find that Decedent Myer acted as a

reasonably prudent person by applying his brakes within 2.8 seconds and by staying in

the right lane throughout the sudden emergency caused by Defendant Jackson.

We also emphasize that the only expert to testify in this matter stated that

Defendant Jackson was at fault for causing the accident. The expert did not find any fault

with the actions Decedent Myer’s took when he was confronted with the sudden

emergency caused by Defendant Jackson. In fact, the expert testified that Decedent

Myer’s actions demonstrated that he was “alert and attentive” when confronted with the

sudden emergency caused by Defendant Jackson’s failure to yield to oncoming traffic.

Finally, we note that the only evidence cited by

Defendant Jackson in support of his position is the testimony of the plaintiff’s expert and

of Corporal Brewer. However, the plaintiff’s expert testified that Defendant Jackson

caused the accident and did not offer any testimony that Decedent Myer was negligent in

15

any manner. Likewise, Corporal Brewer’s investigation concluded that Defendant

Jackson failed to yield to oncoming traffic in violation of W.Va. Code § 17C-9-1, and

that Decedent Myer did not commit any traffic violations. Therefore, we find Defendant

Jackson’s argument fails.

Based on all of the foregoing, we find no error with the circuit court’s

ruling granting summary judgment to the plaintiff on the issue of Defendant Jackson’s

liability.

B. Trust Issue

The next assignment of error is whether the circuit court erred when it

denied Defendant Jackson’s post-trial motion for judgment as a matter of law on the issue

of the Trust’s liability for Defendant Jackson’s tort.

Our standard of review for a circuit court’s denial of a motion for judgment

as a matter of law was set forth in Syllabus Points 1 and 2 of Fredeking, 224 W.Va. 1,

680 S.E.2d 16:

The appellate standard of review for an order granting
or denying a renewed motion for a judgment as a matter of
law after trial pursuant to Rule 50(b) of the West Virginia
Rules of Civil Procedure [1998] is de novo.

When this Court reviews a trial court’s order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the
evidence was such that a reasonable trier of fact might have

16
reached the decision below. Thus, when considering a ruling
on a renewed motion for judgment as a matter of law after
trial, the evidence must be viewed in the light most favorable
to the nonmoving party.9
This issue requires us to examine our law on whether, and under what

circumstances, a trust may be held liable for a tort committed by a trustee. Our review

begins with a review of our common law on this issue.10

9
We are also guided by Syllabus Point 5 of Orr v. Crowder, 173 W.Va. 335, 315
S.E.2d 593 (1983), in which this Court held:

In determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts
which the prevailing party’s evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts
proved.
10
In Syllabus Point 2 of Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816
(1988), the Court provided the following general description of a “trust”:

A “trust” is a legal relation between two or more
persons by virtue of which one is bound to hold property to
which he has the legal title, for the use or benefit of the other
or others who have an equitable title or interest. It is a right,
enforceable in equity, to the beneficial enjoyment of property,
real or personal, of which the legal title is in another. The
person so holding the legal title or interest is called the
“trustee,” and the one having the equitable interest and
entitled to the benefit is the beneficiary or “cestui que trust.”
The person creating the trust is called the “trustor” or
“settlor.” An essential feature of trusts is the division of the
title to property, the vesting of the legal title in the trustee and
(continued . . .)

17

This Court set forth our common law rule addressing the liability of a trust

for a tort committed by a trustee in Massey v. Payne, 109 W.Va. 529, 155 S.E. 658

(1930), and Marion v. Chandler, 139 W.Va. 596, 81 S.E.2d 89 (1954). In Syllabus Point

1 of Massey, decided by this Court in 1930, we held:

A trust estate is ordinarily not liable for torts
committed by the trustee, when he is entirely free from the
control of the beneficiary. And such a trustee is personally
liable to third persons for his torts in failing to keep the trust
property in repair, irrespective of his right to reimbursement.

(Emphasis added.)

Twenty-four years later, this Court had the opportunity to revisit this issue

in Marion v. Chandler. The Court in Marion, after describing a number of approaches

other jurisdictions had taken, reaffirmed the rule announced by Massey, stating, “[t]his

Court is committed to the general rule . . . A trust estate is ordinarily not liable for torts

committed by the trustee, when he is entirely free from the control of the beneficiary.”

139 W.Va. at 601-02, 81 S.E.2d at 93 (internal citation and quotation omitted).

In 2011, our Legislature enacted the “West Virginia Uniform Trust Code.”

See W.Va. Code § 44D-1-101 et seq. [2011]. By way of background, the model Uniform

Trust Code was promulgated in 2000 by “the National Conference of Commissioners on

Uniform State Laws [which] replaced the Uniform Trust Act with the Uniform Trust

of the equitable title or beneficial interest in the cestui que
trust.

18
Code.” Bogert’s Trusts and Trustees, § 732 (2016). After an extensive five-year study of

the model Uniform Trust Code by a probate committee of West Virginia lawyers, our

Legislature adopted the West Virginia Uniform Trust Code in 2011.11 It “applies to

express trusts . . . and trusts created pursuant to a statute, judgment, or decree that

requires the trust to be administered in the manner of an express trust.” W.Va. Code §

44D-1-102 [2011].

We now address the relevant provisions of the West Virginia Uniform

Trust Code to the instant matter. West Virginia Code § 44D-10-1010(b) [2011] provides

that a trustee is personally liable for torts committed in the course of administering a trust

if the trustee is personally at fault: “A trustee is personally liable for torts committed in

the course of administering a trust, or for obligations arising from ownership or control of

11
A description of this study is as follows:

The most significant undertaking of members of the
Probate Committee was their advocacy for the adoption of the
Uniform Trust Code in West Virginia. This important piece
of legislation was analyzed and studied by the Probate
Committee for five years before members of the Probate
Committee presented their recommended version of the West
Virginia Uniform Trust Code to the Legislature. This 120
page bill was enacted by the Legislature in 2010 as new
Chapter 44D of the West Virginia Code.

John F. Allevato, Probate Committee Serves West Virginia in a Number of Facets, 2016
March W.Va. Law. 18 (2016).

19

trust property, including liability for violation of environmental law, only if the trustee is

personally at fault.”

The West Virginia Uniform Trust Code also provides that a trust may be

liable for a tort committed by a trustee if the tort is “committed in the course of

administering a trust[.]” West Virginia Code § 44D-10-1010(c) [2011] provides, “[a]

claim based . . . on a tort committed in the course of administering a trust, may be

asserted in a judicial proceeding against the trustee in the trustee’s fiduciary capacity,

whether or not the trustee is personally liable for the claim.”

By way of background on the foregoing statute, we note that W.Va. Code §

44D-10-1010(c) contains the same language set forth in § 1010(c) of the model Uniform

Trust Code. The comment section to § 1010 of the model Uniform Trust Code expressly

provides that “[s]ubsection (c) alters the common law rule that a trustee could not be sued

in a representative capacity if the trust estate was not liable.” Further, we note that §

1010(c) of the model Uniform Trust Code and W.Va. Code § 44D-10-1010(c) are

consistent with the Restatement (Third) of Trusts § 105 (2012), which provides, “[a] third

party may assert a claim against a trust for a liability incurred in trust administration by

proceeding against the trustee in the trustee’s representative capacity, whether or not the

trustee is personally liable.”

Finally, we note that the approach set forth in the model Uniform Trust

Code, W.Va. Code § 44D-10-1010(c), and the Restatement (Third) of Trusts is followed

by a majority of jurisdictions:

20

As previously indicated, there has been a statutory trend
towards representative rather than individual liability of a
trustee. . . . [A] majority of United States jurisdictions have
adopted provisions of the Uniform Trust Code or the Uniform
Probate Code or adopted similar legislation that exempt a
trustee from personal liability for torts committed during the
administration of a trust unless the trustee is personally at
fault. These statutes give tort victims a right to satisfaction
from the trust assets that may be asserted in an action against
the trustee in his or her fiduciary capacity.

Bogert’s Trusts and Trustees, § 735 (2016).

While our Legislature adopted this majority rule by enacting W.Va. Code §

44D-10-1010(c), we note that W.Va. Code § 44D-10-1010(c) conflicts with our common

law rule on this issue. Our common law rule was set forth in two cases decided in 1930

and 1954, Massey and Marion, in which this Court held that a trust is ordinarily not liable

for torts committed by the trustee, when the trustee was free from the control of a trust

beneficiary. Thus, under our common law rule, the test to determine the trust’s liability is

whether the trustee was acting under the control of a trust beneficiary at the time the tort

occurred.

Under W.Va. Code § 44D-10-1010(c), the test is no longer dependent on

the degree of control a beneficiary exercises over the trustee at the time the tort occurred;

rather, the test is whether the trustee committed the tort “in the course of administering a

trust.” We recognize that “[o]ne of the axioms of statutory construction is that a statute

will be read in context with the common law unless it clearly appears from the statute that

the purpose of the statute was to change the common law.” Syllabus Point 2, Smith v.

West Virginia State Bd. of Educ., 170 W.Va. 593, 295 S.E.2d 680 (1982). In the instant

21

case, we find that the purpose of W.Va. Code § 44D-10-1010(c) was clearly to change

the common law rule on this issue, i.e., whether a claim based on a tort committed by a

trustee may be asserted against the trust.12

Based on the foregoing, we hold that W.Va. Code § 44D-10-1010(c),

contained in the West Virginia Uniform Trust Act, provides that a claim based on a tort

committed by a trustee in the course of administering a trust may be asserted in a judicial

proceeding against the trustee in the trustee’s fiduciary capacity, whether or not the

trustee is personally liable for the claim. To the extent this Court’s prior rulings in

Massey v. Payne, 109 W.Va. 529, 155 S.E. 658 (1930), and Marion v. Chandler, 139

W.Va. 596, 81 S.E.2d 89 (1954), conflict with W.Va. Code §§ 44D-10-1010(b) and (c),

those cases are overruled.

Applying this holding to the instant case, we must determine whether

Defendant Jackson was “in the course of administering” the Joelynn Family Preservation

Trust at the time the automobile accident occurred.

Pursuant to W.Va. Code § 44D-8-801 [2011], “the trustee shall administer

the trust and invest the trust assets in good faith, in accordance with its terms and

12
We note that the West Virginia Uniform Trust Code also provides that “[t]he
common law of trusts and principles of equity supplement this chapter, except to the
extent modified by this chapter or another statute of this state.” W.Va. Code § 44D-1-106
[2011]. While our common law generally supplements the West Virginia Uniform Trust
Code, it is clear that W.Va. Code § 44D-10-1010(c) modified our common law rule on a
trust’s liability for a trustee’s tort.

22

purposes and the interests of the beneficiaries, and in accordance with this chapter.” A

number of duties, responsibilities and obligations may be required of a trustee in the

course of “administering” a trust. These include: 1) collecting trust property; 2)

managing, acquiring, insuring, or selling trust property; 3) managing trust money; 4)

managing trust stocks or other securities; 5) managing trust business organizations; 6)

paying taxes and other expenses incurred in the course of administering the trust; 7)

signing and delivering contracts and other instruments relating to trust business; and 8)

terminating the trust. See Uniform Trust Code § 816.

Moreover, one law review article described the type of third parties who

typically interact with a trustee and who would typically assert a claim against a trust for

a tort that occurred in the course of a trustee administering the trust:

Third persons, in trust law parlance, are persons other
than trustees and beneficiaries. These are the persons who
purchase property from the trust, sell property or provide
services to the trust, or otherwise engage in transactions with
the trustee. . . .

The provisions of the [Uniform Trust Code] addressing
trustee relations with third persons are built on the premise
that third persons should approach transactions with trustees
the same way they approach any other commercial deal. The
theory is that trust beneficiaries are helped more by the free
flow of commerce than they were by the largely ineffective
protective features of former law.

David M. English, The Uniform Trust Code (2000): Significant Provisions and Policy

Issues, 67 Mo. L. Rev. 143, 209 (2002) (emphasis added).

23

Returning to the instant case, the plaintiff asserts that because Defendant

Jackson bought pipe for his residence prior to the accident, the Trust is liable for his tort.

We disagree. Under the unique facts of this case, we conclude that Defendant Jackson

was not “in the course of administering” the Trust at the time the automobile accident

occurred. On the morning the accident occurred, Defendant Jackson drove into town and

ate breakfast. He then stopped at a hardware store to buy plastic pipe. While the pipe

was going to be used at his residence that is owned by the Trust, Defendant Jackson was

not directed to buy the pipe by any of the Trust beneficiaries,13 nor was he required to

buy the pipe by the Trust document. Further, there was no evidence that the pipe was

purchased with Trust money. Also, the truck Defendant Jackson was driving at the time

the accident occurred was not owned by the Trust. The truck was owned by Defendant

Jackson’s oil company, Venture Petroleum. This company was not named as a defendant

in this case.

13
While a beneficiary’s control over the trustee is not the test for determining
whether a trust is liable for a trustee’s tort under W.Va. Code § 44D-10-1010(c), we find
that a beneficiary’s control over the trustee may be relevant when considering whether a
trustee was “in the course of administering a Trust” at the time the tort occurred. As a
general matter, Defendant Jackson stated that when the property needs to be repaired, “I
mention I’m going to need to do it to the other trustees [beneficiaries], but I’m the one
that makes the decision on it.” Further, Defendant Jackson testified about decisions
regarding the property, “I live there and do it and it was my property to start with.” He
was then asked, “Ultimately the decision rests on you?” Defendant Jackson replied,
“Yes.”

24

Additionally, Decedent Myer did not conduct any business, provide any

services, engage in any transactions, or have any dealings whatsoever with the Trust.

The tort in this matter occurred because Defendant Jackson committed a traffic

violation— failure to yield to oncoming traffic. This traffic violation was not connected

to a duty, obligation, contract, or business transaction Defendant Jackson was carrying

out in furtherance of the Trust. Based on these undisputed facts, we conclude that the

Trust cannot be held liable for Defendant Jackson’s tort pursuant to W.Va. Code § 44D

10-1010(c) because he was not “in the course of administering” the Trust at the time the

accident occurred.

We therefore reverse the circuit court’s order denying the defendants’ post

trial motion for judgment as a matter of law on the Trust issue.14 On remand, the circuit

court is directed to enter an order providing that the Trust is not liable for Defendant

Jackson’s tort and dismissing the Trust from this case.

C. Prejudgment Interest

The final issue is whether the circuit court erred by awarding prejudgment

interest on the $32,000.00 damage award for “lost wages and fringe benefits.” Defendant

14
Defendant Jackson also asserted that the circuit court erred by refusing to
instruct the jury regarding a trustee’s personal liability. Because we find that Defendant
Jackson’s motion for judgment notwithstanding the verdict on the Trust issue should be
granted, the jury instruction assignment of error is moot.

25

Jackson argues that this award “is not a prejudgment loss or special damage under W.Va.

Code § 56-6-31.” Instead, Defendant Jackson argues that this award was for future lost

wages and that prejudgment interest is not available for such an award. Conversely, the

plaintiff argues that the $32,000.00 award for lost wages “was for special damages” and,

as such, was proper under W.Va. Code § 56-6-31 [2006].

Our standard of review for an award of prejudgment interest was set forth

in Gribben, et al v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995), in which this

Court provided:

In reviewing a circuit court’s award of prejudgment interest,
we usually apply an abuse of discretion standard. See
generally Perdue v. Doolittle, 186 W.Va. 681, 414 S.E.2d
442 (1992). Under the abuse of discretion standard, we will
not disturb a circuit court’s decision unless the circuit court
makes a clear error of judgment or exceeds the bounds of
permissible choices in the circumstances. However, when the
award hinges, in part, on an interpretation of our decisional or
statutory law, we review de novo that portion of the analysis.

West Virginia Code § 56-6-31(a) sets forth our law on prejudgment interest

in tort actions. It provides, in relevant part:

Except where it is otherwise provided by law, every
judgment or decree for the payment of money, whether in an
action sounding in tort, contract or otherwise, entered by any
court of this state shall bear interest from the date thereof,
whether it be so stated in the judgment or decree or not:
Provided, That if the judgment or decree, or any part thereof,
is for special damages, as defined below, or for liquidated
damages, the amount of special or liquidated damages shall
bear interest at the rate in effect for the calendar year in
which the right to bring the same shall have accrued, as
determined by the court and that established rate shall remain
constant from that date until the date of the judgment or

26
decree, notwithstanding changes in the federal reserve district
discount rate in effect in subsequent years prior to the date of
the judgment or decree. Special damages includes lost wages
and income, medical expenses, damages to tangible personal
property and similar out-of-pocket expenditures, as
determined by the court.

(Emphasis added.)

After review, we find that the circuit court did not err by awarding

prejudgment interest on the lost wages award. First, there is no question that the jury

awarded “lost wages” to the plaintiff and that “lost wages” are a special damage under

W.Va. Code § 56-6-31(a). Next, as this Court explained in Grove v. Myers, 181 W.Va.

342, 382 S.E.2d 536 (1989), prejudgment interest shall be awarded on such damages

from the date the cause of action accrued until the date judgment is rendered. In Syllabus

Point 3 of Grove, in part, this Court held, “[u]nder W.Va. Code, 56-6-31, as amended,

prejudgment interest is to be recovered on special or liquidated damages incurred by the

time of the trial, whether or not the injured party has by then paid for the same.”

The Court in Grove also stated in Syllabus Point 2, in part, that

“prejudgment interest on special or liquidated damages is calculated from the date on

which the cause of action accrued, which in a personal injury action is, ordinarily, when

the injury is inflicted.” Thus, according to this Court’s ruling in Grove, prejudgment

interest shall be awarded on special damages under W.Va. Code 56-6-31 from the date

the cause of action accrued until the date judgment is rendered.

In the present case, both parties presented expert financial testimony during

the trial. While the experts did not agree on the total value of Decedent Myer’s future

27

earning capacity, they did agree that Decedent Myer was making $32,000.00 per year at

the time of his death. Thus, it is clear that the jury awarded Decedent Myer the

equivalent of one year of lost wages—$32,000.00.

Additionally, the cause of action accrued on the date the accident took

place—June 7, 2014. The judgment was rendered on May 12, 2016. Therefore, the

plaintiff was entitled to a prejudgment interest award on the lost wages award because the

award was equivalent to one year of Decedent Myer’s salary which he would have

received between the date the cause of action accrued (2014) and the date the date

judgment was rendered (2016).

Defendant Jackson argues that prejudgment interest is not available on an

award for “future lost wages.” In support of this argument, Defendant Jackson relies on

Syllabus Point 15 of Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738

(1992), in which this Court held, “[f]uture wage loss, accruing after the jury verdict, is

not a prejudgment loss or special damage under W.Va. Code, 56-6-31 (1981).”

(Emphasis added). We find Defendant Jackson’s reliance on Pasquale is misplaced.

In Pasquale, the plaintiff asserted a wrongful death claim against a utility

company, and the jury awarded the plaintiff a substantial lost wages damage award. The

circuit court awarded prejudgment interest on the entire lost wages award and the

defendant appealed. On appeal, the defendant conceded “that it was proper to award

prejudgment interest on the potential earnings from August 19, 1987 [the date the cause

of action accrued], until trial,” but contended that prejudgment interest should not have

28

been awarded on future earnings after the verdict was rendered. 187 W.Va. at 311, 418

S.E.2d at 757. The Court ruled:

the plaintiff was entitled to recover prejudgment interest on
the decedent’s lost wages from the date of his death until the
date of the judgment on the jury verdict. However, the trial
court did not calculate prejudgment interest for this period
only, but calculated interest on the entire future wage loss.
Clearly, the future wage loss accruing after the jury verdict is
not a prejudgment loss or “special damage” under W. Va.
Code, 56-6-31.

(Emphasis added.)

In the present case, the $32,000.00 lost wages award was equivalent to one

year of Decedent Myer’s salary, which would have accrued between June 2014 (when the

accident occurred) and the trial date. Thus, it was proper under W.Va. Code 56-6-31 for

the circuit court to award prejudgment interest on this award.

IV.

CONCLUSION

Based on the foregoing, we affirm the circuit court’s ruling granting

summary judgment to the plaintiff on the issue of Defendant Jackson’s liability. We

reverse the circuit court’s ruling denying Defendant Jackson’s post-trial motion for

judgment as a matter of law on the issue of the Trust’s liability and remand the case to the

circuit court for entry of an order granting Defendant Jackson’s motion and dismissing

the Trust from this case. Finally, we affirm the circuit court’s award of prejudgment

interest on the plaintiff’s lost wages damage award.

29

Affirmed, in part; reversed, in part; and remanded with directions.

30

Robert Paul Jackson v. Pamela S. Brown, Administratrix, etc.

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