author: BUCKINGHAM, Judge.

text:
    ROCKWELL INTERNATIONAL CORPORATION, Appellant, v. COMMONWEALTH of Kentucky, NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, Appellee.
    No. 1997-CA-001599-MR.
    Court of Appeals of Kentucky.
    Aug. 13, 1999.
    Discretionary Review Denied by Supreme Court May 10, 2000.

      Andrew L. Frey, Evan M. Tager, Miriam R. Nemetz, Washington, DC, M. Stephen Pitt, Virginia H. Snell, J. Anthony Goebel, Donald J. Kelly, Louisville, KY, for appellant.
    Kathryn M. Hargraves, Brenda G. Lowe, Frankfort, KY, for appellee.
    John S. Reed, Louisville, KY, William G. Fuqua, Russellville, KY, for Amicus Curiae Assoc. Industries of Ky.; Ky. Bankers Assoc.; Logan County Economic Development Commission; Andillinois Tool Works.
    Robert C. Moore, Frankfort, KY, for Amicus Curiae Senator Kim Nelson.
    Before: BUCKINGHAM, COMBS, and McANULTY, Judges.
   OPINION

BUCKINGHAM, Judge.

Rockwell International Corporation (Rockwell) appeals from a judgment of the Franklin Circuit Court finding Rockwell in violation of Kentucky environmental protection laws found in Kentucky Revised Statutes (KRS) Chapter 224 and regulations of the Natural Resources and Environmental Protection Cabinet (the Cabinet), enjoining Rockwell to correct those violations, and ordering Rockwell to pay the Cabinet its actual and necessary costs expended in response to the violations. We affirm.

Rockwell operated a plant in Russellville which manufactured gas meter components and typewriter housings from 1957 to 1989. The plant was then sold to a division of British Tire and Rubber, which operates the plant under the name BTR Precision Die Casting, Inc. (BTR). Rockwell used a hydraulic fluid which contained polychlorinated biphenyls (PCBs) in its manufacturing process. Rockwell apparently completed a conversion to non-PCB based hydraulic fluid by 1975. Nevertheless, during an inspection of the Rockwell facility in 1985, the Cabinet discovered PCBs.

Further investigation and testing by the Cabinet revealed that PCBs were present in the sediments of the Town Branch Creek and Mud River as well as in adjacent flood plain surface soils. Runoff from the plant flews into the Town Branch Creek through three drainage tributaries called North Ditch, South Ditch, and East Ditch. The Town Branch Creek flows into Mud River, and Mud River extends sixty-four miles from its confluence with the Town Branch Creek to the Green River.

In September 1985, the Cabinet issued an advisory warning that fish in the Town Branch Creek and Mud River contained PCBs. Rockwell began a program to determine the extent of the PCB problem, to prevent further releases, and to clean up existing contamination. Rockwell conducted extensive remediation at the plant site and conducted comprehensive studies to determine the nature and extent of potential ground water contamination. Rockwell also conducted risk assessments analyzing the risks to human health, safety, and the environment associated with PCBs in Town Branch, Mud River, and the surrounding flood plain.

In 1986, the Cabinet filed a complaint against Rockwell in the Franklin Circuit Court seeking enforcement of Kentucky’s environmental laws by injunctive relief. See KRS 224.99-020. Over the next several years, a series of agreed interim orders was entered by the trial court. In early 1995, Rockwell presented a final remediation plan to the Cabinet, which the Cabinet rejected. The Cabinet then sought a trial date, and the trial court conducted a bench trial in December 1995 and January 1996.

On March 24, 1997, the trial court entered a judgment finding Rockwell in violation of environmental protection statutes and regulations, enjoining Rockwell to correct the violations, and ordering Rockwell to pay the Cabinet its actual and necessary costs to respond to the violations. The trial court reserved the imposition of civil penalties until the cleanup and remediation were substantially completed. This appeal by Rockwell followed.

The parties have extensively briefed the arguments raised in Rockwell’s appeal, and amicus curiae briefs have also been filed. Numerous arguments have been raised in this complex case, and we will address the issues raised by Rockwell’s three arguments in the order in which they appear in Rockwell’s brief.

Rockwell’s first argument is that the trial court failed to determine the issues de novo. It argues that “the court proceeded as though it was engaged in appellate review of an administrative action.” It also contends that the court “merely found that the Cabinet’s determinations were not unreasonable ” and that “the court adopted as its findings long passages quoted verbatim from the Cabinet’s post-trial briefs.” Rockwell states that as this is not an appeal from an administrative agency adjudication, judicial deference to the Cabinet’s determinations is not appropriate. It urges this court to reject the trial court’s judgment on the basis of an alleged failure to determine the facts and issues de novo.

We have closely reviewed the trial court’s judgment and find no indication that the trial court viewed the case as merely a review of an administrative agency action. Although the trial court may have accepted the Cabinet’s arguments and view of the case, that by no means indicates that the trial court did not decide the issues de novo. In arriving at judgments, trial courts are generally faced with accepting the views of one party or the other. Furthermore, we find no error in the trial court’s adopting language from a party’s brief for use in its judgment. See Bingham v. Bingham, Ky., 628 S.W.2d 628, 629 (1982), and Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, Ky., 954 S.W.2d 954, 956 (1997). The trial court prepared its own lengthy judgment (forty-six pages), and there is no indication that the trial court failed to make its determinations de novo.

Rockwell’s second argument is that the trial court improperly applied KRS 224.01-400. KRS 224.01-400(18) provides as follows:

Any person possessing or controlling a hazardous substance, pollutant, or contaminant which is released to the environment, or any person who caused a release to the environment of a hazardous substance, pollutant, or contaminant, shall characterize the extent of the release as necessary to determine the effect of the release on the environment, and shall take actions necessary to correct the effect of the release on the environment. Any person required to take action under this subsection shall have the following options:
(a) Demonstrating that no action is necessary to protect human health, safety, and the environment;
(b) Managing the release in a manner that controls and minimizes the harmful effects of the release and protects human health, safety, and the environment;
(c) Restoring the environment through the removal of the hazardous substance, pollutant, or contaminant; or
(d) Any combination of paragraphs (a) through (c) of this subsection.

KRS 224.01-400(21) provides as follows:

A person required to take action under subsection (18) of this section who does not restore the environment through removal of the hazardous substance, pollutant, or contaminant in accordance with subsection (18)(e) of this section shall demonstrate to the cabinet that the remedy is protective of human health, safety, and the environment, by considering the following factors:
(a) The characteristics of the substance, pollutant, or contaminant, including its toxicity, persistence, environmental fate and transport dynamics, bio-accumulation, biomagnifícation, and potential for synergistic interaction and with specific reference to the environment into which the substance, pollutant, or contaminant has been released;
(b) The hydrogeologic characteristics of the facility and the surrounding area;
(c) The proximity, quality, and current and future uses of surface water and groundwater;
(d) The potential effects of residual contamination of potentially impacted surface water and groundwater;
(e) The chronic and acute health effects and environmental consequences to terrestrial and aquatic life of exposure to the hazardous substance, pollutant, or contaminant through direct and indirect pathways;
(f) An exposure assessment; and
(g) All other available information.

Rockwell contends that the trial court erred in rejecting its site-specific risk assessments. Within this argument, Rockwell asserts that the trial court improperly accepted the Cabinet’s exposure assumptions which Rockwell contends were unrealistic. KRS 224.01^100(21)(f) requires that consideration be given to an “exposure assessment” in determining whether the remedial action proposed to be taken is protective of human health, safety, and the environment. The trial court was faced with conflicting exposure assessments from the parties’ expert witnesses. Since the trial court determines the credibility and weight to be given to evidence, it is the function of the trial judge to choose which evidence to accept. Singer v. Singer, Ky., 440 S.W.2d 783, 785 (1969). We will not interfere with that choice, unless it is clearly erroneous. Id. Since it is our conclusion that the Cabinet’s exposure assumptions were not so unrealistic as to preclude the trial court from accepting them, we hold that the trial court did not clearly err in this regard.

Rockwell also contends that the trial court erred by accepting the Cabinet’s cancer risk assessment level of 10 A The risk level proposed by the Cabinet and accepted by the trial court was within the range employed by the Environmental Protection Agency (EPA) and was within the 10 to 10 range proposed by Rockwell. We determine no error by the trial court in accepting this risk standard.

Rockwell next argues that the trial court improperly based the sediment cleanup standard on flawed data concerning the fish in Town Branch and Mud River. The Cabinet presented evidence to support this cleanup level, and the trial court was within its discretion and did not act clearly erroneously in accepting the Cabinet’s proof in this regard. See Singer, supra.

Rockwell next contends that the trial court erroneously failed to consider the impact and feasibility of the cleanup that was ordered. While the trial court did not mention the impact and feasibility of the cleanup in its judgment, there was evidence at trial to support Rockwell’s argument in this regard. The mere absence of any reference to the impact and feasibility of the cleanup that was ordered does not mean that it was not considered by the trial court. Had Rockwell considered a finding on this issue to be essential to the judgment, it should have brought the absence of such a finding to the attention of the trial court by a written request for a finding or by a motion pursuant to Kentucky Rule of Civil Procedure (CR) 52.02. Otherwise, the judgment may not be reversed for this reason. CR 52.04.

In addition, the trial court was not bound to accept Rockwell’s argument that the cost and other factors relating to the impact and feasibility of the cleanup would outweigh the advantages of a cleaner environment. The trial court was within its right to “balance [the] inconvenience” to Rockwell with the benefit to the environment. See Bartman v. Shobe, Ky., 353 S.W.2d 550, 554 (1962).

Rockwell’s third argument is that the trial court misapplied the Kentucky water quality laws, and Rockwell contends that the trial court erred in its use of those laws to set cleanup standards. It asserts that the standards set in Kentucky’s water quality laws may not be imposed directly as cleanup standards. Rockwell cites no authority for this argument, and we see no error in the trial court’s effecting a correlation between the standards set in the water quality laws and the standard for the cleanup.

Rockwell also contends that the trial court erred by including the issue of storm water discharges in its ruling. Rockwell argues that the trial judge had stated during the trial that he was not going to make any adjudication on that issue because BTR had filed an administrative appeal concerning the issue. The administrative appeal was filed after Rockwell’s complaint in this case. As there was evidence concerning the issue before the trial court, and as we are cited to no authority which would prohibit the trial court from ruling on this matter, we conclude that the trial court did not commit error in addressing this matter in its judgment.

The judgment of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . Rockwell asserts that this cancer risk assessment level was rejected by the General Assembly after the Cabinet’s attempt to have the General Assembly adopt a regulation which would have required all cleanups conducted under the statute to reduce the excess cancer risk below this level. The fact that the General Assembly chose not to adopt a regulation providing for such a level in all cleanups under the statute does not mean that the trial court could not set such a level in this case.
      Also, the amicus curiae briefs assert that the trial court has now approved an excess cancer risk standard for all cleanups in Kentucky. We do not perceive that the trial court's judgment did this, nor do we believe that the trial court had the authority to set a standard for all cleanups. The excess cancer risk standard set by the trial court in this case is applicable only to the Rockwell Russellville cleanup.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    Ralph McLAIN, Appellant, v. DANA CORPORATION; Bay Design, Inc.; The Paslin Company; and I.S.I. Industries, Appellees.
    No. 1998-CA-002831-MR.
    Court of Appeals of Kentucky.
    Oct. 15, 1999.
    Discretionary Review Denied by Supreme Court May 10, 2000.

      John W. Bland, Jr., Elizabethtown, for Appellant.

      Steven D. Goodrum, Lexington, for Ap-pellee, Dana Corporation.
    David J. Kellerman, Louisville, for Ap-pellee, The Paslin Company.
    O. Lee Cave, III, Debbie D. Sandler, Louisville, for Appellee, Bay Design, Inc.
    Before: JOHNSON, McANULTY, and MILLER, Judges.
   OPINION

JOHNSON, Judge:

Ralph McLain’s tort claim against his employer, Dana Corporation, and his products liability claims against Bay Design, Inc. and The Paslin Company were summarily dismissed by the Hardin Circuit Court. Since all of McLain’s arguments concerning the constitutionality of the workers’ compensation laws have either already been rejected by the Supreme Court of Kentucky or are not ripe for our review, and since his products liability claims were not timely filed, we affirm.

On January 3, 1997, McLain was injured at work when he was hit in the head by a piece of machinery that allegedly malfunctioned. McLain, who was employed by the appellee, Dana Corporation, applied for and obtained workers’ compensation benefits. McLain also filed a lawsuit in the Hardin Circuit Court in which he named as defendants, Dana Corporation and the appellee, I.S.I. Industries, the alleged manufacturer of the defective equipment.

With respect to his employer, McLain alleged that Dana Corporation “negligently operated, maintained and controlled [its] business by failing to provide [him] with a safe place to work and with safe equipment to operate.” The remainder of his complaint alleged that Chapter 342 of the Kentucky Revised Statutes, “as rewritten in 1996,” violated several sections of the Kentucky Constitution; that the “ ‘new’ workers’ compensation law [KRS 342] no longer provides adequate, sufficient, equitable and/or fair benefits” to workers so as to be a “valid alternative to [his] rights [ ] under traditional tort law and under the Constitution of Kentucky”; and, that the manner in which benefits are currently calculated is “arbitrary, unjust, against public policy, vague, inconsistent with the traditional policy objectives of compensating injured workers, unconstitutional, illegal, immoral and a total sham.”

In its answer, Dana Corporation claimed that McLain had failed to exhaust his administrative remedies; that McLain’s claim against it was barred by the exclusive remedy provisions of the workers’ compensation scheme; and that McLain’s injuries were caused by his “own negligence” or by “the breach of warranty or other contract or duty of defendant ISI [sic] Industries or some other manufacturer of the product in question.... ” Dana Corporation also filed a cross-claim against I.S.I. to recover payments made to, or on behalf of, McLain within the context of McLain’s workers’ compensation claim.

With respect to I.S.I., McLain alleged in his complaint that the manufacturer “negligently designed, manufactured, assembled, tested, inspected, warranted, instructed ultimate users, warned of dangers, repaired and provided a piece of equipment located at the Dana Corporation.” McLain further alleged that I.S.I. breached its warranties “both express and implied” and, that I.S.I. was strictly liable to him for selling a machine which “was in a defective condition and which was dangerous and defective” and “unreasonably dangerous to the user.”

I.S.I. denied these allegations and claimed that McLain’s own negligence was the “cause of his alleged injuries” and that the machine “was not in its original, unaltered and unmodified condition at the time of the subject accident.”

On April 20, 1998, Dana Corporation moved for a partial summary judgment and sought a dismissal of that portion of McLain’s tort action that alleged it was negligent in failing to provide him with a safe place to work. It argued that regardless of the constitutionality of the 1996 amendments to KRS Chapter 842, McLain’s tort claim was barred by the exclusivity provisions contained in KRS 342.690(1), a statute not among those changed by the Legislature in 1996. The trial court agreed with the employer and summarily dismissed McLain’s negligence claim against Dana Corporation on October 20,1998.

Meanwhile, McLain learned through the discovery process that I.S.I. had not manufactured the machine that caused his head injury, but merely had made one of its components. On May 18, 1998, McLain filed an amended complaint to add as defendants the entities which designed, manufactured, and installed the machine at Dana Corporation, the appellees, Bay Design and Paslin. McLain made the same allegations against these defendants that he had previously asserted solely against I.S.I. Both new defendants moved for summary judgment on the grounds that McLain’s claims of negligence and strict liability were barred by the one-year statute of limitations, KRS 413.140(l)(a), and that his breach of warranty claim was barred by lack of privity.

McLain responded to these motions by arguing that he filed his amended complaint as soon as he discovered the actual designers and manufacturers of the alleged defective machine. He contended that as to his negligence and strict liability claims he should be given the benefit of the “discovery rule” as defined in Louisville Trust Co. v. Johns-Manville Products Corp., Ky., 580 S.W.2d 497 (1979). He contended that his breach of warranty claim was timely filed because of the four-year statute of limitations provided in KRS 355.2-725. He claimed he should come within the coverage of the language of KRS 355.2-318 for breach of warranty “to the buyer of the defective product and to any natural person who is in the family or household of the buyer or who is a guest in his home.” McLain argued that to give the statute the interpretation urged by Bay Design and Paslin would result in the statute becoming “meaningless” when the injured party is an employee of a corporation/buyer of the defective product.

On October 20, 1998, the trial court granted Bay Design’s and Paslin’s motions for summary judgment. The order dismissing McLain’s complaint against these defendants, as well as the summary judgment in favor of Dana Corporation, included finality language which allowed McLain to proceed with this appeal.

I. CONSTITUTIONALITY OF THE WORKERS’ COMPENSATION ACT

McLain advances several arguments in support of his contention that the Workers’ Compensation Act is unconstitutional. He argues that the Act impairs an employee’s jural rights to recover against his employer for his injury or death and claims support from the recent Supreme Court ease of Williams v. Wilson, Ky., 972 S.W.2d 260 (1998). However, as the Dana Corporation correctly asserts, McLain’s constitutional attack on the Workers’ Compensation Act is not new. Certainly, if the Act were mandatory, the jural rights doctrine would be implicated, as was reflected in our highest Court’s review of the original act passed in 1914. We recognize that “[t]he right of every individual in society to access a system of justice to redress wrongs is basic and fundamental to our common law heritage, protected by Sections 14, 54, and 241 of our Kentucky Constitution.” However, when the Legislature re-enacted the Worker’s Compensation Act in 1916, it provided that coverage under the Act is not compulsory, but rather allows a worker to reject participation in the no-fault scheme and to maintain his right to seek common law remedies. Since this 1916 enactment, our courts have consistently held the Workers’ Compensation Act to be constitutional. This Court is, of course, bound by this precedent. Furthermore, there is nothing in the Supreme Court’s discussion of jural rights in Williams v. Wilson, supra, a case which held that KRS 411.184(1) offended the constitutional right to seek punitive damages, that implicates the viability of the Workers’ Compensation Act, or that would justify this Court’s failure to follow the settled precedent concerning the Act’s constitutionality.

McLain also specifically challenges the constitutionality of KRS 342.395(1), the “opt-out” provision of the Act, which provides, in part, as follows:

Where an employer is subject to this chapter, then every employee of that employer, as a part of his contract of hiring ... shall be deemed to have accepted all the provisions of this chapter and shall be bound thereby unless he shall have filed, prior to the injury or incurrence of occupational disease, written notice to the contrary with the employer; and the acceptance shall include all of the provisions of this chapter with respect to traumatic personal injury, silicosis, and any other occupational disease. However, before an employee’s written notice of rejection shall be considered effective, the employer shall file the employee’s notice of rejection with the Department of Workers’ Claims.

In his brief, McLain claims that he did not know that he could reject coverage under the Act. He argues that since the statute provides for a worker’s implied consent to the statutory scheme,, the election was not, in fact, voluntary.

Dana Corporation claims that by accepting temporary total disability income benefits and medical benefits totaling nearly $60,000, McLain has “waived any constitutional challenge” in this regard. It also points to cases upholding the implied consent aspects of the Act, particularly Wells v. Jefferson County, supra, n. 6, in which Kentucky’s highest Court unanimously endorsed the Legislature’s 1952 amendment to provide for implied consent to inclusion in the scheme:

[T]he opportunity of the employe to reject the Act by affirmative action on his part assures him adequate freedom of choice as to whether he will accept or reject the Act.
In those states in which compulsory workmen’s compensation laws are not permissible under the state constitution, it has been held almost uniformly that a requirement that the employe act affirmatively in order to reject the law does not make the law compulsory in nature.

Again, it is clear that this specific provision has already been held to be constitutional. We also note that the principle of implied consent is used in another no-fault scheme, specifically the Motor Vehicle Reparations Act, KRS 304.39 et seq., legislation which survived a similar constitutional challenge:

At the outset, the implied-consent theory must be recognized for what it is. As in the instance of contracts implied in law vis-a-vis contracts implied in fact, it necessarily stands on fiction rather than fact. But it is not thereby degraded or denigrated, because the venerated fictions of the law have been deliberately created to achieve what is right. The law simply declares that as done which ought to have been done. If implied-consent laws (or, for that matter, any other laws) had to depend on actual notice they could not exist. It seems to us, therefore, that the proper test of such a law is whether under all the circumstances, considering the public purpose sought to be accomplished and the nature and extent of detriment to the individual, it is reasonable for it to presume a consent where none exists in fact.

With these authorities as precedent, only our Supreme Court has the power to declare the implied consent provision of the Workers’ Compensation Act unconstitutional.

McLain’s arguments that the 1996 amendments to the Act are unconstitutional must fail as well, since they are not ripe for review. It is McLain’s assertion that he no longer has a “remedy” under the Act as amended in 1996, as any amount he will recover in that forum will be “incomplete, inequitable, unjust, unfair, [which] in no way, shape, form or fashion compensates or redresses his loss to his person.” He further insists that the 1996 version of the Act “is a sham and a fraud,” and that the amendments have emasculated the scheme designed to compensate a worker for his lost earning capacity and replaced it with one that is “ ‘arbitrary’ ” and which “has absolutely no basis or connection with reality.” He notes that the AMA guidelines for determining impairment specifically state that they “should not be used to make direct financial awards.” Essentially, McLain’s argument is that KRS Chapter 342 “is void and illegal because it no longer provides a fair, equitable, complete, whole alternative remedy to injured workers/servants.” However, before McLain would be entitled to appellate review of these issues, he must have first exhausted his remedies through the administrative process. Furthermore, the issue of the constitutionality of the 1996 amendments is not germane to the issue of whether the trial court erred in dismissing McLain’s tort claim against his employer. Even if a court were to determine that all of the 1996 amendments were unconstitutional, we would still be required to affirm the summary judgment since McLain’s tort action would then be governed by the statutes in effect at the time of the amendment. Since the exclusive remedy provision of the Act, KRS 342.690(1), was in effect prior to the 1996 amendments, a judicial voidance of the 1996 amendments would only affect the benefits to which McLain is entitled under the Act, which issue is not before us; and not his ability to sue his employer in tort, which issue is before us.

Thus, since there is no genuine issue as to any material fact bearing on the application of the exclusivity statute, we hold that the trial court did not err as a matter of law in dismissing McLain’s common law tort action against Dana Corporation.

II. PROD UCTS LIABILITY CLAIMS

In his appeal from the dismissal of his claims against Bay Design and Paslin, McLain acknowledges that his complaint was filed after the applicable one-year statute of limitations. However, he claims that “he filed his amended complaint as soon as he ‘discovered’” the appropriate defendants and that the “discovery rule” should be extended to situations where the plaintiff has not yet discovered the identity of the alleged tortfeasor. We conclude that McLain’s argument lacks merit and hold that the discovery rule does not apply to this case.

Under Kentucky law, the discovery rule provides that a cause of action accrues when the injury is, or should have been, discovered. However, the discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is fraudulent concealment or a misrepresentation by the defendant of his role in causing the plaintiff’s injuries. A person who has knowledge of an injury is put on “notice to investigate” and discover, within the statutory time constraints, the identity of the tortfeasor. Application of the discovery rule under circumstances as in the case sub judice would defeat the very purpose of the limitations. As one court observed, “logic dictates that such an exception is capable of swallowing the rule.”

McLain’s argument that we should construe KRS 355.2-318 so as to include him as a part of Dana Corporation’s “family,” and thereby extend to him the privity necessary to pursue a breach of warranty action against the manufacturers has already been rejected by this Court in Halderman v. Sanderson Forklifts Co., Ky. App., 818 S.W.2d 270, 273 (1991). In construing a statute, the courts are “guided by the two paramount rules of statutory construction, that is, that words must be afforded their plain, commonly accepted meaning and that statutes must be construed in such a way as to carry out the intent of the legislature^]” The statute, KRS 355.2-318, extends the ability to assert a breach of warranty claim “to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.” It continues to be obvious to this Court that the Legislature did not intend to include employees of the buyer within the parameters of the statute. As our Supreme Court noted in Williams v. Fulmer, Ky., 695 S.W.2d 411, 414 (1985), the Legislature was aware, when enacting our version of the Uniform Commercial Code, that other alternatives to the statute existed which extended the concept of privity to allow a broader range of injured persons to assert warranty theories of recovery. As Williams v. Fulmer, supra,- makes clear, “commercial sales law is statutory,” and our Legislature chose to limit actions for breach of warranty as provided in KRS 355.2-318. It is not the function of the courts to extend the concept of privity to include those whom the Legislature has not seen fit to protect.

Accordingly, the summary judgment of the Hardin Circuit Court is affirmed.

ALL CONCUR.

      . There is no question that Dana Corporation’s insurer paid McLain temporary total disability income benefits as well as his medical expenses. The record does not reveal the amount, if any, of permanent disability income benefits awarded.

      . The exclusivity statute provides, in part, as follows:
      If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.

      . Since it was undisputed that each defendant did not have any knowledge of McLain’s lawsuit prior to its receipt of a summons, the relation back rule did not apply. Kentucky Rules of Civil Procedure (CR) 15.03

      . See Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562, 170 S.W. 1166 (1914).

      . O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 578 (1995).

      . See Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916); Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953); M.J. Daly Co. v. Varney, Ky., 695 S.W.2d 400 (1985), overruled on other grounds by U.S. Fidelity & Guaranty Co. v. Technical Minerals, Inc., Ky., 934 S.W.2d 266, 269 (1996); and Edwards v. Louisville Ladder, Ky.App., 957 S.W.2d 290 (1997).

      . Rules of the Supreme Court 1.030(8)(a).

      . Id., 255 S.W.2d at 463.

      . See also Tri-Gem Coal Co. v. Whitaker, Ky. App., 661 S.W.2d 785 (1983).

      . Fann v. McGuffey, Ky., 534 S.W.2d 770, 776 (1975).

      . Specifically, McLain earned in excess of $36,000 per year, and claims to be totally disabled as a result of his injury at Dana Corporation. Based on a life expectancy of 33.7 years, McLain claims a loss of over $1.2 million in lost wages alone. McLain does not state what he could recover in workers’ compensation benefits. However, Dana Corporation claims that based on the 50% functional impairment rating that McLain received from one physician, he could receive a permanent disability award of $189,987.75, a sum considerably less than the damages McLain seeks to recover in his common law tort action.

      . See Tharp v. Louisville & Nashville Railroad Co., 307 Ky. 322, 210 S.W.2d 954 (1948).

      . Vestal Lumber Co. v. Clark, Ky., 268 S.W.2d 954, 956 (1954).

      . Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

      . Michels v. Sklavos, Ky., 869 S.W.2d 728, 732 (1994).

      . Resthaven Memorial Cemetery, Inc. v. Volk, 286 Ky. 291, 150 S.W.2d 908, 912 (1941).

      . McCollum v. Sisters of Charity of Nazareth Health Corp., Ky., 799 S.W.2d 15, 19 (1990).

      . See Simmons v. South Central Skyworker’s, Inc., 936 F.2d 268, 269 (6 ⅛ Cir.1991).

      . Chambers v. Commonwealth, Ky.App., 723 S.W.2d 868, 870 (1986).

      . Id. at 414.


author: TACKETT, Judge:

text:
    HALLS HARDWOOD FLOOR COMPANY, Appellant, v. Charles STAPLETON; Honorable James L. Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 1999-CA-001333-WC.
    Court of Appeals of Kentucky.
    April 7, 2000.

      Douglas A. U’Sellis, Louisville, for Appellant.
    A. Page Beetem, Ft. Mitchell, for Appel-lee.
    BEFORE: EMBERTON, MILLER and TACKETT, Judges.
   OPINION

TACKETT, Judge:

Halls Hardwood Floor Company (Halls) brings this petition for review from an opinion of the Workers’ Compensation Board (the Board) affirming an opinion and award of an administrative law judge (ALJ) awarding Charles Stapleton (Staple-ton) benefits based upon a 7% occupational disability. For the reasons set forth herein, we affirm.

Stapleton suffered a work-related knee injury while employed by Halls in August 1997, and did not return to work until January 1998. After he returned to work, Stapleton was still experiencing pain in his knee and was unable to perform all of his previous duties (ie., installing, sanding, coating and refinishing hardwood floors). In March 1998, Stapleton advised Halls’ owner that he was unable to perform his duties without assistance and Stapleton left Halls’ employ. Stapleton filed a claim for workers’ compensation benefits based upon his knee injury, and an arbitrator issued a benefit determination finding Sta-pleton to have a 7% occupational disability. Halls filed a request for a de novo hearing before an ALJ. After additional proof was taken, the ALJ issued an opinion and award finding that Stapleton suffered from a 7% occupational disability, enhanced to 10.5% by virtue of Kentucky Revised Statute (KRS) 342.730(l)(c)l and rejecting Halls’ request for credit for overpayment of temporary total disability (TTD) payments. Halls’ appeal to the Board was unsuccessful, after which Halls filed this petition for review.

Halls’ first argument is that the ALJ’s finding that Stapleton suffers from a 7% occupational disability is not supported by objective medical evidence. A claimant bears the burden of proof as to each element of his claim. Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999). If the claimant is successful before the ALJ, the “issue on appeal is whether substantial evidence supported the ALJ’s conclusion.” Id, Substantial evidence is “some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Id. at 481-82.

The medical evidence in this case was conflicting. The ALJ chose to rely on the diagnosis and opinion of Dr. Mark Siegel and to reject the opinions of the other physicians. Such action was entirely permissible as it is clear that the ALJ as the finder of fact has the “sole discretion to determine the quality, character, and substance of [the] evidence[,]” and “may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it came from the same witness or the same adversary party’s total proof[.]” Id. at 481. See also Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).

In this case, Dr. Siegel examined Stapleton, took x-rays of Stapleton, and interpreted those x-rays to arrive at his diagnosis that Stapleton suffered from hypermobility of the patella and patellofemoral dislocation. The ALJ had the right to rely on Dr. Siegel’s diagnosis, whether or not his diagnosis agreed with that of the other physicians. Halls’ argument that Dr. Siegel’s diagnosis is improper due to his combining two sections of the American Medical Association’s (AMA) Guidelines in assessing a percentage of impairment for Stapleton is without merit. As noted by the Board on page ten of its opinion, “[c]ontrary to Halls[’] assertions, there are places in the AMA Guidelines which permit the physician to combine percentages, as Dr. Siegel did in this case.” The conclusion reached by the ALJ and affirmed by the Board is not the only one possible, but it is supported by substantial evidence and must, therefore, be affirmed. Daniel v. Armco Steel Company, L.P., Ky. App., 913 S.W.2d 797, 798 (1995).

Halls’ next argument is that it is entitled to a credit for overpayment of TTD. The ALJ and Board found that Stapleton was entitled to TTD from the date of his injury until December 26,1997, when Dr. Richard Hoblitzell stated that Stapleton could return to work with no restrictions. Halls contends that Stapleton was not entitled to TTD after August 30,1997, when Dr. Hob-litzell opined that Stapleton could return to work under certain restrictions.

TTD is payable:

until the medical evidence establishes the recovery process, including any treatment reasonably rendered in an effort to improve the claimant’s condition, is over, or the underlying condition has stabilized such that the claimant is capable of returning to his job, or some other employment, of which he is capable, which is available in the local labor market.

W.L. Harper Construction Company, Inc. v. Baker, Ky.App., 858 S.W.2d 202, 205 (1993). Entitlement to TTD is a question of fact. Id. Temporary total disability is statutorily defined as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.” KRS 342.0011(ll)(a).

Dr. Hoblitzell’s August 30 report indicates that Stapleton could return to “modified duty” work at his regular hours, provided that: he did not lift more than ten pounds, did not kneel, did not bend or squat, and did not climb stairs. However, the president of Halls, Bret Hall, testified that he did not have any light duty jobs available for Stapleton. Furthermore, it is clear that one would have to kneel, squat, and bend over in order to perform the type of work in which Stapleton had engaged. As the Board noted, Stapleton’s adult work history was in manual labor jobs, meaning that it would have been very difficult for him to return to any type of gainful employment on August 80, 1997. Finally, the ALJ had the right to reject Dr. Hoblitzell’s opinion as to when Staple-ton was able to return to work in the same manner he rejected Dr. Hoblitzell’s ultimate diagnosis. In short, the ALJ’s decision is supported by substantial evidence and must be affirmed. Daniel, supra at 800.

Finally, Halls argues that the ALJ erroneously computed the amount of weekly benefits to which Stapleton is entitled. Halls contends that the ALJ improperly used Stapleton’s temporary total disability rate as a basis for his permanent partial disability award. Stapleton does not argue that the ALJ properly computed his weekly benefit amount. Rather, Stapleton agrees with the Board that this issue was not properly preserved for appellate review under the principles set forth in Eaton Axle Corporation v. Natty, Ky., 688 S.W.2d 334 (1985).

Eaton Axle held that a party was required to file a petition for reconsideration with the finder of fact before seeking appellate relief. Id. at 338. In 1994, however, the General Assembly effectively abrogated Eaton Axle when it amended KRS 342.281 to provide that “[t]he failure to file a petition for reconsideration shall not preclude an appeal on any issue.” However, this language was deleted from the statute in 1996. The Board determined that this deletion revived the holding of Eaton Axle, meaning that Halls had waived this issue by not including it in its petition for reconsideration.

The issue of the effect of the 1996 version of KRS 342.281 is apparently one of first impression. Statutory interpretation is a matter of law reserved for the courts and this Court is not bound by the Board’s interpretation of the statute. Commonwealth, Cabinet For Human Resources, Interim Office of Health Planning and Certification v. Jewish Hospital Healthcare Services, Inc., Ky.App., 932 S.W.2d 388, 390 (1996). The “cardinal rule” of statutory instruction is that the reviewing court must ascertain and give effect to the legislature’s intent. Id. A court is not, however, to “speculate as to what the legislature intended.” Fiscal Court Commissioners of Jefferson County v. Jefferson County Judge/Executive, Ky. App., 614 S.W.2d 954, 957 (1981).

It is clear the General Assembly intended to reinstate the requirement in Eaton Axle that a petition for reconsideration be filed in order to preserve an issue for appellate review. Certainly, the General Assembly intended for its 1996 amendment to the statute to have some effect, Grieb v. National Bond & Investment Co., 264 Ky. 289, 94 S.W.2d 612, 617 (1936), and further the General Assembly is aware of previously enacted statutes and their common law interpretations. Cook v. Ward, Ky., 381 S.W.2d 168, 170 (1964). We cannot discern any logical meaning underpinning the 1996 amendments to KRS 342.281 other than a conscious decision by the General Assembly to return to the requirement that a petition for reconsideration must be filed before an issue is preserved for appellate review. Accordingly, the Board correctly held that the principles in Eaton Axle have been legislatively revived.

We do not believe that the Board “overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.” Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, The Board’s decision is af-687-8 (1992). firmed.

ALL CONCUR.


author: ANN K. COVINGTON, Judge.

text:
    Carolyn D. PARR, Respondent, v. James K. PARR and Madeleine Carr, Appellants.
    No. SC 82134.
    Supreme Court of Missouri, En Banc.
    May 9, 2000.
    Douglas R. Horn, Independence, Matthew K. Partin, William C. Partin, Kansas City, for appellants.
    Robert A. Henderson, Richard M. Paul, III, Ryan J. Rohlfsen, Kansas City, for respondent.
   ANN K. COVINGTON, Judge.

Madeleine Carr (mother) and James Parr (father) appeal the trial court’s judgment apportioning settlement proceeds from a wrongful death claim subsequent to the death of their son, James G. Parr, Jr. (decedent). Mother and father assert that the trial court erred in apportioning the proceeds of the settlement because the award to decedent’s wife, Carolyn Parr (wife), was grossly excessive and unsupported by the evidence, while the awards to mother and father were grossly inadequate and unsupported by the evidence and because, in making its apportionment determination, the trial court improperly considered the amount of work performed by wife’s counsel in negotiating the settlement. After opinion by the Missouri Court of Appeals, Western District, this Court granted transfer. The judgment of the trial court is affirmed, as modified.

On March 22, 1997, decedent, fifty-five years of age, was riding his motorcycle on Interstate 70. When he began to experience mechanical problems, he pulled onto the shoulder of the road. Another motorcyclist, Ann Bruemmer, who was traveling along Interstate 70, noticed decedent. She slowed her motorcycle and turned onto the shoulder to offer assistance. As Ms. Bruemmer slowed down in the right lane, most of the traffic behind her also slowed. Ronald Blush, who was driving a tractor-trailer weighing in excess of 80,000 pounds, was unable to slow down. Blush’s vehicle was traveling at approximately eighty miles per hour. As he approached the slow-moving traffic in front of him, Mr. Blush was unable to control the truck. To avoid colliding with the automobiles in front of him, Mr. Blush veered onto the shoulder. His truck struck and killed decedent.

Decedent was survived by his mother and father, decedent’s wife and their two children, Steven Parr and Shannon Chamberlain, and four grandchildren. All of the survivors except the grandchildren are within the class of individuals who are authorized to recover in a wrongful death action under section 537.080, RSMo 1994. On April 15, 1997, wife instituted a wrongful death action against Ronald Blush, his employer, Professional Transportation Services, Inc. (PTSI), and the owner of the truck Mr. Blush was driving when the accident occurred, Trans-Lease, Inc.

The defendants filed a third-party petition against Ms. Bruemmer in which they alleged Ms. Bruemmer’s negligence contributed to decedent’s death. Mother and father did not intervene in the wrongful death lawsuit, at wife’s request. After negotiations, wife settled the wrongful death suit for $965,000.00, $15,000.00 of which was specifically designated to pay a portion of the litigation expenses incurred by wife’s attorneys.

On February 19, 1998, wife and the defendants filed a joint motion for approval of the settlement and entry of judgment, as authorized by section 537.095. They asked the court to approve their proposed apportionment of the settlement proceeds. Their motion proposed that wife’s attorneys would receive the $15,000.00 amount for litigation expenses, an additional $8,973.88 for litigation expenses, and thirty-three and one-third percent of any recovery for attorneys’ fees. Wife and the defendants proposed that decedent’s children each receive $20,000.00 and that wife receive the balance of the proceeds after allocations to decedent’s children and parents. The parties acknowledged that mother and father had not submitted a request for a share of the settlement, but informed the court that mother and father were represented by counsel. In wife’s trial brief in support of the motion for approval of the settlement, she stated that she had no objection to the court’s allocating $10,000.00 each to mother and father.

On the same date, mother’s attorney entered an appearance and filed suggestions regarding the allocation of the wrongful death settlement. In her motion, mother argued that a parent’s loss of a child, even when the child is an adult, is substantial and that a parent is entitled to a fair percentage of a wrongful death settlement. She asserted that, because of her relationship with her son, she was entitled to a seventeen percent to twenty percent share of the settlement proceeds.

The trial court heard evidence on February 20, 1998, regarding the proposed settlement and apportionment. The court on that day took the testimony of decedent’s children. Both testified that they had good relationships with their father. They believed that wife should receive most, if not all, of the settlement proceeds. Because wife insisted that they request a portion of the proceeds for the purpose of establishing educational funds for decedent’s grandchildren, they requested $20,-000.00 per child. Following this testimony, the court continued the hearing to the following week.

During the subsequent hearing, wife testified about her perception of the relationship decedent shared with his parents. She stated that decedent and his father occasionally took motorcycle trips together and that they had been on a motorcycle excursion on the day before decedent’s death. She recalled decedent having helped his father to repair rental properties. She described the relationship between the two as good. Wife testified that decedent’s mother resided in Texas. She and the decedent had never visited mother there, but mother had visited wife and the decedent in Kansas City on “a couple of’ occasions. Wife testified that the decedent had telephone conversations with his mother and that they had a good relationship.

Wife testified about her long relationship with decedent. Wife and decedent had been married nearly thirty-four years. They shared a “wonderful marriage” and the last ten years had been “really quite exceptional.” During this time, decedent had worked from their home. Wife testified that since her husband’s death, she had trouble sleeping and eating, and she described her life without him as being “very lonely.”

Wife also offered evidence of her economic losses. Decedent’s funeral expenses, which wife had paid, were $7,957.24. Decedent had no life insurance. Decedent operated a business in which he restored jukeboxes, sold them, and had them available for rent, along with other 1950s-era memorabilia. Wife believed the business was growing. Wife testified to the range of prices that decedent charged to rent these items. At the time of decedent’s death, wife worked at Dillard’s, but she and decedent had discussed her leaving that job to become an employee of decedent’s business.

At the request of mother and father, the court directed wife to submit income tax returns so that the court could consider those in making its apportionment decision. Wife submitted income tax returns, in accordance with the court’s request, for the years 1994,1995, and 1996.

Wife offered into evidence a report prepared by economist L. Kenneth Hubbell, Ph.D. The economist calculated the present value of decedent’s lost business income from the jukebox restoration business, his related rental business, and the present value of his lost household services. The economist determined that the present value of lost business income was $1,211,987.00 and the present value of his lost household services was $88,478.00. After adjustment for self-consumption, the economist calculated that the total adjusted present value economic loss to wife resulting from decedent’s death was $1,112,607.00.

Mother and father objected to admission of the economist’s report. They contended that in making his calculations, Dr. Hub-bell did not rely upon tax returns, journals, or accounting records showing revenues and expenses of the business. Mother and father alleged that the report was based entirely upon the hearsay statements of wife and a customer of decedent’s who provided general information regarding the jukebox restoration business and estimates of the volume of decedent’s business. The customer had also assisted the economist in estimating the projected growth of decedent’s business. Mother and father contended that the report was not admissible because it was not supported by typical and customary data and the conclusions were unfounded and unsupported by evidence.

Wife responded that the defendants had filed a written stipulation in which they had agreed to the admission of the economist’s report “for all purposes,” and that the defendants agreed that wife’s economic loss as a result of the death of her husband was $1,112,607.00, as determined by the economist. Wife argued that the report was relied upon during the settlement negotiations to establish the amount of the settlement and that mother and father had waived their objections to the report by failing to intervene and object to the report during settlement negotiations. The court overruled mother and father’s objections to the report and admitted it, stating that the court would consider counsels’ arguments when determining the weight to be given to the report.

Wife further testified regarding her request for allocation of the settlement proceeds. Pursuant to her proposal, $20,-000.00 would be allocated to each of her children and $10,000.00 to mother and father, respectively, after which she would receive the net proceeds after paying her attorneys.

Mother also testified. She was seventy-six years old. She had resided since 1985 in Houston, Texas, with her youngest daughter. She was the last person, she said, to talk to decedent before his death. She spoke with him on the telephone to wish him a happy birthday immediately before he departed on his motorcycle. She said that she spoke with him on the phone at least once a month. On two occasions early in the marriage of wife and decedent, they and their children had lived with her in her home. Before her move to Houston, she had frequent contact with her son’s family. After her move, decedent frequently sent photographs and sent approximately $100.00 each Christmas. Mother testified that she was seeking a portion of the settlement proceeds for her grief, bereavement, and the loss of her son, but not for any other reason. When asked how much of the settlement proceeds she was seeking, mother testified that she did not know.

Father was hospitalized and not able to attend the hearing. His counsel offered a videotaped statement of father, as well as a letter from John O. Ward, Ph.D., an economic consultant who had reviewed Dr. Hubbell’s calculation of the present value of the economic loss resulting from decedent’s death. Dr. Ward criticized Dr. Hubbell’s calculations and stated his opinion that Dr. Hubbell’s methodology was not within the generally accepted practices of business valuation or economic loss calculation in the context of wrongful death. Wife objected to the admission of father’s videotaped statement and Dr. Ward’s letter on hearsay grounds. After discussion, the court stated that it would either admit all of the parties’ hearsay evidence, which included Dr. Hubbell’s report, Dr. Ward’s letter, and father’s videotaped statement, or it would admit none of the hearsay evidence. The court left it to the parties to decide. They agreed to waive their hearsay objections to all of the hearsay evidence, after which the court admitted Dr. Hubbell’s report, Dr. Ward’s letter, and father’s videotaped statement. The court stated that it would consider the hearsay nature of the evidence when considering its weight.

In the videotaped statement, father described his relationship with his son. He stated that losing his son was the most devastating experience of his life and that they shared a loving father-son relationship. They enjoyed the same activities and enjoyed discussing things with each other. Prior to decedent’s death, father and decedent saw each other frequently. Decedent helped father repair his rental properties, and they worked on motorcycles together. Father testified that he felt that he could count on decedent, and that he had designated decedent as the executor of his will. Father did not believe decedent’s business would have expanded beyond the level at which it was at the time of decedent’s death. Father did not request a specific portion of the settlement proceeds.

Following the hearing, the trial court issued its judgment in which it ordered the distribution of the settlement proceeds as follows:

1. $ 10,000.00 to Steven M. Parr
2. $ 10,000.00 to Shannon Chamberlain
3. $ 7,500.00 to Madeline Carr [Mother]
4. $ 10,000.00 to James K. Parr [Father]
5. $ 8,973.88 expenses
6. $313,672.23 attorney fees to Shugart Thomson [wife’s attorneys]
7. $ 2,500.00 attorney fees to Partin & Partin [mother’s attorneys]
8. $587,353.89 to Carolyn Pair [wife]

Mother and father appealed.

In their first point on appeal, mother and father assert that the award to wife was grossly excessive and that the award of $10,000.00 to each of them was grossly inadequate.

Section 537.095.3 provides that upon the settlement of a wrongful death claim, the trial court shall state the total settlement approved, and “then enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court.”

Section 537.090 provides, in pertinent part:

[T]he trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support[.]

The duty and responsibility of apportionment of losses in a wrongful death action lies within the sound discretion of the trial court. An appellate court will reverse the trial court’s judgment only if the ruling is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law, and will not disturb the trial court’s apportionment unless it is grossly excessive or inadequate. Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d 243, 246 (Mo.App.1996).

On the record this Court finds that the apportionment satisfies the requirements of section 537.095.3. The award to wife is not grossly excessive to compensate a widow for economic and non-economic damages she suffered as a consequence of the wrongful death of her husband of nearly thirty-four years. With respect to wife’s economic losses, she submitted tax returns showing decedent’s income. She testified in general terms with respect t'o her knowledge of the jukebox rental business, including the inventory, the volume of the decedent’s business, and the prices decedent charged to rent a jukebox and other memorabilia. Wife further testified that she paid the funeral expenses and that decedent had no life insurance. Wife also submitted Dr. Hubbell’s report as evidence of her economic losses.

Mother and father contend that Dr. Hubbell’s -report was unreliable evidence. Their contention is without merit. Although mother and father initially objected to the admission of Hubbell’s report, they later waived their hearsay objections and agreed to admission of the report, provided that the court also consider otherwise inadmissible evidence that they, themselves, offered in support of their case and provided that wife submit tax returns for the years 1994 through 1996. Furthermore, the trial court specifically indicated its ability to refrain from considering information admitted into evidence that it considered to be irrelevant or immaterial, and specifically stated, with respect to receiving Dr. Hubbell’s report, that the court would take into account objections made by counsel insofar as the weight that the court would afford the report.

The court’s apportionment to wife was based not only upon her economic losses. The court stated in its judgment that wife had “by far and away the major loss in this case both on an economic and non-economic basis.” Wife offered substantial evidence of her non-economic losses. She and decedent had been married for nearly thirty-four years and shared a close and loving relationship. Wife testified regarding the effect of the loss of her husband’s companionship and comfort upon her life. This evidence, along with the evidence of wife’s economic losses, is sufficient to support the trial court’s award of nearly all of the settlement proceeds to wife.

The record also supports the award of $10,000.00 to each of decedent’s parents. Mother and father assert that the parents of a decedent are entitled to a minimum of fifteen percent to twenty percent of a wrongful death settlement. Their assertions are without basis in Missouri law. There is no minimum amount that must be awarded to any party designated as a taker under section 537.095.4. The trial court is not bound by a set percentage or a minimum; rather, the trial court must exercise its discretion and, as instructed by the statute, distribute the proceeds “in proportion to the losses suffered by each as determined by the court.” See Wright v. Cameron Mut. Ins. Co., 908 S.W.2d 867, 868-69 (Mo.App.1995).

There is no dispute that decedent’s death had a serious effect on his mother and father. The trial court’s award, however, is intended to compensate the survivors for their loss. The trial court found that most of mother and father’s damages were in the nature of grief and bereavement, which are not compensable under section 537.090. Decedent provided few services to his parents. They presented no evidence of economic loss, nor did they offer any testimony or evidence as to how much of the settlement proceeds they were requesting. The trial court’s apportionment did not underestimate the seriousness of the loss suffered by mother and father; it simply recognized the magnitude of the loss suffered by decedent’s wife of nearly thirty-four years. A thorough review of the record reveals that the trial court’s judgment is supported by substantial evidence.

In their second point on appeal, mother and father assert that the trial court erroneously declared and applied the law in ruling that the amount of work performed by wife’s counsel and mother and father’s counsel in the underlying litigation and settlement negotiations was a proper factor for consideration in deciding how much of the settlement proceeds should be apportioned to wife and to mother and father. Mother and father allege that Missouri’s wrongful death act does not permit consideration of the amount of work performed by counsel in that the act requires a trial court to base its apportionment to the survivors solely on the factor of the losses suffered by each.

Mother and father’s point on appeal disregards the fact that the trial court told counsel for all of the parties that the court was not concerned with their fees. The judgment does not reflect otherwise. Mother and father’s point on appeal, as a consequence, rests upon a faulty premise. There is, therefore, no merit to mother and father’s claim that the trial court erroneously declared and applied the law.

Mother and father argue before this Court that to find that the trial court did not consider the factor of the amount of work done by counsel is tantamount to holding that wife’s attorneys were entitled to take their fee from the entire settlement, not just from wife’s share, thereby requiring all survivors to contribute to wife’s attorneys’ fees. Mother and father further contend, along this line, that such a finding is tantamount to holding that all survivors must contribute to wife’s attorneys’ fees and to reducing the amount of apportionment to mother and father.

Mother and father’s argument is without basis. First, finding that the trial court did not consider the work performed by counsel in making its apportionments does not compel a finding that wife’s attorneys were entitled to take their fee from the entire settlement or that all survivors must contribute to wife’s attorneys’ fees. There is no logical connection. Second, nothing in the record or the judgment suggests that the trial court deducted funds from each survivor’s share of the general settlement fund to pay the attorneys’ fees of wife. Mother and father’s point is without merit.

In reviewing the judgment of the trial court alongside the record, this Court observes, sua sponte, that, although the judgment of the trial court is supported by the evidence, the court failed to follow some of the provisions of section 537.095 in entering its judgment. As noted above, section 537.090 provides in part: “[T]he trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned-” Section 537.905.3 authorizes the trial court then to “enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court.”

After apportionment, subsection 4 instructs the court to order the claimant:

(1) To collect and receipt for the payment of the judgment;
(2) To deduct and pay the expenses of recovery and collection of the judgment and the attorneys’ fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances;
(3) To acknowledge satisfaction in whole or in part the judgment and costs;
(4) To distribute the net proceeds as ordered by the court; and
(5) To report and account therefor to the court. In its discretion the court may require the claimant to give bond for the collection and distribution.

As a threshold matter, the settlement agreement presented to the ‘ trial court sought the court’s approval to distribute $15,000.00 to wife’s attorneys for a portion of the litigation expenses incurred and $950,000.00 to all individuals within the class of beneficiaries as delineated by section 537.080. As a consequence, the court should have entered $965,000.00, rather than $950,000.00, as the total amount to be distributed.

Rule 84.14 authorizes a reviewing court to enter the judgment that the trial court should have entered. On the record in this case, this Court is able to amend the judgment entered by the trial court so as to conform to section 537.095 as follows:

“The only party with any significant pecuniary loss is decedent’s wife, Carolyn Parr. Each of decedent’s children and both of decedent’s parents have suffered substantial non-economic losses. Based on the evidence heard by the Court, a major portion of the damages suffered by decedent’s children and parents is in the nature of grief and bereavement, which is not compensable under Missouri law. Carolyn Parr has by far and away the major loss in this case both on an economic and non-economic basis.
Both of the children stated to the Court that they did not wish to receive any part of the settlement but, at the request of their mother would set aside, if granted to them, $10,000.00 for each of decedent’s grandchildren. The Court has no authority to apportion any part of this settlement to decedent’s grandchildren, although Plaintiff or decedent’s children can make such disposition if she or they choose.
Neither of decedent’s parents requested a sum certain be awarded to them.
The Court’s duty to apportion is undertaken in this case based on the premise that this is not the distribution of an actual determination of damages, but rather is a compromise settlement amount.”
The total settlement amount approved is $965,000.00. The Court apportions the sum of the total settlement, in proportion to each individual’s loss, as follows: $10,000.00 to Steven M. Parr; $10,000.00 to Shannon Chamberlain; $10,000.00 to Madeline Carr; $10,000.00 to James K. Parr, Sr.; $925,000.00 to Carolyn Parr;
Claimant, for the purpose of this proceeding, Carolyn Parr, shall collect and receive said settlement amount, and is authorized to receipt therefor, and to stipulate for dismissal of this cause;
From the settlement proceeds, claimant shall deduct and pay the expenses of recovery and collection of the judgment to Shughart, Thomson <& Kilroy, P.C., in the amount of $23,973.88 ($15,000.00 + $8,973.88);
From the settlement proceeds apportioned to Carolyn Parr, claimant shall deduct and pay to Shughart, Thomson & Kilroy, P.C., as contracted between Carolyn Parr and Shughart, Thomson & Kilroy, P.C.;
From the settlement proceeds apportioned to Madeline Carr, claimant shall deduct and pay to Partin & Partin, P.C., attorneys for Madeline Carr, as contracted between Madeline Carr and Par-tin & Partin, P. C.;
Claimant shall acknowledge satisfaction for the judgment and costs;
Claimant shall distribute the net proceeds as follows: $10,000.00 to Steven M. Parr; $10,000.00 to Shannon Chamberlain; $7,500.00 to Madeline Carr; $10,000.00 to James K. Parr, Sr., and the remainder to Carolyn D. Parr;
Upon making the payments ordered in this judgment, claimant shall file written receipts, accounting to the trial court claimant’s compliance with this judgment.

In conclusion, the trial court did not err in apportioning the proceeds of the settlement.

The judgment of the trial court is affirmed, as modified.

All concur.

      . All statutory references are to the RSMo 1994.

      . The settlement agreement provides that wife and her attorneys had originally agreed that wife would pay her attorneys thirty-five percent of "any recovery in this wrongful death claim ... after the deduction of costs incurred in maintaining the action.”

      . Mother and father’s invocation of Keene v. Wilson Refuse, Inc., 788 S.W.2d 324 (Mo.App. 1990), in support of their contention is without basis. In Keene, each plaintiff in the wrongful death action was represented by an attorney and had signed a contingency fee contract with his or her attorney. The trial court ordered each survivor to pay one-third of his or her apportioned share of the general settlement fund to the original plaintiffs' attorney, finding that the settlement fund was created through the efforts of the original plaintiffs' attorney. An intervening plaintiff claimed that the trial court erred in ordering him to pay one-third of his recovery to the original plaintiffs’ attorney and no compensation to his own attorney. The court of appeals reversed. It rested its holding on section 537.095.4(2), and held that the original plaintiffs’ attorney was entitled to be paid fees only from the original plaintiffs’ share of the general fund. Keene, 788 S.W.2d at 327. This case is entirely distinguishable from Keene, where the trial court erred in ordering each survivor to pay one-third of his or her apportioned share of the general settlement fund to the original plaintiff's attorney.

      . The paragraphs contained within the quotation marks are adopted verbatim from the trial court’s judgment.


author: JOSEPH M. ELLIS, Judge.

text:
    SILVERS, ASHER, SHER & McLAREN, M.D.s NEUROLOGY, P.C., Respondent, v. Sudhir BATCHU, M.D., Appellant.
    No. WD 57066.
    Missouri Court of Appeals, Western District.
    April 18, 2000.

      Stephen F. Gaunt, Rolla, for appellant.
    Susan Ford Robertson, Columbia, for respondents.
    Before JOSEPH M. ELLIS, Presiding Judge, HAROLD L. LOWENSTEIN, Judge and THOMAS H. NEWTON, Judge.
   JOSEPH M. ELLIS, Judge.

Sudhir Batchu, M.D., appeals from the judgment of the Circuit Court of Boone County in favor of Neurology, Inc. on its claim of breach of contract for violation of the restrictive covenants of Dr. Batchu’s employment contract.

On April 7, 1997, Sudhir Batchu, M.D., entered into a contract of employment with Neurology, Inc. (Neurology), a group medical practice consisting of four shareholder physicians, in Columbia, Missouri. During the six years prior to accepting employment with Neurology, Dr. Batchu had worked at several hospitals in the Columbia area in conjunction with his training. He had previously approached Neurology for employment on two separate occasions, but the group had no need for another physician at those times. In early 1997, two weeks prior to being contacted by Neurology, Batchu began a private practice in neurology in Columbia, treating approximately three to eight patients one day per week. At approximately the same time, Neurology approached Dr. Batchu and offered him a position with the practice. Batchu began working at Neurology on a full-time basis on July 1, 1997.

At the time Dr. Batchu entered into the employment agreement with Neurology, he also had an existing employment contract with Phelps County Regional Medical Center in Rolla, Missouri (Phelps). As a member of the hospital staff, Dr. Batchu ran the hospital’s neurology clinic. He advised Neurology that his contract with Phelps could be terminated with one month’s notice. However, Phelps refused to accept Dr. Batchu’s resignation, and renegotiated his contract to run through August 15, 1997. During July and August of 1997, Dr. Batchu continued to fulfill his obligations at Phelps until a replacement could be found, which ultimately occurred in September, 1997. Throughout that time, he remained under contract with Phelps as a full-time staff neurologist, where he was required to be available at least 82 hours per week. Phelps ultimately determined that Dr. Batchu had performed 40% of his employment obligations during July and August, 1997, and he was paid 40% of his full-time salary. Dr. Bat-chu contested the Phelps’ determination and contended that he provided more than 40% of his duties during that time. The neurology clinic at Phelps closed permanently in August, 1997.

Two weeks after signing the employment agreement with Neurology, and without the knowledge of any of its shareholders, Dr. Batchu became a shareholder in a corporation known as Mid-Missouri Health Systems (Mid-Missouri). He testified that he was in negotiations with Mid-Missouri as far back as November, 1996. On behalf of Mid-Missouri, Dr. Bat-chu set up a neurology clinic in Rolla which saw patients from the former Phelps neurology clinic. The Mid-Missouri clinic began operation on August 15, 1997. Dr. Batchu testified that his intent was to have a physician partner work at the clinic on a full-time basis, while he helped out when needed, such as on call, weekends and consults. However, no other physician was in place until mid-September, 1997. In the meantime, Dr. Batchu continued to work, on a contractual basis and through Mid-Missouri, for Phelps as their only neurologist, beginning August 15, 1997. He testified that between August 15, 1997 and September 26, 1997, he treated between one hundred fifty and two hundred patients at the Rolla clinic. Beginning sometime in September, 1997, another neurologist, Dr. Wazzan, joined Mid-Missouri in the Rolla clinic to assist Dr. Bat-chu.

When he began working at Neurology on July 1, 1997, Dr. Batchu informed the shareholders that temporary obligations in Rolla would require him to fill in on an “emergency basis only” until a replacement physician could be found. Upon learning that Dr. Batchu was continuing to conduct a full-time practice in Rolla, the shareholders informed him that he was in violation of his contract of employment, which stated, in pertinent part:

3. SERVICES: Employee agrees to devote substantially his entire time and attention to the practice of medicine for the corporation. The expenditure of reasonable amounts of time for teaching, personal or outside business, charitable and professional activities shall not be deemed a breach of this Agreement provided such activities do not materially interfere with the services required to be rendered to Employee hereunder. The Employee shall not, without the express prior written consent of Employer, directly or indirectly during the term of this Agreement or for a period of twenty-four (24) months thereafter as more particularly detailed in Paragraph 13 of this Agreement, render services of a professional nature to or for any person or firm for compensation, or engage in any activity competitive with and adverse to Employer’s business or practice, whether alone, as a partner or as an officer, director, employee or shareholder of any other corporation or as a trustee, fiduciary or other representative of any activity. The making of passive and personal investments and the conduct of private business affairs shall not be prohibited hereunder.

At the time the shareholders raised the issue of Dr. Batchu’s activities in Rolla, he informed them that he would no longer be involved in practice there. However, Dr. Batchu continued seeing patients in Rolla, and discharged some of Neurology, Inc.’s hospitalized patients with instructions to follow up with him at the Mid-Missouri Rolla clinic. Moreover, Dr. Batchu continued to receive frequent calls from the Rol-la clinic, and was repeatedly unavailable when he was supposed to be on call for Neurology. As a result, Dr. Batchu was terminated on September 26, 1997, and paid thirty days’ salary.

Approximately one month after being terminated by Neurology, Dr. Batchu opened an office for the practice of neurology in Columbia, approximately two to three miles from Neurology where he saw patients three days per week. On November 21, 1997, Neurology filed a petition in the Circuit Court of Boone County, seeking to permanently enjoin Dr. Batchu from practicing within a 75-mile radius of its office, pursuant to paragraph 13 of the employment contract, which states, inter alia:

13. NON-COMPETITION AGREEMENT: Employee agrees that, should his/her employment with Employer be terminated for any reason whatsoever during the twenty-four (24) month period beginning with the date of the termination of Employee’s employment, Employee will not, for himself or herself, on behalf of or for the benefit of any other person, firm, partnership or corporation perform any medical services or engage in the practice of neurology within seventy-five (75) miles of Employer’s office located at 500 Keene Street, Columbia, Missouri 65201 on Employee’s account, or otherwise solicit, service, refer to handle any medical business or engage in the practice of neurology for any patient of Employer who was a patient of Employer on the date of the termination of physician’s Employment with Employer.

Following a hearing on March 18, 1998, the trial court issued a preliminary injunction on April 8, 1998 (effective April 14, 1998) enjoining Dr. Batchu from practicing medicine within a 75-mile radius of Neurology, and requiring Neurology to post a $10,000 bond.

On April 20, 1998, while the preliminary injunction was in place, Dr. Batchu sent a letter to all physicians listed in the Columbia telephone book, informing them that he was no longer seeing patients at Neurology, but that he would see them in other locations. He testified that the purpose of this letter was to obtain physician referrals.

The case was tried to the court on December 4, 1998, February 2, 1999, and February 16, 1999. In its judgment of March 5, 1999, the trial court ruled in favor of Neurology and ordered Dr. Bat-chu to pay damages in the amount of $40,000. In addition, the trial court issued a permanent injunction in favor of Neurology, restraining Dr. Batchu from providing medical services in neurology within a 75-mile radius of Neurology until April 14, 2000, and from otherwise soliciting, servicing or referring any medical business or engaging in the practice of neurology for any patient who was a patient of Neurology at the time of Dr. Bat-chu’s termination. The court also ruled in favor of Neurology on Batchu’s counterclaims. Dr. Batchu appeals.

An action which seeks an injunction is an action in equity. L.B. v. State Committee of Psychologists, 912 S.W.2d 611, 616 (Mo.App. W.D.1995). The trial court’s judgment will be upheld unless it is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); L.B., 912 S.W.2d at 616. We will only disturb the trial court’s permanent injunction on the grounds that it is against the weight of the evidence with great caution, and the firm belief that it is wrong. L.B., 912 S.W.2d at 616.

In his first point on appeal, Dr. Batchu argues that the trial court erroneously enforced the restrictive covenant because Neurology failed to show that the clause was reasonable as a matter of law. He contends that the provision is over-broad, creates an unreasonable absolute prohibition against treating even those patients who seek treatment from him, and does not protect a legitimate protectible interest of Neurology since his exposure to its patients was limited. Neurology maintains that the restriction is no greater than fairly required for the protection of its interests.

In its Findings of Fact, the trial court noted that while employed by Neurology, Dr. Batchu saw over 500 patients, the majority of which he had not seen before. Furthermore, the trial court determined that, although Neurology was unable to determine how many of those patients were the clinic’s patients rather than Dr. Batchu’s patients from his limited prior practice, at least one of the referred patients was seen for the first time at Neurology. In fact, Dr. Batchu testified that 80-90% of the patients he treated while at Neurology were first-time patients. He testified that he did indeed discharge some of the clinic’s patients from area hospitals with instructions to follow up with him at the Rolla office rather than at Neurology because it was more convenient for the patient. Any revenues generated by Dr. Batchu’s patient contacts in the Rolla clinic went directly to Dr. Batchu and were not shared with Neurology.

The purpose of a non-compete agreement is to protect an employer from unfair competition by a former employee without imposing unreasonable restraint on the latter. Continental Research Corp. v. Scholz, 595 S.W.2d 396, 399 (Mo.App. E.D.1980). The rules applicable to enforcing such agreements emanate from that purpose. AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 719-20 (Mo.App. W.D. 1995). “Temporary and spatially limited restraints on a former employee’s ability to compete with his former employer articulated in a covenant not to compete are enforceable if reasonable under all attending circumstances and if enforcement serves the employer’s legitimate interests.” Id. at 719.

The Neurology/Batchu agreement was a conventional employment contract. Dr. Batchu was hired and paid to treat patients who sought Neurology’s medical services. The restrictive covenant was a limitation on Dr. Batchu’s practice of neurological medicine within a 75-mile radius of Neurology’s office, and prohibition from treating any individual who was a patient of Neurology at the time of his termination for a period of two years. The practice of neurology is a highly technical field, and the purpose of the Neurology/Batchu agreement was to protect Neurology’s interest in its established patient base. Evidence was adduced at the hearing that Dr. Batchu discharged established Neurology patients to his private practice in Rolla, from which Neurology received no revenue. After his termination, he set up a neurology clinic within two to three miles of Neurology, and solicited referrals from area physicians. The restrictive covenant was designed to prohibit precisely such practices.

The Eastern District considered the technical and competitive nature of a particular field, along with sensitive information gained by the employee while working for the employer, when determining that a two- or three-year restriction and a 125-to 350-mile geographic radius is not unreasonable. Mid-States Paint & Chemical Co. v. Herr, 746 S.W.2d 613, 617 (Mo.App. E.D.1988) (territorial restriction of 125 to 350 miles held not unreasonable in highly technical field). Such criteria apply to the practice of medicine. See also Champion Sports Center, Inc. v. Peters, 763 S.W.2d 367, 370 (Mo.App. E.D.1989) (restrictive covenant and injunction which prohibited seller of business from competing with his former business in three-county area for eight years were reasonable as to length and geographic area). In this case, evidence was adduced at the hearing that Neurology patients are drawn from a five-state area. In that context, a 75-mile radius restriction is not unreasonable. See id. at 617.

Dr. Batchu argues that, given his short tenure with the clinic, Neurology did not have a protectible interest in its patient base. We disagree. “An employer has a protectible and proprietary right in his ‘stock of customers’ and their good will.... ” Steamatic of Kansas City, Inc. v. Rhea, 763 S.W.2d 190, 192 (MoApp. W.D.1988). A “customer” is one who repeatedly has business dealings with a particular tradesman or business. Empire Gas Corp. v. Graham, 654 S.W.2d 329, 330-31 (Mo.App.1983). We may assume that if the proponent of the restrictive covenant has a trade following, that is, a group of customers who regularly patronize the business of the employer, there is a stock of customers and a protectible interest. See id.

An accepted method of limiting a post-employment restraint so as to be reasonable is to draft a covenant restricting the former employee from soliciting the former employer’s clients. Harold William Hinderer III, Covenants Not to Compete-Enforceability Under Missouri Law, 41 Mo. L.Rev. 37, 43 (1976). In Mills v. Murray, 472 S.W.2d 6 (Mo.App. W.D. 1971), this court found an employment contract which prohibited an employee from soliciting, contracting with, or serving those whom he had served during the last year of his employment for a period of three years to be reasonable. Id. at 11-12. Mills involved a business consulting firm and its employee consultants, serving medical and dental practitioners. Id. at 9. “[I]t was not unreasonable to anticipate that three years must pass before [the employee’s] former clients are no longer subject to the influence of their former relationship.” Id.

In the case at bar, the evidence adduced at the hearing revealed that Dr. Batchu had significant influence over the patients he saw while employed by Neurology. This is demonstrated by the fact that he was able to direct former Neurology patients to see him in his Rolla clinic for follow up, at which time they became exclusively patients of the Rolla clinic. Dr. Batchu cites no authority limiting the applicability of such an interest where the employee had access to sensitive information of a highly technical nature for a relatively short period of time. Therefore, Neurology’s restraint of Dr. Batchu from treating individuals who were patients of the clinic at the time of his termination, for a period of two years, was not unreasonable. It protected a legitimate interest and concern of Neurology in retaining its patient base. AEE-EMF, Inc., 906 S.W.2d at 719.

Dr. Batchu goes on to argue that restrictive covenants in general are contrary to public policy in Missouri, because they restrain commerce and limit an employee’s freedom to pursue a trade. However, he does not raise this issue in his Point Relied On. Argument on issues not raised in the Point Relied On is inappropriate and will not be considered on appeal. Rule 81.01(e); Lusher v. Gerald, Harris Constr. Inc., 993 S.W.2d 537, 544 (MoApp. W.D.1999). However, even if we were to consider this argument, we disagree with Dr. Batchu’s blanket contention that restrictive covenants violate Missouri’s public policy.

Missouri courts recognize that public policy approves employment contracts containing restrictive covenants because the employer has a proprietary right in its stock of customers and their good will, and if the covenant is otherwise reasonable, the court will protect the asset against appropriation by an employee. In Willman v. Beheler, 499 S.W.2d 770, 777 (Mo.1973), our Supreme Court, in upholding a restrictive covenant among doctors, rejected the notion that public policy should prevent the enforcement of restrictive covenants. The court noted that “[t]here is a counterbalancing public policy which recognizes the interest of the public in protecting the freedom of persons to contract and in enforcing contractual rights and obligations.”

Schott v. Beussink, 950 S.W.2d 621, 625 (Mo.App. E.D.1997). Point I is denied.

In his second point Dr. Batchu argues, in the alternative, that the permanent injunction should only run from the date of termination, not date of the preliminary injunction as determined by the trial court. He claims that by making the permanent injunction run two years from the date of the preliminary injunction, the period of restriction totaled two years and eight months, not two years as set forth in the contract.

In its Findings of Fact, the trial court noted that, within one month after his termination, Dr. Batchu had set up a clinic within two to three miles of Neurology and practiced medicine in violation of the covenant until the time of the preliminary injunction. Therefore, in order for Neurology to obtain the benefit of its contractual protection, it was necessary for the trial court to begin the term of restriction on the date of the preliminary injunction, or April 14, 1998. Enforcement of a non-compete clause from the date of a decree is not inequitable. Furniture Mfg. Corp. v. Joseph, 900 S.W.2d 642, 649 (Mo. App. W.D.1995). Point II is denied.

The judgment is affirmed.

All concur.

      . The full name of fre corporation is Silvers, Asher, Sher & McLaren, M.D.s Neurology, P.C.

      . Dr. Batchu signed an agreement with Mid-Missouri Health Systems on April 18, 1997 as a shareholder and full-time physician employee, to commence August 15, 1997.

      . Neurology claimed damages in the amount of $24,240 in recruitment expenses to hire a replacement neurologist, and $57,785.15 in attorney’s fees.

      . Dr. Asher testified that Neurology sees patients from Missouri, Kansas, Illinois, Iowa, and Arkansas.


author: ROBERT G. ULRICH, Judge.

text:
    Richard S. LINCOLN, Respondent, v. Debra Ann Cone LINCOLN, Appellant.
    No. WD 57297.
    Missouri Court of Appeals, Western District.
    April 25, 2000.

      Susan Ford Robertson, Columbia, for appellant.
    Charles J. Dykhouse, Columbia, for respondent.
    Before LAURA DENVIR STITH, P.J., ULRICH, J. and SMART, J.
   ROBERT G. ULRICH, Judge.

Debra Ann Cole Lincoln appeals the judgment of the trial court dissolving her marriage to Richard Lincoln. She contends that the trial court erred in limiting her maintenance award to 18 months. The judgment of the trial court limiting the duration of the order of maintenance is reversed.

The trial court entered its judgment dissolving the three-year marriage of the parties on March 31, 1999. It awarded the parties their separate property and divided the marital property. The court also ordered Mr. Lincoln to pay $175 per month in maintenance to Ms. Lincoln because Ms. Lincoln suffers from rheumatoid arthritis and is unable to meet her reasonable needs through her employment and social security disability payments. The court limited the maintenance award to 18 months. This appeal followed.

In her sole point on appeal, Ms. Lincoln contends that the court erred in limiting her maintenance award to 18 months because she is permanently disabled and no evidence was offered that her financial condition will improve after 18 months. Section 452.335.1 provides that the trial court may grant a maintenance order if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs and is unable to support herself through appropriate employment. § 452.335.1, RSMo 1994. Once the court determines that a maintenance award is necessary, it must set the amount and duration of the award after careful consideration of all relevant factors found in section 452.335.2. § 452.335.2. A maintenance award of limited duration is justified only where substantial evidence exists of an impending change in the financial condition of the parties. Allen v. Allen, 961 S.W.2d 891, 896 (Mo.App. W.D.1998). Maintenance should not be prospectively terminated if no evidence is presented or no reasonable expectation can be made that the circumstances of the parties will be markedly different in the future. Id. Thus, the judicial preference is for a maintenance award of unlimited duration. Id. Limitation on the duration of a maintenance award based on mere speculation or not supported by sufficient evidence that the parties’ circumstances will be markedly different in the future constitutes an abuse of discretion. Judy v. Judy, 998 S.W.2d 45, 51 (Mo.App. W.D.1999).

The record reveals that Ms. Lincoln suffers from rheumatoid arthritis, a chronic, incurable illness. The illness necessitates permanent medical care and inhibits her ability to work. Although Ms. Lincoln has a college degree in interior design, her illness prevents her from working in the field. Despite her physician’s discouraging her from working, Ms. Lincoln answers telephones earning $7.50 per hour. She also receives social security disability benefits of $433 per month. Mr. Lincoln, on the other hand, earned approximately $40,-000 in 1997, and he testified that he earned even more in 1998. No evidence was offered of an impending change in Ms. Lincoln’s medical or financial condition. To the contrary, in a letter introduced at trial, Ms. Lincoln’s physician stated that her prognosis for recovery is non-existent, that remission, which she has not experienced, is the best that she can hope for, and that she is unlikely to ever maintain meaningful employment. Likewise, no evidence was offered indicating that Mr. Lincoln’s means will decrease in the future. Where no evidence was presented that the circumstances of the parties will be markedly different in the future, the trial court abused its discretion in limiting the maintenance award to 18 months.

Mr. Lincoln argues that the trial court based its durational limitation on maintenance on the length of time Ms. Lincoln is eligible to continue her health care insurance coverage through his employment. He cites two cases, Rich v. Rich, 871 S.W.2d 618 (Mo.App. E.D.1994), and In re Marriage of Davis, 821 S.W.2d 123 (Mo. App. W.D.1991), in support of his argument that the trial court did not abuse its discretion in terminating his maintenance obligation after 18 months. Such cases, however, are inapposite. First, Mr. Lincoln’s argument assumes the trial court rested its judgment on such a basis. The trial court did not specify why it limited the maintenance award to 18 months, and the record does not support such assumption. The court’s maintenance award was $175 per month. The record, however, indicates that the cost to continue Ms. Lincoln’s health insurance coverage through Mr. Lincoln’s employer will be $158. Secondly, the cases cited by Mr. Lincoln involve termination of orders to provide health insurance at the end of the period the recipient spouse was eligible for continued coverage following dissolution under the federal COBRA law. In this case, Mr. Lincoln was not required to pay health insurance premiums to provide Ms. Lincoln with medical insurance for 18 months through the COBRA plan. Instead, he was ordered to pay her $175 per month in maintenance because she is unable to meet her reasonable needs through her employment and social security disability benefits. Finally, even assuming the court based its future termination of maintenance on the time Ms. Lincoln’s eligibility under COBRA to continue health insurance coverage through Mr. Lincoln’s employer expires, such termination was not justified under the circumstances in this case. As discussed, the record does not support a reasonable expectation that Ms. Lincoln’s circumstances will be markedly better in the future. The record suggests that at the end of her eligibility to continue her health insurance through the COBRA plan, Ms. Lincoln will be without health insurance and, therefore, in a worse financial situation. The limitation on the duration of the maintenance award was, therefore, an abuse of discretion.

The judgment of the trial court limiting the duration of the order of maintenance is reversed. It is ordered, adjudged, and decreed by the Court that Richard S. Lincoln shall pay maintenance of $175 per month to Debra Ann Cole Lincoln without limit as to duration. Rule 84.14.

LAURA DENVIR STITH, P.J. and SMART, J. concur.

      . Mr. Lincoln offered evidence that his monthly expenses exceed his monthly income. He argues that in limiting the duration of his maintenance obligation, the trial court implicitly found that he could "deficit-spend” for a short time to provide Ms. Lincoln with the benefit of continuation of health insurance coverage for the period permitted but that his resources did not permit a maintenance award beyond that period. The trial court, however, did not make such a finding. Fur-thennore, the argument suggests that he currently is unable to pay maintenance and meet his own needs and is inconsistent with the trial court's award of maintenance to Ms. Lincoln after consideration of the factors in section 452.335.2, RSMo 1994, specifically subsection 8, which requires consideration by the court of the ability of the spouse from whom maintenance is sought to satisfy his needs while contributing to satisfy those of the spouse seeking maintenance.