text:
    In the Interest of J.D.N., a Child.
    No. 05-04-01735-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 27, 2006.

      J. Darlene Ewing, Law Offices of J. Darlene Ewing, Dallas, Godwin Nwaog-wugwu, Irving, Kenneth Chuks Onyenah, Dallas, for Appellant.
    Kalita Michelle Rose, Irving, for Appel-lee.
    Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
   OPINION

Opinion by

Justice WHITTINGTON.

Godwin C. “Ben” Nwaogwugwu appeals the trial court’s judgment requiring him to pay $1200 monthly child support. In two issues, Ben contends the trial judge abused her discretion by (i) imposing death penalty sanctions by striking his pleadings and deeming his monthly net resources to be $6000 and (ii) ordering Ben to pay $1200 a month in child support. We affirm the trial court’s judgment.

Background

Although not married, Ben and Kalita Michelle Rose had a child in February 1998. After the Attorney General of Texas filed a petition to establish the parent-child relationship, Ben filed a general denial. Kalita filed a general denial and counter-petition to establish parentage. In her petition, Kalita requested child support, including retroactive child support from the date of their child’s birth.

On July 18, 2003, Kalita served Ben with a request for production or inspection of documents. When Ben provided only his 2000 income tax return one month later, Kalita filed a motion to compel discovery and for sanctions. Following a December 9, 2003 hearing, the trial judge entered an order overruling Ben’s objections to Kali-ta’s July request for production and ordering production of all documents by December 23, 2003. The judge also ordered Ben to pay attorney’s fees of $720 to Kalita’s attorney as a sanction because of Ben’s failure to comply with a proper discovery request. On January 20, 2004, Ben filed a “Motion for New Trial,” claiming a judgment had been signed on December 22 and that neither Ben nor his counsel were present.

Kalita filed a motion for further sanctions on February 25, 2004. The motion alleged that Ben had failed to deliver the documents or to pay the $720 in attorney’s fees as a sanction as ordered by the trial judge. In response, Ben filed a “Motion to Set Aside Default Judgment on Motion to Compel and Sanctions” that was identical in content to his previously filed Motion for New Trial. On March 1, 2004, the trial judge entered an order, denying both of Ben’s motions and granting Kalita $750 in attorney’s fees. In an order dated March 11, 2004, the trial judge granted Kalita’s motion for further sanctions. The judge again ordered Ben to deliver all documents requested by Kalita in her request for production by March 15, 2004 and to pay attorney’s fees of $750 to Kalita’s attorney as a sanction for Ben’s failure to comply with the court’s December 22, 2003 order as well as the previous sanction amount of $720. In the order, the judge cautioned Ben that the failure “to comply with any portion of this Order will result in his answer being stricken and a default judgment being entered against him as a sanction for his discovery abuse and his repeated violations of this Court’s Orders.”

On May 5, 2004, the trial judge signed an order striking Ben’s answer for his failure to provide discovery to Kalita and for his failure to comply with the trial court’s previous orders. The judge noted that lesser sanctions had been tried but had been “ineffective to bring about compliance.” The judge also found that Ben was estopped from asserting his monthly-net resources were less than $6000 per month. That same day, the case proceeded to trial. During trial, Kalita testified Ben is an engineer with JBO Integration and owns JBO Design Consultants. Kalita testified that between September 2003 and February 2004, approximately $5000 a month was transferred into one of Ben’s bank accounts. According to Kalita, the $5000 transfer was “in addition to his income” that Ben receives from “his main job.” Kalita testified that although they did not know how much Ben earned, it appeared that he made more than $6000 a month. She testified Ben had been ordered to pay monthly temporary support of $550 beginning September 11, 2001 and that he currently owed $6,158.59 in back support. Kalita also testified she was requesting Ben pay Justin’s monthly health insurance premium of $21.78. After hearing this and other evidence and the argument of counsel, the trial judge found Ben to be the father of Kalita’s child, appointed Ben and Kalita joint managing conservators, and ordered Ben to pay child support of $1,221.78, per month (including health insurance reimbursement). This appeal followed.

Discovery Sanctions

Under his first issue, Ben contends the trial judge abused her discretion in imposing the death penalty sanction of striking his answer. Under this issue, Ben argues the sanction was “excessive and unjust.” For the reasons that follow, we disagree.

Discovery sanctions must be just under the circumstances. TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991) (whether district court imposed sanctions under paragraph 2(b) or paragraph 3, court must consider whether sanctions are just). We review a ruling on a motion for sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). The test under an abuse of discretion review is “not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but ‘whether the court acted without reference to any guiding rules and principles.’ ” Cire, 134 S.W.3d at 839 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). We reverse the judge’s ruling only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at 839; Downer, 701 S.W.2d at 242.

Rule 215.3 of the Texas Rules of Civil Procedure provides

If the court finds a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay, then the court in which the action is pending may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Such order of sanction shall be subject to review on appeal from the final judgment.

Tex.R. Civ. P. 215.3. Thus, after notice and hearing, a trial judge may sanction a party who has abused the discovery process by resisting discovery by (i) ordering “that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order,” (ii) “refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;” and (iii) “striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party.” See Tex. Rs. Civ. P. 215.2(b)(3), (4), (5) & 215.3.

In TransAmerican, the supreme court instituted a two-part test for determining whether a particular sanction is just.

First, there must be a direct nexus among the offensive conduct, the offender, and the sanction imposed. A just sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party, and the sanction should be visited upon the offender. The trial court must attempt to determine whether the offensive conduct is attributable to counsel only, to the party only, or to both. Second, just sanctions must not be excessive. In other words, a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing violators.

Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.2003) (internal citations omitted).

Although Ben contends the sanctions in this case were excessive and unjust, we disagree. Ben first argues that although he “may have been less than prompt in complying with orders of the court, he did eventually comply.” While Kalita’s trial counsel informed the judge that Ben paid “prior sanctions in the amount of $1470,” the record only shows it was paid by May 5, 2004, the date of the final hearing in this case. The trial judge first ordered Ben to pay $720 by December 22, 2003. The second sanctioned amount of $750 was due March 15, 2004. Each time, Ben failed to pay the sanctioned amount by the due date. In fact, in the second sanctions order, the trial judge ordered Ben to pay both sanction ¿mounts by March 15, 2004. Thus, the record shows Ben failed to pay the sanctioned amounts by the dates ordered by the trial judge. Furthermore, the record fails to show Ben delivered any of the documents as ordered by the trial judge in her December 22, 2003 and March 11, 2004 orders. Therefore, we conclude the record shows Ben did not comply with the trial court’s orders.

Next, Ben argues the record does not reflect that the “delays in the production of the information requested through discovery was Ben’s fault.” Again, we disagree. The trial court’s orders state that Ben failed to provide the requested documents and Ben failed to comply with the trial court’s orders, then they order Ben to comply, to provide the requested discovery documents, and to pay sanctions. We conclude the orders clearly state the delays in production were Ben’s fault and do not implicate Ben’s trial counsel.

Finally, Ben argues Kalita “did not exercise her right to obtain” the discovery information “from other sources” such as serving Ben’s bank with subpoenas or having the Attorney General of Texas get Ben’s income tax returns from the IRS. Ben’s argument ignores the simple fact that Ben was ordered by the trial judge to provide the documents listed in the July 18, 2003 request for production or inspection of documents. Whether certain documents, if any, were available through other sources is irrelevant. Ben failed to comply with two court orders requiring him to turn over the discovery information to Ka-lita. He was twice sanctioned and ordered to pay legal fees for his failure to comply. The legal fees assessed against Ben were specifically aimed toward remedying the prejudice caused, i.e., requiring Kalita and her trial counsel to file motions to compel and present evidence at hearings on the motions. In each order, Ben was also ordered to produce the documentation in question. In the March 11, 2004 order, the trial judge specifically cautioned Ben that his failure “to comply with any portion of this Order will result in his answer being stricken and a default judgment being entered against him as a sanction for his discovery abuse and his repeated violation of this Court’s Orders.” Because Ben, after repeated warnings, again failed to comply, the trial judge struck his pleadings and deemed his monthly net income to be $6000.

After reviewing the record, we conclude there was a direct nexus between Ben’s offensive conduct (failing to provide financial documentation regarding his monthly net resources in order to determine child support obligations) and the sanctions leveled against him. The sanctions were just in that they were directed against Ben’s abuse and toward remedying the prejudice caused to Kalita. In light of the record before us, we cannot conclude the trial judge abused her discretion in striking Ben’s answer and deeming his monthly net income to be $6000. We overrule his first issue.

Under his second issue, Ben questions whether it was proper to impose child support obligations at the maximum rate permitted under the family code guidelines “in the absence of proof that Ben’s statutory net resources total at least $6,000 per month.” Section 154.129 provides for child support to be twenty percent of the obligor parent’s net resources when the obligor parent has only one child before the court and no other children for whom the obligor parent has a duty of support. Tex. Fam.Code Ann. §§ 154.126 & 154.129 (Vernon 2002). In this case, Ben’s net monthly resources were deemed to be $6000. Thus, the $1200 per month child support amount ordered by the trial judge comports with the family code provisions.

To the extent Ben is complaining about the determination that his net monthly resources totaled $6000, we conclude this argument is merely a rehashing of his previous issue regarding sanctions. Having already concluded the trial judge did not err in striking his answer and ordering that the “designated facts” of his net monthly resources “shall be taken to be established for the purposes of the action,” we decline to revisit his argument again. We overrule his second issue.

We affirm the trial court’s judgment.

      . In his brief, Ben argues the record shows the discovery "documents were also produced, albeit in a 'trickle.' ” The portion of the record cited for this proposition is during Kalita’s trial counsel’s testimony regarding why attorney’s fees were higher than usual in this case. In response to Ben’s questioning, trial counsel testified that the that discovery documents came
      in like little trickle trains of discovery. And then we'd look at them and we notice that the account numbers don’t match up with other account numbers. We call to try and figure it out. We don’t get any cooperation. We have to set another hearing so that’s why these attorney fees are so high.
      Trial counsel did not testify, nor does any portion of the record reveal, that the discovery documents Ben was ordered to provide were ever provided.


source: Caselaw Access Project

author: Justice MOSELEY.

license: Public Domain

text:
    DAL-CHROME COMPANY, Appellant v. BRENNTAG SOUTHWEST, INC. f/k/a Advanced Chemical Distribution, Inc. d/b/a HCI Advanced Chemical Distribution, Inc., Appellee.
    No. 05-03-01643-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 27, 2006.

      Robert C. Jenevein, Douglas & Cole, P.C., Brady & Cole, P.C., Dallas, for Appellant.
    Kurt Howard Kuhn, Craig A. Morgan, Virginia K. Hoelscher, Brown McCarroll, L.L.P., Austin, for Appellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MOSELEY.

Dai-Chrome Company bought sulfuric acid from Brenntag Southwest, Inc. for use in its business. Later it sued Brenn-tag under the Deceptive Trade Practices-Consumer Protection Act (“DTPA”), asserting that the acid had been contaminated. Brenntag counterclaimed for unpaid invoices for chemicals it sold to Dal-Chrome. Based on a jury verdict in favor of Dai-Chrome and the parties’ stipulation on Brenntag’s counterclaim, the trial court entered judgment for Dai-Chrome for economic damages, additional damages, prejudgment interest, and attorneys’ fees after offsetting Brenntag’s damages, prejudgment interest, and attorneys’ fees on its counterclaim. Both parties appeal. In three issues, Dai-Chrome asserts the trial court erred by: (1) offsetting Brenntag’s damages from Dal-Chrome’s actual damages before calculating the limit on DTPA additional damages; (2) awarding Brenn-tag attorneys’ fees because the fees were not segregated between fees, incurred in its unsuccessful defense of the DTPA claim and fees incurred in presenting the counterclaim; and (3) awarding post-judgment interest at a lower rate than the rate in effect at the time from which the parties agreed post-judgment interest would be calculated. Brenntag brings three issues arguing the evidence is legally and factually insufficient to support the jury’s findings (1) that Brenntag violated the DTPA, (2) that it did so knowingly, and (3) of the amount of Dal-Chrome’s benefit of the bargain damages. Brenntag’s fourth issue asserts the trial court erred by awarding Dai-Chrome economic damages plus treble damages resulting in an award of quadruple damages.

For the reasons set forth herein, we modify the trial court’s judgment to avoid the award of quadruple damages, and affirm the judgment as modified.

Background

Dai-Chrome sells refurbished and new chrome bumpers for motor vehicles. It uses various industrial chemicals in the chrome plating process. One of those chemicals is 93 percent tech grade sulfuric acid, which it uses to control the pH level in the plating baths. (Tech grade is the lowest grade of sulfuric acid and also the least expensive.) In 1998, Dai-Chrome started buying its sulfuric acid and other chemicals from Brenntag. Thereafter, several bumpers were rejected because the chrome was clouded or hazed after being plated. Other bumpers appeared acceptable, but were later returned after customers reported problems with the chrome peeling or becoming discolored. Over 400 bumpers were affected. Dai-Chrome claimed the sulfuric acid sold by Brenntag was contaminated, causing the plating process to fail. Dai-Chrome sued Brenntag for violations of the DTPA and for breach of warranty. Brenntag counterclaimed for unpaid invoices for chemicals sold to Dal-Chrome.

After resting its case, Dai-Chrome stipulated the invoices comprising Brenntag’s counterclaim were unpaid. After the close of the evidence, Dai-Chrome stipulated that the amounts on the invoices were due and owing to Brenntag; thus the counterclaim was not submitted to the jury.

The jury found that Brenntag had violated the DTPA by misrepresenting the quality and characteristics of the sulfuric acid, engaged in unconscionable conduct, and failed to comply with its warranty, all causing damages to Dai-Chrome. The jury also found Brenntag committed these acts knowingly. The jury determined Dal-Chrome’s actual damages totaled $99,840.55 and awarded $750,000.00 as additional damages based on the knowing finding. The jury also found the reasonable and necessary attorneys’ fees for Dal-Chrome in prosecuting its claim through trial were $165,000, and for Brenntag in prosecuting its claim through trial were $80,000.

Dai-Chrome moved for judgment on the verdict and Brenntag moved for judgment notwithstanding the verdict. The parties agreed to postpone the hearing on the motion for judgment; their agreement stated that “any post-judgment interest awarded shall be calculated beginning May 27, 2003.”

The trial court rendered judgment on October 24, 2003. It calculated the judgment by subtracting Brenntag’s damages on its counterclaim (as stipulated by the parties) from Dal-Chrome’s actual damages (as found by the jury) to arrive at a net actual damage amount for Dal-Chrome. The trial court then trebled this amount to determine the statutory limit on additional damages under the DTPA. Tex. Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon Supp.2005). The judgment then totaled Dal-Chrome’s net actual damages, the limited additional damages, Dal-Chrome’s prejudgment interest, and its attorneys’ fees. From this total, the judgment subtracted Brenntag’s prejudgment interest on the counterclaim and Brenntag’s attorneys’ fees as found by the jury. The judgment awarded post-judgment interest on the net award to Dai-Chrome at the rate of ten percent per annum beginning May 27, 2003 as agreed by the parties.

Brenntag filed a timely motion for new trial. More than thirty days after the judgment was signed, Brenntag filed a motion to modify the judgment to reduce the post-judgment interest rate from ten percent to five percent per annum because the judgment was rendered after the effective date of the recently amended post-judgment interest statute. Tex. Fin.Code Ann. § 304.003 (Vernon Supp.2005). On January 16, 2004, during the period the trial court retained plenary power over the judgment, the trial court modified the judgment to reduce the post-judgment interest rate from ten percent to five percent, calculated from May 27, 2003. Both parties appeal the modified judgment.

Discussion

1. Sufficiency of the Evidence

We begin with Brenntag’s legal and factual sufficiency issues. Brenntag’s first three issues argue the evidence is legally and factually insufficient to support: (i) any of the liability findings against it; (ii) the “knowing violation” finding; and (iii) one element of Dal-Chrome’s economic damages finding. To evaluate the legal sufficiency of the evidence to support a finding, we must “determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); see also St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.). We view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005).

To evaluate the factual sufficiency of the evidence to support a finding, we consider all the evidence and will set aside the verdict only if the evidence supporting the jury finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). This Court, however, is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

a. Liability Findings

In its first issue, Brenntag challenges each of the jury’s liability findings. We address the jury’s finding in response to question one: that Brenntag represented that the sulfuric acid had characteristics, ingredients, uses, or benefits that it did not have or that the sulfuric acid was of a particular standard, quality, or grade when it was of another.

The DTPA prohibits “[f|alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce.” Tex. Bus. & Com.Code Ann. § 17.46(a) (Vernon Supp.2005). Section 17.46(b) is a laundry list of specifically prohibited acts. See Tex. Bus. & Com.Code Ann. § 17.46(b). Sections 17.46(b)(5) and 17.46(b)(7) prohibit “false, misleading, or deceptive acts or practices [including] ... representing that goods and services have ... characteristics, ingredients, uses, [or] benefits ... which they do not have” and “representing that goods or services are of a particular standard, quality, or grade ... if they are of another.” Tex. Bus. & Com.Code Ann. § 17.46(b)(5) & (7). Actionable representations may be oral or written. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex.2001). A party need not prove intent to make a misrepresentation under sections 17.46(b)(5) or 17.46(b)(7); rather, the act of making the false representation is itself actionable. Helena Chem. Co., 47 S.W.3d at 502; Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex.1980); Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 822 (Tex.App.-Dallas 2008, pet. denied).

Brenntag argues the evidence is legally and factually insufficient to support this finding because it represented only that the sulfuric acid would be tech grade 93 percent and that is what it delivered. Dai-Chrome agrees it ordered — and received — tech grade 93 percent sulfuric acid, but argues the acid was contaminated with organic material and other substances. Brenntag contends that Dal-Chrome failed to prove the manufacturer’s specifications for the acid and thus there is no evidence the acid did not meet those specifications.

The record indicates Brenntag told Dal-Chrome that it would provide next-day delivery, competitive pricing, and quality products. Brenntag also gave Dai-Chrome a brochure that stated in part, “All products ... being delivered to customers must meet the manufacturer’s product specifications. Making sure that the specifications are met is the purpose of quality control.” However, the evidence indicates that Brenntag’s quality control procedures did not involve any testing of the sulfuric acid to determine whether it met product specifications before it was delivered to the customer. Instead, Brenntag’s procedures consisted of taking a retain sample of the acid and obtaining a certificate of compliance for the acid from Brenntag’s supplier. A certificate of compliance states the assay or concentration of the acid and contains a pre-printed list of the maximum limits for several substances. According to Brenn-tag it is common practice in the industry to rely on these certificates and representations by suppliers and manufacturers about the contents of the chemicals delivered.

Dai-Chrome told Brenntag the types of chemicals it had been using, received price quotes, and began ordering from Brenn-tag. Prior to delivering the sulfuric acid to Dai-Chrome, Brenntag took a retain sample of the acid and obtained a certificate of compliance for the acid from its supplier, a company called Fe3. The certificate stated the concentration of the acid was 94 percent-above the minimum for tech grade sulfuric acid. (This certificate was not provided to Dai-Chrome until after the problems arose. A witness for Dai-Chrome said Brenntag’s salesman represented the certificate as the manufacturer’s specifications.)

After Dai-Chrome starting using the Brenntag-supplied acid, it experienced problems controlling the pH levels in the plating baths. It also experienced problems with hazing, flaking, and adhesion of the chrome plating to the bumpers. A consultant determined these problems were caused by the sulfuric acid, based on his ability to reproduce the problems in the laboratory using the acid in question. Further, after Dai-Chrome switched to another supplier for tech grade 93 percent sulfuric acid, the pH control returned to normal and the plating problems gradually stopped. •

Dai-Chrome met with Brenntag in June of 1998 to discuss the problems. Brenntag indicated it would “stand behind” its product if something was wrong with it, but contended Dal-Chrome’s problems were caused by something else. Nevertheless, Brenntag accepted the return of some of the sulfuric acid and issued a credit memo to Dai-Chrome for the purchase price of the returned acid. At the meeting, the parties discussed testing the acid with independent laboratories, apparently to compare the results.

Dai-Chrome hired an expert to test both the sulfuric acid from Brenntag and the sulfuric acid from another supplier that Dai-Chrome was using without problems. The expert testified that while tests showed both samples were 93 percent sulfuric acid, the Brenntag acid contained elevated levels of iron, nitrates, and organic matter compared to the other sample. Based on the test results from other laboratories and his own tests, the expert specifically testified that the sulfuric acid in question did not comply with the manufacturer’s specification. On cross-examination, the expert testified he did not know who the manufacturer of the acid was and that he did not believe Brenntag’s supplier, Fe3, manufactured sulfuric acid.

After the meeting, Brenntag had the acid returned by Dai-Chrome tested. The results showed the levels of iron, nitrates, nickel, and antimony were higher than the maximum limits shown on the Fe3 certificate. Then — and for the first time— Brenntag had the retain sample of the acid tested for its chemical composition. Those tests also showed levels of iron, nitrates, nickel, and antimony higher than the maximum limits on the Fe3 certificate. Shortly after Brenntag received those test results, it sent a letter to Fe3 describing Dal-Chrome’s problems with the acid and stating that earlier and later shipments of sulfuric acid did not show the same results. The letter indicated the retain sample-taken directly from the tanker — did not comply with the specifications in the certificate. Brenntag stated it would not accept responsibility for the losses associated with the acid shipment and requested Fe3 to review Dal-Chrome’s damage claim.

There is evidence Brenntag represented the acid would meet the manufacturer’s product specifications and that Brenntag would perform quality control measures to make sure those specifications were met. Although the evidence indicates the sulfuric acid sold to Dai-Chrome was 93 percent sulfuric acid, there was evidence the acid was contaminated with other substances, and that before Brenntag delivered the acid it did not perform any quality control measures to make sure the product specifications were met. There is evidence Brenntag represented it would provide Dai-Chrome with the same chemicals Dai-Chrome had been using, but that the sulfuric acid supplied did not meet that representation. Thus, there is evidence Brenntag represented the sulfuric acid had characteristics, ingredients, uses, or benefits that it did not have or that the sulfuric acid was of a particular standard, quality, or grade when it was of another.

Brenntag argues that it represented only that the acid would meet the manufacturer’s specifications and there was no evidence of the actual manufacturer’s specifications for these alleged contaminates. Thus, the argument goes, the evidence does not show that Brenntag represented the acid would not be contaminated with these substances. However, the record indicates it is common practice in the industry to rely on certificates from suppliers as to the content of chemicals delivered, that the acid at issue did not meet the specifications set forth in the certificate, and that Brenntag used the failure to meet those specifications to make a claim on Fe3 to cover Dal-Chrome’s losses. There is also evidence that Brenntag represented to Dai-Chrome that the Fe3 certificates were the manufacturer’s specifications. Based on the evidence in the record, the jury could have reasonably concluded those representations were false.

Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we conclude the evidence is legally sufficient to support the jury’s verdict. City of Keller, 168 S.W.3d at 830. Further, while there were some conflicts in the testimony, we will not substitute our judgment for that of the jury’s. Golden Eagle Archery, Inc., v. Jackson, 116 S.W.3d 757, 761 (Tex.2008) (“[T]he jury is the sole judge of the credibility of witnesses and the weight to be given their testimony.”). It is the jury’s role “to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.” Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952). After reviewing all the evidence, we cannot say the evidence is so weak that the jury finding is clearly wrong and unjust. Thus the evidence is factually sufficient to support the jury’s finding in response to question one. We need not address Brenntag’s challenges to the other liability findings. Tex.R.App. P. 47.1. We resolve Brenntag’s first issue against it.

6. Knowing Violation Finding

The jury found that Brenntag represented the sulfuric acid had characteristics, ingredients, uses, or benefits that it did not have or that the sulfuric acid was of a particular standard, quality, or grade when it was of another. Conditioned on this finding, the jury was asked “Did [Brenntag] engage in any such conduct knowingly?” The jury was instructed, without objection, that:

“Knowingly ” means actual awareness, at the time of the conduct, of the falsity, deception, or unfairness of the conduct in question or actual awareness of the conduct constituting a failure to comply with a warranty. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

See Tex. Bus. & Com.Code Ann. § 17.45(9) (Vernon 2002). The jury answered “Yes.” Brenntag’s second issue challenges the legal and factual sufficiency of the evidence to support this finding.

The supreme court has described the meaning of actual awareness under the DTPA:

“Actual awareness” does not mean merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to him, but I’m going to do it anyway”.

St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex.1998). Actual awareness is more than conscious indifference to another’s rights or welfare. Id.

Dai-Chrome argues the “knowing violation” finding is supported by evidence that, although Brenntag represented the acid would conform to the manufacturer’s specifications, and that “[m]aking sure that the specifications are met is the purpose of quality control,” the acid in fact did not live up to Brenntag’s representations and Brenntag’s standard procedure was not to test the acid unless a customer had a particular specification. The record reflects Brenntag represented its products would meet the manufacturer’s specifications and that its quality control measures would make sure those specifications were met. Yet, there is evidence that Brenntag was aware it would not test sulfuric acid before delivery to customers and that its quality control procedures did not call for testing of the acid before delivery to customers. There is evidence that Brenntag represented its quality control procedures would ensure the acid met the manufacturer’s specifications when in fact those quality control procedures did not require any testing for compliance with manufacturer’s specifications.

The jury could have reasonably inferred that Brenntag knowingly led Dai-Chrome to believe that Brenntag’s quality control measures would make sure that the acid complied with the manufacturer’s specifications, and that Brenntag was aware this was deceptive and unfair because it did not test for compliance with specifications but merely relied on its supplier’s certificate of analysis. Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we conclude the evidence is legally sufficient to support the jury’s finding. City of Keller, 168 S.W.3d at 830.

Brenntag argues the evidence is insufficient because the measures it took to insure product quality met or exceeded the standard practices in the industry. Brenntag also asserts that if Dai-Chrome had had any specifications for the sulfuric acid, Brenntag would have tested for those specifications. There was evidence that Brenntag took steps to avoid contamination when it took delivery of sulfuric acid (such as cleaning the drums used to store sulfuric acid between uses and using dedicated hoses to transfer the sulfuric acid) and performed a visual inspection of the retain sample before shipping. However, there was evidence that these procedures would not disclose whether the acid was contaminated and would not verify that the manufacturer’s specifications were met. Brenntag did not test sulfuric acid for compliance with specifications unless a customer had a specific requirement and requested such testing.

Moreover, the record indicates Brenntag represented it would stand behind the acid if anything was wrong with it, but did not disclose the results of its testing of the acid returned by Dai-Chrome and of the retain sample until after this litigation was filed. The jury heard evidence that the regional manager for Brenntag testified in his deposition that Brenntag does not make a blanket statement that every product a customer buys will meet manufacturer’s specifications. Brenntag’s product brochure stated, however, that “all products ... delivered to customers must meet the manufacturer’s specifications.” The jury could reasonably infer from the evidence and objective manifestations that Brenntag had actual awareness of the falsity, deception, or unfairness of its conduct at the time of the conduct. See Tex. Bus. & Com.Code Ann. § 17.45(9).

After considering all the evidence we cannot say the evidence is so weak that the jury finding is clearly wrong and unjust. Thus there is factually sufficient evidence to support the jury’s finding that Brenntag knowingly engaged in conduct violating the DTPA. See Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 584 (Tex.App.-Austin 2003, no pet.) (evidence, including evidence that livestock show consistently mislead disqualified participants about its intentions to retest drug samples of animals making it impossible for participants to participate in or monitor tests, was sufficient to support finding of knowing violation). We resolve Brenn-tag’s second issue against it.

c. Economic Damages Finding

The jury was asked to find, as one element of Dal-Chrome’s economic damages, the amount of the loss of the benefit of the bargain. Without objection, the jury was instructed that:

Loss of the benefit of the bargain. “The difference, if any, in the value of the bumpers after chrome-plating involving the acid in question and the value of the bumpers had if the acid had been as represented. The difference, if any, shall be determined at the time and place the chrome-plating was attempted.”

Brenntag did not object to the wording of this instruction at trial and does not chai-lenge on appeal whether the instruction is a correct statement of the benefit-of-the-bargain measure of damages. Because Brenntag is not contesting the form of the benefít-of-the-bargain damage instruction, we review the sufficiency of the evidence in light of the jury charge given and express no opinion regarding the instruction. See St. Joseph Hosp., 94 S.W.3d at 530 (discussing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000)).

The jury found the benefit-of-the-bargain damages were $93,375.55; an amount equal to Dal-Chrome’s evidence that it lost 461 bumpers at an average sales price of $202.55 each. In its third issue, Brenntag argues the evidence is insufficient to support the jury’s finding. Brenntag contends the damage award is based on speculative claims of lost sales and on gross profits instead of net profits.

Brenntag’s main argument is that Dal-Chrome’s damage evidence was of gross profits rather then net profits and therefore insufficient. However, the jury was not asked to determine Dal-Chrome’s profit, either gross or net, on the affected bumpers; it was only asked to determine the difference in the value of the bumpers if they had been chrome-plated using acid as represented and the value of the bumpers plated using the acid actually delivered. Thus the issue of whether it is proper to use gross or net profits in calculating damages never arose in this case.

A total of 461 bumpers were affected by the plating problems. The record contains evidence that Dai-Chrome could have sold properly plated bumpers for an average price of $202.55. Based on Dal-Chrome’s price list at the time, Dal-Chrome’s accountant selected 100 chrome bumpers ranging in price from $100 to $336 and calculated an average price of $202.55. In addition, the jury heard evidence that Dal-Chrome records in its records a loss of $70 per bumper for rejected bumpers and that Dai-Chrome offered to settle with Brenn-tag at one point for $25 per bumper.

The jury was not asked to consider whether Dai-Chrome lost sales as a result of the problems. However, there was evidence Dai-Chrome had a ready market for its bumpers during the time in question. Dai-Chrome was able to sell all its inventory about once a month. In June of 1998, Dai-Chrome had more demand than its available supply and it had to buy additional bumpers from other suppliers because of the 461 bumpers it could not use. This is some evidence of lost sales.

There was also evidence that the affected bumpers had little or no value. At the time of trial, the 461 bumpers were still in the yard at Dal-Chrome’s facility. Brenn-tag introduced photographs showing the condition of the bumpers. Witnesses testified it was not cost-effective to strip the defective chrome-plating off of the damaged bumpers and then re-plate them. While Dal-Chrome’s accountant stated it was possible the bumpers had some scrap value, the jury could reasonably conclude from the evidence, including testimony that the bumpers could not be repaired and the condition of the bumpers shown in the photographs, that the scrap value was nominal.

After reviewing the evidence in the record, we conclude the evidence is legally and factually sufficient to support the jury’s finding. We resolve Brenntag’s third issue against it.

2. Economic Damages Plus Additional Damages

The trial court awarded Dal-Chrome’s net actual damages plus three times that amount based on the jury’s award of additional damages for the knowing finding. Tex. Bus. & Com.Code Ann. § 17.50(b)(1) (“If the trier of fact finds that the conduct of the defendant was committed knowingly ... the trier of fact may award not more than three times the amount of economic damages”). However, the DTPA permits a maximum award of three times the amount of economic damages for a knowing violation. See Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 240-42 (Tex.1985) (interpreting prior version of DTPA). Brenntag’s fourth issue argues the trial court erred in awarding quadruple damages for a knowing violation of the DTPA.

Dai-Chrome agrees that the trial court may not award both actual damages plus three times actual damages. We resolve Brenntag’s fourth issue in its favor, and will modify to trial court’s judgment to limit the DTPA award to three times the amount of economic damages found by the jury after considering the issue of offset as discussed below.

3. Dal-Chrome’s Issues: Offset of Counterclaim and Brenntag’s Attorneys’ Fees

Dal-Chrome’s first issue argues the trial court improperly offset the amount it owed on Brenntag’s counterclaim from Dal-Chrome’s actual damages before calculating the statutory limit on additional damages the trial court may award based on the jury’s findings of additional damages and a knowing violation of the DTPA. See Tex. Bus. & Com.Code Ann. § 17.50(b)(1). Dal-Chrome’s second issue challenges the jury’s finding of Brenntag’s attorneys’ fees because Brenntag did not segregate its fees for defending the DTPA claim from the fees for presenting its counterclaim. Brenntag argues that Dai-Chrome failed to preserve error on these issues because the record does not show it presented them to the trial court and obtained a ruling. See Tex.R.App. P. 33.1(a).

To present a complaint for appellate review, the record must show: (a) the complaint was presented to the trial court by a timely request, objection, or motion stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context; and (b) the trial court ruled on the request. Tex.R.App. P. 33.1(a). To preserve a complaint of error in a judgment, a party must inform the trial court of its objection by a motion to amend or correct the judgment, a motion for new trial, or some other similar method. Arthur’s Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex.App.-Dallas 1999, no pet.).

a. Offset of Damages Before or After Trebling

The record indicates Dai-Chrome did not file a motion for new trial or a motion to modify or correct the judgment following either the trial court’s initial judgment or the modified judgment. Although Dal-Chrome filed a motion for judgment on the jury’s verdict, this motion did not address the issue of an offset for Brenntag’s counterclaim or the jury’s finding of Brenntag’s attorneys’ fees for presenting the counterclaim. The record does not include any other post-judgment motions raising Dal-Chrome’s arguments about offset.

Dai-Chrome argues these issues were presented to the trial court at the hearing on its motion for judgment on the verdict. We have no record of the hearing nor do we have a bill of exception regarding the hearing; and Dal-Chrome admits no record was made of that hearing. Dal-Chrome argues it presented the issues to the trial court in a proposed judgment it submitted at the hearing. This proposed judgment was not included in the original clerk’s record. Dai-Chrome filed a letter requesting a supplemental clerk’s record and attached a copy of the proposed judgment to its request. See Tex.R.App. P. 34.5(c). The supplemental clerk’s record, however, contains only Dal-Chrome’s request for a supplemental record with the proposed judgment attached to that request. This is the only copy of the proposed judgment in the supplemental record, and it is not file-stamped or marked received; there is nothing in the record to indicate it was presented to the trial court, or that any issues concerning the computation of the offset and limit on additional damages were argued to the trial court. See Intemnarque Auto. Prod., Inc. v. Feldman, 21 S.W.3d 544, 554 (Tex.App.-Texarkana 2000, no pet.) (although rule 34.5 allows for supplementation of record, bankruptcy order was not admitted as evidence when trial court ruled and therefore record could not be supplemented); Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 795 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (rule 34.5(c) does not permit record in restricted appeal to be supplemented unless it is clear that item to be considered was before trial court when it rendered default judgment).

Once the trial court rendered a judgment on the verdict that Dai-Chrome was not entirely happy with, Dai-Chrome was required to present its complaints about the actual judgment rendered to the trial court and obtain a ruling. See Arthur’s Garage, 997 S.W.2d at 816. We conclude the record before us does not show that Dai-Chrome presented its first issue to the trial court by a timely request, motion, or objection and obtained a ruling on the issue. Thus, the issue is not preserved for appeal. Tex.R.App. P. 33.1(a). We resolve Dal-Chrome’s first issue against it.

b. Brenntag’s Attorneys’ Fees

Dal-Chrome’s argument that Brenntag failed to segregate its attorneys’ fees raises an issue as to the factual sufficiency of the evidence to support the jury’s finding of the reasonable amount of Brenn-tag’s attorneys’ fees for presenting its counterclaim. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11-12 (Tex.1991) (concluding evidence of unsegregated attorneys’ fees is some evidence of segregated fees). A factual sufficiency point in a jury trial must be preserved by a motion for new trial. Tex.R. Civ. P. 324(b); Tex. R.App. P. 33.1(a). Dai-Chrome did not file a motion for new trial challenging the factual sufficiency of the evidence to support the finding of Brenntag’s attorneys’ fees. Nor did Dai-Chrome file a motion to disregard the jury finding or for judgment notwithstanding the verdict regarding the finding of Brenntag’s attorneys’ fees.

Dai-Chrome did move for a directed verdict, arguing that Brenntag failed, to segregate the fees for presenting the counterclaim from those for defending Dal-Chrome’s claims. The trial court denied the motion for directed verdict. However, a motion for directed verdict is a motion challenging the legal sufficiency of the evidence on a particular issue. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (“A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit.”). The motion is properly denied if there is more than a scintilla of evidence on the issue. See Szczepanik v. First So. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam).

Dal-Chrome’s motion was properly denied because, “[e]vidence of unsegregated attorney’s fees is more than a scintilla of evidence of segregated attorney’s fees, i.e. what a reasonable attorney’s fee would be for the entire case indicates what the segregated amounts should be.” Stewart Title Guar., 822 S.W.2d at 12. Because a motion for directed verdict or judgment notwithstanding the verdict asserts the evidence is legally insufficient, it does not preserve a complaint on appeal that the evidence is factually insufficient. Tex.R.App. P. 83.1(a) (objection must state specific grounds of complaint unless apparent from context); see Anthony Equip. Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191, 203 n. 5 (Tex.App.-Dallas 2003, pet. dism’d) (legal sufficiency issue preserved by motion for directed verdict, but factual sufficiency issue was not preserved where no motion for new trial was filed); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ) (citing Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991)).

We conclude the record before us does not show that Dai-Chrome presented its second issue to the trial court by a timely request, motion, or objection and obtained a ruling on the issue. Thus, the issue is not preserved for appeal. Tex.R.App. P. 33.1(a). We resolve Dal-Chrome’s second issue against it.

4. Rate of Post-Judgment Interest

Dal-Chrome’s third issue complains that the trial court erred by reducing the post-judgment interest rate to five percent in the final modified judgment because the post-judgment interest rate was ten percent at the time the parties agreed that post-judgment interest would be calculated beginning May 27, 2003. This issue was argued on the record at the hearing on Brenntag’s motion to modify the judgment. Dai-Chrome presented its arguments for a higher post-judgment interest rate under the parties’ agreement, but the trial court rejected these arguments when it modified the judgment. Thus, the issue is preserved for appeal. Tex.R.App. P. 33.1(a).

Dai-Chrome initially argues that Brenntag’s motion to modify the judgment was not filed within 30 days of the original judgment and was not timely. See Tex.R. Civ. P. 329b(g). We agree the motion was not timely, however, Brenntag’s motion for new trial was timely and extended the trial court’s plenary power to “grant a new trial or to vacate, modify, correct, or reform the judgment” until 30 days after the motion for new trial was overruled. Tex.R. Civ. P. 329b(e). The modified judgment was signed within 30 days after the motion for new trial was overruled by operation of law. Even though Brenntag’s motion to modify the-judgment was not timely, the trial court retained plenary power over its judgment by reason of the timely motion for new trial. Thus the trial court had plenary power to modify the post-judgment interest rate at the time the modified judgment was signed.

'At the time the trial court signed the original judgment on October 24, 2003, the statutory post-judgment interest rate was five percent. Tex. Fin.Code Ann. § 304.003(a). The October 24, 2003 judgment, however, awarded post-judgment interest at the rate of ten percent “beginning on May 27, 2003 per the agreement of the parties.” Brenntag’s motion to modify the judgment (although untimely) requested the trial court to modify the judgment to award post-judgment interest at the rate of five percent under section 304.003(a).

The letter agreement states that any post-judgment interest will be calculated beginning May 27, 2003 and that the agreement does not waive any right to appeal, “excluding the date on which post-judgment interest begins.” Dai-Chrome admits no rate of interest is specified in the letter agreement, but argues the May 2003 post-judgment interest rate (ten percent) was an implied term of the agreement and thus post-judgment interest is governed by finance code section 304.002, which allows interest on judgments on contracts at the rate of interest specified in the agreement. Tex. Fin.Code ANN. § 304.002. However, section 304.002 applies to a judgment on a contract that provides for interest and the rate is specified in the contract. Id. The judgment in this case was for violations of the DTPA, and not on the letter agreement. Further, the letter agreement does not specify a rate of interest as required by section 304.002.

We conclude the trial court did not abuse its discretion in concluding the parties agreed only that post-judgment interest would be calculated beginning May 27, 2003 and did not agree to a specific rate of interest. Thus, the trial court did not err in modifying the judgment to award post-judgment interest at the rate specified by section 304.003(c). We resolve Dal-Chrome’s third issue against it.

Conclusion

Having resolved Brenntag’s fourth issue in its favor, we must modify the trial court’s judgment. We modify the trial court’s judgment to award Dai-Chrome damages against Brenntag based on the following calculations:

1. Discretionary damages of not more than three times net economic damages after offsetting Brenntag’s actual damages ($99,840.55-$19,893.61 = $79,946.94) $239,840.82

2. Dal-Chrome’s pre-judgment interest $ 21,910.01

3. Dal-Chrome’s attorneys’ fees through judgment $165,000.00

Sub Total $426,740.83

4. Offset by Brenntag’s pre-judgment interest to 10/24/03 ($ 4,256.74)

5. Offset by Brenntag’s attorneys’ fees through trial on its counterclaim ($ 80.000.00)

Net Award to Dai-Chrome $342,494.09

In all other respects, the trial court’s January 16, 2004 modified judgment is affirmed as modified.

      . Because the original judgment was signed after the effective dates of both of the bills amending section 304.003(c), we need not decide which effective date controls. See Bic Pen Corp. v. Carter, 171 S.W.3d 657, 677-80 (Tex.App.-Corpus Christi 2005, no pet. h.) (discussing different effective dates of bills amending section 304.003(c)); City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 388-89 (Tex.App.-Dallas 2004, no pet.).

      . Because neither party argues otherwise, we assume without deciding that parties may stipulate that post-judgment interest begins to accrue on a date other than the date the judgment is rendered. See Tex. Fin.Code Ann. § 304.005(a) ("Except as provided in Subsection (b), postjudgment interest on a money judgment of a court of this state accrues during the period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied.").

      . A money judgment of a court of this state on a contract that provides for interest or time price differential earns postjudgment interest at a rate equal to the lesser of:
      (1) the rate specified in the contract, which may be a variable rate; or
      (2) 18 percent a year.


author: COOPER, Justice. LAMBERT, J., COOPER, Justice, SCOTT, Justice,

text:
    Lewis F. KRAHWINKEL, Jr., Appellant/Cross-Appellee, v. COMMONWEALTH ALUMINUM CORPORATION, Appellee/Cross-Appellant.
    No. 2003-SC-0708-DG, 2004-SC-0219-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    As Modified on Denial of Rehearing Feb. 23, 2006.
    Jeanie Owen Miller, Owensboro, Counsel for Appellant/Cross-Appellee.
    Marvin P. Nunley, McCarroll, Nunley & Hartz, Owensboro, Counsel for Appel-lee/Cross-Appellant.
   COOPER, Justice.

Appellee, Commonwealth Aluminum Corporation (“Commonwealth”) contracted with Intech-Industrial Technology, - Inc. (“Intech”) for the purchase and installation of a new fluid capture system in its industrial plant. The contract required Intech to install a large tank in the basement of the plant into which groundwater containing PCBs would be pumped for containment and disposal. On January 24, 1996, the tank was unloaded from an Intech truck and moved by a permanently installed overhead crane across the motor room of Commonwealth’s plant to a room containing a large hole in the floor through which the tank was lowered to the basement. The grate that normally covered the hole was removed for this purpose. Appellant, Lewis F. Krahwinkel, Jr., an employee of Intech, was assigned the task of guiding the tank through the motor room using a lead line. He testified that a large amount of oil and grease, as much as an inch thick, was on the portion of the motor room floor on which he was required to walk in order to guide the tank, and that the oil and grease adhered to his boots. After the tank was lowered into the hole, Appellant remained on the ground floor passing tools to other Intech employees in the basement. While so engaged, he slipped and fell through the hole approximately sixteen feet to the basement floor, seriously injuring his right knee and ankle. He later opined that the oil and grease that adhered to his boots while he was guiding the tank through the motor room caused his feet to slip out from under him. Gene Holtzman, Commonwealth’s safety administrator, admitted at trial that there was oil and grease on the floor in the area around the hole.

Appellant filed a workers’ compensation claim against Intech. He also brought this civil action in the Hancock Circuit Court against Commonwealth, alleging that his fall was caused by negligent acts or omissions of Commonwealth. Intech intervened in the civil action to assert its statutory subrogation claim, KRS 342.700(1), but voluntarily dismissed its intervening complaint prior to trial.

According to an Agreement as to Compensation dated February 5, 2001, Appellant successfully prosecuted his workers’ compensation claim against Intech to an “opinion and award dated February 27, 1998.” He received $18,240.57 in temporary total disability benefits (TTD) (57 weeks x $320.01 per week) and additional weekly benefits for a 50% permanent partial disability (PPD). Pursuant to KRS 342.020, Intech’s insurer, Underwriters Safety & Claims, also paid medical bills of $15,292.15 incurred by Appellant up to the date of the agreement. The remainder of Appellant’s workers’ compensation claim was settled for a lump sum of $39,956.68, itemized as follows:

$30,456.68 — lump sum payment of 50% PPD award
4,500.00 — buyout of future medical expenses
4,000.00 — waiver of right to reopen
1,000.00 — waiver of vocational rehabilitation
$39,956.68

At the trial of Appellant’s civil action against Commonwealth, Appellant introduced evidence that there were no protective guardrails (“fall prevention”) around the hole and no place to tie off a safety harness (“fall restraint”) normally worn while working in the vicinity of an open floor hole. Appellant asserted that Commonwealth’s violation of occupational safety and health regulations requiring these protections constituted negligence per se and that the jury should be instructed only to determine the degree of Appellant’s fault, if any, and render an apportioned verdict pursuant to KRS 411.182. Instead, the trial court instructed the jury that Commonwealth had a duty to exercise ordinary care to maintain its business premises in a reasonably safe condition. The jury returned a verdict finding both parties at fault and fixing Appellant’s damages at $44,971.02, itemized as follows:

$10,000.00 —• permanent impairment of power to earn money
7,300.00 — past and future pain and suffering
17,671.02 — medical expenses incurred •
10,000.00 — lost wages
$44,971.02

Because the jury also apportioned fault at 75% against Commonwealth and 25% against Appellant, the trial court reduced the judgment to a lump sum of $33,728.27 ($44,971.02 x 0.75). Applying the apportionment to each separate item of damages yields the following itemization:

$ 7,500.00 — permanent impairment
5,475.00 — pain and suffering
13,253.27 — medical expenses
7,500.00 — lost wages
$33,728.27

On appeal to the Court of Appeals, Commonwealth asserted that (1) the trial court should have sustained its motion for a directed verdict because (a) the presence of the hole was open and obvious, and (b) pursuant to its contract with Intech, the latter assumed responsibility for the safety of its own employees; or, in the alternative, (2) the trial court should have vacated those portions of the judgment that duplicated amounts paid to Appellant or his medical providers pursuant to his workers’ compensation claim so as to prevent double recovery. The Court of Appeals held that (1) Appellant’s testimony that his fall was caused by the oil and grease that adhered to his boots while he was guiding the tank through the motor room created a jury issue with respect to Commonwealth’s negligence and causation, rendering it unnecessary to address whether Intech had contractually assumed responsibility to provide guardrails or safety harnesses for its employees; but (2) an owner is not liable for injuries to third parties arising out of work performed by an independent contractor unless the work constitutes a nuisance or is inherently dangerous, and that the work performed by Intech fell into neither of those categories; and (3) even if the work was inherently dangerous, the liability of an owner to employees of an independent contractor is limited to payment of workers’ compensation benefits. See KRS 342.700(2). Since Appellant had already recovered workers’ compensation benefits from Intech, he had no claim against Commonwealth. Having thus disposed of the case, the Court of Appeals did not reach the issue of double recovery.

Appellant moved for discretionary review and Commonwealth filed a cross motion for review solely to preserve the issue of double recovery. Commonwealth, Transp. Cabinet v. Taub, 766 S.W.2d 49, 51-52 (Ky.1988). Since issues pertaining to Commonwealth’s negligence and causation were not preserved for further review, Appellant’s argument that Commonwealth’s alleged violation of administrative regulations adopted pursuant to the Kentucky Occupational Safety and Health Act, KRS 338, constituted negligence per se are moot. We now reverse the Court of Appeals insofar as it vacated Appellant’s judgment in its entirety, and remand this case to the Hancock Circuit Court with directions to determine an appropriate computation of the total credit due to Commonwealth in light of the employer’s/insurer’s failure to assert its right of subrogation and enter an amended judgment in accordance with that computation.

I. LIABILITY OF OWNER FOR INJURIES TO EMPLOYEES OF INDEPENDENT CONTRACTOR.

The Court of Appeals’ reliance on Simmons v. Clark Constr. Co., 426 S.W.2d 930 (Ky.1968), Jennings v. Vincent’s Adm’x, 284 Ky. 614, 145 S.W.2d 537 (1940), and Clemons v. Browning, 715 S.W.2d 245 (Ky.App.1986), for its holding that Commonwealth is not liable for Appellant’s damages because the work performed by In-tech was neither a nuisance nor inherently dangerous was misplaced. Those cases apply only when it is sought to hold an owner vicariously liable for the negligence of an independent contractor. Jennings, 145 S.W.2d at 541. In both Simmons and Clemons, employees of subcontractors were injured because of defective scaffolding erected not by the owner but by the independent general contractor. Simmons, 426 S.W.2d at 931; Clemons, 715 S.W.2d at 246. The fatal explosion in Jennings was caused by the negligence of employees of the independent contractor, not the owner. Jennings, 145 S.W.2d at 539. Here, Commonwealth was not held vicariously liable because of the negligence of Intech’s employees. It was held directly liable because of its own negligence.

In holding that the liability of the owner to the employees of an independent contractor is limited to payment of workers’ compensation benefits, the Court of Appeals relied on language in King v. Shelby Rural Elec. Coop. Corp., 502 S.W.2d 659 (Ky.1973), which, if taken out of context, would seem to support that position, viz:

We can see no reason why appellant, simply because he was an employee of an independent contractor, should be placed in a better position than if he had been an employee of Shelby [owner], in which case his recovery would be limited without question to the benefits provided by the Workmen’s Compensation Act. Conversely, we see no valid reason why Shelby should be subjected to more liability simply because it engaged the services of a qualified independent contractor.

Id. at 663. However, King, like Simmons, Jennings, and Clemons, was a case in which an employee of an independent contractor sought to hold the owner vicariously liable for injuries caused by the contractor’s negligence:

The evidence in the case on behalf of Shelby indicated that it did not exercise any control whatever over the work involved and did not consider itself to have the right of [sic] the duty to do so.
[T]he liability of Shelby for the negligence of the independent contractor does not extend to the employees of the independent contractor.

King, 502 S.W.2d at 664. As subsequently explained in Caskey v. Hammonds Construction, Inc., 536 S.W.2d 449 (Ky.1976), “[t]he opinion [in King ] does not hold that an employee of an independent contractor may not recover from the owner in those instances where the negligence of the owner causes the injury or death of the employee of the independent contractor.” Id. at 451. Caskey held that an owner is liable for injuries sustained by an employee of its independent contractor that were caused by the owner’s own negligence. Id.

Workers’ compensation coverage is a voluntary contract between employer and employee, the terms of which are defined by the provisions of the Act. McNeese Const. Co. v. Harris, 273 S.W.2d 355, 357 (Ky.1954). The employer gives up the right to claim certain defenses, KRS 842.610(1), in exchange for the employee’s agreement to accept limited benefits in lieu of damages at law, KRS 342.690(1). It is the voluntary nature of this statutory contract that renders the Act constitutional. See generally Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648 (1916) (upholding constitutionality of 1916 Kentucky Workmen’s Compensation Act and distinguishing State Journal Co. v. Workmen’s Comp. Bd., 161 Ky. 562, 170 S.W. 1166 (1914), which had held the mandatory 1914 Act unconstitutional). The Court of Appeals’ interpretation of the quoted language in King would give an independently negligent nonparty to this statutory contract the same advantages otherwise afforded only to the injured party’s employer. The trial court properly held Commonwealth liable for damages incurred by Appellant because of Commonwealth’s own negligence.

II. DOUBLE RECOVERY.

KRS 342.700(1) provides:

Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employee may either claim compensation or proceed at law by civil action against the other person to-recover damages, or proceed both against the employer for ■ compensation and the other person to recover damages, but he shall not collect from both. If the injured employee elects to proceed at law by civil action against the other person to recover damages, he shall give due and timely notice to the employer and the special fund of the filing of the action. If compensation is awarded under this chapter, the employer, his insurance carrier, the special fund, and the uninsured employer’s fund, or any of them, having paid the compensation or having become liable therefor, may recover in his or its own name or that of . the injured employee from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and payable to the injured employee, less the employee’s legal fees and expense. The notice of civil action shall conform in all respects to the requirements of KRS 411.188(2).

(Emphasis added.) The statute separately defines the respective rights of the injured employee and the employer/insurer when the employee’s injuries were caused by the negligence of a third party. The employer/insurer “owns” a subrogation right to the amount of compensation it paid to the injured employee, and the employee “owns” the right to any other damages for which the third-party tortfeasor is legally liable. The emphasized language in the statute clearly precludes double recovery by the employee and does not condition that preclusion upon whether the employer actually pursues its subrogation right.

The statute has been a part of our Workers’ Compensation Act since its initial enactment in 1916. See AIK v. Bush, 74 S.W.3d at 254, for a brief statutory history. Shortly after its enactment, our predecessor Court held that the statute allowed the employee to assert claims against both the employer and the third-party tortfeasor, albeit in different forums, but “to the extent he collects from one he may not collect from the other.” Book v. City of Henderson, 176 Ky. 785, 197 S.W. 449, 451 (1917) (emphasis added). See also S. Quarries & Contracting Co. v. Hensley, 813 Ky. 640, 232 S.W.2d 999, 1002 (1950) (“[I]f the employer, having paid compensation, makes no claim against the negligent third party, the latter is entitled to be credited on the judgment rendered against him in favor of an injured employee for such compensation as may have been paid to such employee by the employer.”); Dillman v. John Diebold & Sons Stone Co., 241 Ky. 631, 44 S.W.2d 581, 583 (1931) (“Dillman, the employee of the principal contractor, may maintain his action for damages against appellee, the subcontractor, notwithstanding the fact that he had been paid compensation by the insurer of his immediate employer, subject, however, to appellee’s right in the event of a recovery to have the judgment credited by the compensation so paid.”); Napier v. John P. Gorman Coal Co., 242 Ky. 127, 45 S.W.2d 1064, 1065 (1931) (“The amount of compensation received by the injured employee, or, in the event of fatal injury, by the dependents, must be credited upon the amount recovered from the wrongdoer, and only the excess of the damages over the compensation collected is recoverable.”); Berry v. Irwin, 224 Ky. 565, 6 S.W.2d 705, 706 (1928) (same quote as Southern Quarries); Williams v. Brown, 205 Ky. 74, 265 S.W. 480, 481 (1924) (“The one thing certain from a reading of the section of the statute above quoted is that the injured employee cannot have full compensation and collect money on a judgment for full damages for the same injury. That would be double compensation.”).

In Davis v. Buley, 634 S.W.2d 161 (Ky.App.1982), the Court of Appeals held that “KRS 342.700(1) expresses a clear legislative intent that an injured employee should not be allowed to recover from both the compensation carrier and a third-party tortfeasor.” Id. at 163. See also Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 59 (Ky.App.1986) (“The policy behind KRS 342.700(1) that an injured employee should not recover from both the workers’ compensation carrier and a third-party tortfea-sor has long been recognized by Kentucky courts.”); 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 110.02, at 110-3 (Matthew Bender 2004) (“It is equally elementary that the claimant should not be allowed to keep the entire amount both of his or her compensation award and of the common law damage recovery.”). That is not to say that the employer/insurer could not assign its subrogation rights to the worker, as was done in Weinberg v. Crenshaw, 896 S.W.2d 22 (Ky.App.1995). However, there was no assignment in this case — only a decision by Intech, for whatever reason, to forego its subrogation rights.

In his separate opinion, the Chief Justice would hold that when the employer or carrier entitled to subrogation under KRS 342.700(1) decides not to pursue its subro-gation rights, the common law collateral source rule and/or KRS 411.188(2) assigns those rights to the worker as a matter of law. Post, at 162-68. However, neither KRS 342.700(1) nor KRS 411.188(2) so provides. Both statutes provide only that the failure of the subrogee to assert its rights results in the loss of those rights. Neither provides that those rights are thereby transferred to the subrogor in order to permit double recovery. In Zurich Am. Ins. Co. v. Haile, 882 S.W.2d 681 (Ky.1994), we specifically rejected such an interpretation of KRS 411.188:

Had this case not been settled forthwith under terms excluding the amounts paid by Zurich, dismissing Zurich’s subrogation claim would have resulted, quite possibly, in a windfall verdict for the plaintiff, the very same double recovery which KRS 342.700(1) was written to prevent. We are not inclined or required to interpret the statute [KRS 411.188] to permit such an absurdity.

Id. at 686.

Nor is the common law collateral source rule relevant to this issue.

But it is suggested that, under the common law, appellee would have been entitled to recover for the combined results of the disease and the accident, and that many compensation acts have been construed as having the same effect. The act supersedes the common law and creates a different standard of rights and obligations covering the entire field of personal injury as defined in the act. It provides for compensation and not for damages, and common-law principles fixing the measure of damages for injuries caused by negligence are no longer applicable or controlling.

Robinson-Pettet Co. v. Workmen’s Comp. Bd., 201 Ky. 719, 258 S.W. 318, 319-20 (1924). See also Evansville Printing Corp. v. Sugg, 817 S.W.2d 455, 457 (Ky.App.1991) (Workers’ Compensation Act evidences legislative policy and supersedes common law).

In denying double recovery to the worker, KRS 342.700(1) operates similarly as KRS 304.39-060(2)(a), which abolishes tort recovery by a person injured in an automobile accident who has not rejected the provisions of the Motor Vehicle Reparations Act for amounts paid or payable in reparations benefits.

The effect of this statute is to abolish the claims for lost wages and medical expenses of a person injured in an automobile accident against the person who caused the injury to the extent that basic reparations are payable therefor. The injured person can assert a claim only for those damages which exceeded the amounts payable as basic reparation benefits. If it elects to do so, the basic reparations obligor may intervene as the real party in interest to recover the sums payable by it as reparation benefits.

Carta v. Dale, 718 S.W.2d 126, 128 (Ky.1986) (emphasis added) (internal citations omitted). See also Ohio Cas. Ins. Co. v. Ruschell, 834 S.W.2d 166, 168 (Ky.1992) (claimant has no tort claim whatsoever for those elements of damages paid or payable under the no-fault statute).

Any windfall obtained by Commonwealth from Intech’s decision to forego its subrogation rights is no different than if Intech had never filed its intervening complaint in this action. Either way, KRS 342.700(1) precludes Appellant from recovering from Commonwealth those elements of damages that he had already recovered from Intech by way of workers’ compensation benefits.

Accordingly, we reverse the Court of Appeals insofar as it vacates the entire judgment against Commonwealth, but we remand this cause to the circuit court for an appropriate computation of the total credit due to Commonwealth in light of the employer’s/insurer’s failure to assert its right of subrogation and to enter an amended judgment in accordance with that computation. Upon remand, the parties may be heard and evidence taken, if necessary, as to the proper determination of the aforementioned credit.

GRAVES, J., concurs.

LAMBERT, C.J., concurs in part and dissents in part by separate opinion, with SCOTT, and WINTERSHEIMER, JJ., joining that dissenting opinion.

COOPER, J., concurs in part and dissents in part by separate opinion, with JOHNSTONE, and ROACH, JJ., joining that opinion.

SCOTT, J., concurs in part and dissents in part by separate opinion, with LAMBERT, C.J., and WINTERSHEIMER, J., joining that opinion.

LAMBERT, J.,

concurring in part and dissenting in Part.

I agree with the majority’s analysis and conclusion that the jury verdict must be reinstated. However, this same analysis compels a result in opposition to the one the majority has reached on the issue of double recovery.

The following excerpt from the majority opinion explains why Commonwealth may not invoke provisions of the Workers’ Compensation Act to receive a windfall:

Workers’ compensation coverage is a voluntary contract between employer and employee, the terms of which are defined by the provisions of the Act. The employer gives up the right to claim certain defenses, in exchange for the employee’s agreement to accept limited benefits in lieu of damages at law. It is the voluntary nature of this statutory contract that renders the Act constitutional.

Despite the foregoing accurate statement of the law, the majority perplexingly proceeds to rely on one of the Act’s provisions to protect a party not covered by the Act, the tortfeasor, Commonwealth. As a result of this faulty application of the Act, the majority reduces the jury’s damages award and gives the negligent nonparty the same advantage that the Act affords, solely, to the injured party’s employer.

There is no question that the relationship between the employer (Intech) and the employee (Krahwinkel) is governed by the Workers’ Compensation Act. As the majority recognizes, it is the voluntary nature of the contract that renders the Workers’ Compensation Act constitutional. The limitation on the employee’s recovery can only be invoked by the employer or another entity whose liability arises by virtue of the contract for workers’ compensation coverage.

Krahwinkel and Intech were the parties to the contract giving rise to the Act’s application; thus, their relationship is governed by the Act’s provisions. Accordingly, if Intech had chosen to remain a party in the litigation, the Workers’ Compensation Act would have governed the right of recovery between Krahwinkel and Intech via the third party tortfeasor, Commonwealth. However, absent any dispute as to rights or remedies between Krahwinkel and Intech, no contract giving rise to the Act’s application is implicated. Once this court determined that Commonwealth’s status was that of an independent tortfea-sor, rather than an employer, the Workers’ Compensation Act became irrelevant to Krahwinkel’s common law claim against Commonwealth.

Essentially, the majority is allowing Commonwealth to enforce a workers’ compensation agreement against Krahwinkel, even though it is not a party or beneficiary of that agreement. Under Kentucky law, before a third person who is not a party to a contract can derive benefit from that contract, the third person must show that the contract was made and entered into directly or primarily for the benefit of the third person. An employer and employee who choose to enter into a workers’ compensation coverage agreement do so for their own benefit, not for the benefit of a negligent third party. There is no suggestion that Commonwealth was intended to be a third-party beneficiary of the workers’ compensation contract. A person who is neither a party nor a third-party beneficiary of a contract, may not enforce it. Accordingly, Commonwealth may not invoke provisions of the Workers’ Compensation Act or benefit from it in the instant case.

The common law, rather than the Workers’ Compensation Act, governs Krahwink-el’s claim against Commonwealth. The common law rule, known as the collateral source rule, states “that it is the tortfea-sor’s responsibility to compensate for. all harm that he causes, not confined to the net loss that the injured party receives.” Long followed in Kentucky, the collateral source rule allows an injured plaintiff to seek sufficient damages to make him whole without regard to payments made to the injured party by someone other than the tortfeasor.

Moreover, even if, as the majority contends, KRS 342.700(1) is controlling, the same result obtains from an in-depth analysis of the entirety of the statute. The majority has failed to read the statute as a whole and focuses instead on the first sentence to the exclusion of the remainder. The outcome of the majority decision is to grant a windfall to the wrong party, i.e., the tortfeasor who inflicted the harm instead of the injured worker. As a matter of policy, wrongful conduct should not be rewarded.

The statute at issue, KRS 342.700(1) is an inartful attempt to codify the well-settled common-law principle that a tortfea-sor should not be relieved of a duty to compensate for harm inflicted because the injured party has already received payment from another source. What the statute attempts to do is provide that a covered workers’ compensation employee injured by the negligence of a third party have a workers compensation claim and a common law civil action against the negligent third party. It mandates that the employer or its insurance carrier be given notice of the third party claim and authorized to intervene for the purpose of asserting its subrogation right. That procedure was followed here. However, during the litigation, for reasons that are unknown, the employer decided to forgo its subrogation right, thus giving up its right to obtain reimbursement from the negligent third party. Astonishingly, the majority concludes that this election to forego inures to the benefit of the sole wrongdoer and not to the injured worker. I see it differently.

By a reasonable interpretation of the entirety of the statute, KRS 342.700(1) protects the Workers’ Compensation carrier’s subrogation rights, but in the event the carrier does not pursue its subrogation rights, the statute grants no protection to the tortfeasor. I recognize that the statute says the plaintiff cannot recover twice for the same injury, but it does so as a means to protect the subrogation rights of the carrier. The statute was not intended to apply in a similarly restrictive way when the earner does not assert its rights because the purpose for which the statute was enacted — to protect the carrier’s right to reimbursement — is no longer present. In that event the statute allows the injured worker to recover fully from the tortfeasor even though he has received collateral payment. This is so because the tortfeasor is required to pay for the consequences of its wrongful conduct.

The statute itself allows the injured worker to receive payment from the tort-feasor for two reasons. First, the third sentence of KRS 342.700(1) uses permissive language, stating that the carrier “may recover,” but it does not disclose what happens in the event that the carrier fails to pursue its right to recover. Second, the final sentence of the statute requires notice in accordance with KRS 411.188(2). KRS 411.188(2) states that a plaintiff must notify all parties it believes to hold subrogation rights, and such notification “shall state that a failure to assert subrogation rights by intervention ... will result in a loss of those rights with respect to any final award received by the plaintiff as a result of the action.” Thus, as applicable, KRS 342.700 incorporates the provisions of KRS 411.188(2) which answers the question of what shall happen when a party holding subrogation rights fails to assert or pursue those rights. The majority opinion is deeply flawed because it seizes on a single clause in a complex statute that incorporates another statute and fails to give effect to the whole of the statutes except for the clause it prefers. Not only is the conclusion of the majority not required by the statute, it is contrary to proper statutory construction because it fails to give effect to the entire statute.

Finally, KRS 446.080 mandates that courts interpret all statutes liberally to effect the intent of the general assembly. We have consistently recognized this: “The general assembly has directed that all statutes be construed in a manner that furthers the objectives for which the statute was enacted.” Clearly KRS 342.700(1) is for the benefit of employers or their workers compensation carriers to permit them to recover sums the law requires them to pay as a result of the fault of a third party. Its purpose is to make whole the workers’ compensation carrier by reimbursing it and imposing the actual cost on the actual tortfeasor for the tort-feasor’s share of the workers’ compensation benefit paid. The entire premise of the Workers Compensation Act is to protect employees by ensuring immediate payment for injuries sustained while in the course and scope of employment. Though its purpose is to guarantee payment without considerations of the fault of the employer, it does not circumscribe an injured worker’s legitimate tort claim against a third-party tortfeasor.

Here the majority reaches an unreasonable result by turning the statute on its head and allows the wrongdoer a windfall. No statute should be construed to reach an absurd conclusion. Statutes should be given a practical construction to carry out their manifest purposes.

The proper result in this case would be for the injured party and not the party who inflicted the injury to receive the benefit. Accordingly, I would reinstate the jury verdict entirely.

SCOTT and WINTERSHEIMER, JJ„ join this dissenting opinion.

COOPER, Justice,

concurring in Part and dissenting in Part.

I concur with the modified majority opinion except insofar as it remands the case to the Hancock Circuit Court with directions to compute the amounts that must be deducted from the judgment in order to preclude a double recovery by Appellant. The modified majority opinion cites no authority for this unnecessary procedure. Appellant, in his Petition for Rehearing, cited only Whittaker v. Hardin, 32 S.W.3d 497 (Ky.2000), and Mastin v. Liberal Markets, 674 S.W.2d 7 (Ky.1984), both of which hold that the plaintiff is entitled to have a trier of fact allocate elements of damages that should be credited. Whittaker, 32 S.W.3d at 498; Mastin, 674 S.W.2d at 14.

Whittaker was an appeal from a workers’ compensation case in which the employer/insurer sought credit for amounts received by the claimant in settlement of a civil action against the third-party tortfea-sor. The claimant had received a lump sum settlement with no allocation to specific categories of damages. Whittaker, 32 S.W.3d at 498. Thus, no independent fact-finder had ever determined how much of the lump sum tort settlement corresponded with the amounts and categories of benefits awarded in the workers’ compensation claim. Whittaker held that an Administrative Law Judge had jurisdiction to make those findings under KRS 342.325. Id. at 499. Mastin was an appeal from a circuit court order denying enforcement of a workers’ compensation award. Mastin, 674 S.W.2d at 8-9. See KRS 342.305. The claimant had settled her tort action against one of the third-party tortfeasors pursuant to a-settlement agreement that allocated damages by categories, but allocated most of the damages to pain and suffering, Mastin, 674 S.W.2d at 9, a category for which there is no corresponding workers’ compensation recovery.

The preclusion against double recovery applies only insofar as a category of damages recovered in the tort settlement duplicates a category of benefits awarded in the workers’ compensation award or settlement. Id. at 12-14; Hillman v. Am. Mut. Liab. Ins. Co., 631 S.W.2d 848, 850 (Ky.1982). In Mastín, the employer was not a party to the tort settlement, thus had not concurred in the allocation of damages. Mastín held that the employer was entitled to have an independent factfinder hear evidence and allocate the damages in order to determine the amount creditable against the workers’ compensation award. Mastin, 674 S.W.2d at 14. Mastin also agreed with the claimant’s argument that the tort settlement might represent less than her actual damages as determined by an independent factfinder, and that if the factfinder found that the settlement represented’less than her actual damages, the employer/insurer was entitled to a credit only against its proportional share of the total damages. Id. at 13. Mastin remanded the case to the circuit court to hear evidence, make appropriate findings of fact, and apply those facts to the legal principles set forth in the opinion. Id. at 15.

Here, except for one item in the settlement that might allow Commonwealth an additional credit (see note 3, infra),- we already know exactly how much Appellant was paid in workers’ compensation benefits and the categories of those payments. We also know exactly how much Appellant was awarded in his judgment against Commonwealth and the categories of those damages. Whether a category of workers’ compensation benefits corresponds to a category of damages awarded in a judgment is a question of law, not fact; thus, a remand to the circuit court for additional findings of fact is unnecessary in this case. In the interest of judicial economy, we can and should determine now what categories of workers’ compensation benefits received should be credited against the judgment and perform the simple task of subtraction ourselves, thus avoiding yet another round of expensive and time-consuming appeals. That is precisely what we did in AIK Selective Self Insurance Fund v. Bush, 74 S.W.3d 251 (Ky.2002), with respect to amounts that were known to have been received and paid. Id. at 258. We only remanded to the circuit court the task of allocating credits with respect to amounts that were unknown or might not have been paid — thus required the production of additional evidence. Id. Here, both the eate-gories of damages in the tort judgment and the categories of benefits awarded by the workers’ compensation board have already been determined by an independent factfinder — the jury with respect to the judgment and the ALJ with respect to the workers’ compensation award. There are no unknown amounts or categories requiring additional findings of fact, thus no reason for a remand.

The amounts to be credited against the judgment aré, of course, subject to the 75% limit required by the jury’s comparative fault finding. AIK v. Bush, 74 S.W.3d at 253-55; U.S. Fid. & Guar. Co. v. Fox, 872 S.W.2d 91, 93-94 (Ky.App.1993). Applying the principles set forth in those cases and in Mastin and Hillman, the entire judgment for permanent impairment ($7,500.00) must be vacated because it is duplicated in its entirety by 75% of the workers’ compensation payments for permanent partial disability benefits ($30,-456.68 X 0.75 = $22,842.51); and the entire judgment for lost wages ($7,500.00) must be vacated because it is duplicated in its entirety by 75% of the workers’ compensation payments for temporary total disability benefits ($18,240.57 X 0.75 = $13,680.43). Hillman, 631 S.W.2d at 850; Fox, 872 S.W.2d at 93-94. The entire judgment for medical expenses ($13,-253.27) must be reduced by 75% of the workers’ compensation payments paid for medical expenses ($15,292.15 X 0.75 = $11,469.11), leaving a judgment for medical expenses in the amount of $1,784.16. AIK, 74 S.W.3d at 258. There can be no reduction of the $7,300.00 judgment for pain and suffering because that item of damages is not covered by workers’ compensation. Hillman, 631 S.W.2d at 850. Nor can there be any reduction of the judgment because of the additional sums paid to Appellant for waivers of future medical expenses, the right to reopen, and vocational rehabilitation, since none of those items were included in the judgment.

Accordingly, I would not remand this case to the Hancock Circuit Court but would simply vacate those portions of the judgment that duplicate workers’ compensation payments received, leaving a total judgment of $9,084.16, plus costs and interest.

JOHNSTONE, and ROACH, JJ., join this opinion.

SCOTT, Justice,

concurring in part and dissenting in part.

I concur with the majority on the issue of liability, and with the modifications to the Opinion to the extent it recognizes the trial court’s right to make the initial “credit decision.” I disagree and dissent however, on the Appellees’ right to any offset of the Workers’ Compensation settlement amounts. I also join Chief Justice Lam-berts’ dissent.

In dissenting, I would ask how would an assignment of an employer/insurer’s “sub-rogation rights” to the Appellant make any difference in this instance (as suggested), since the logic of the majority opinion gives pre-eminence to the language of KRS 342.700(1), which states “[b]ut, he shall not collect from both,” and then allows the defendant/obligor to “offset” the items subject to subrogation — since they weren’t claimed by the subrogor (pursuant to the compensation settlement). This logic totally ignores the very next part of KRS 342.700(1), which gives the right to prevent any “double recovery’’ to the specific entities named therein who “[p]aid the compensation, or having become liable therefore, may recover it.” Under no stretch of the imagination is the Appellee one of the named entities. Moreover, there was a settlement agreement in this case, between the Appellant and the employer (through its compensation carrier), which clearly envisioned that the Appellant would get the benefits of the subrogation items, even though no specific written assignment was prepared or executed.

The civil courts and administrative tribunals of this Commonwealth depend on “settlements” as much to manage and alleviate their dockets as do our criminal courts on “plea bargains.” Undue interference with these mechanisms depletes our resources and ultimately redounds to the detriment of our citizens. The settlement between the Appellant and the employer/insurer met the settlement goals set by each and was acceptable to the Board; that is until this “stumbling block.”

As pointed out by Appellant’s counsel at oral arguments — had the majority opinion been law at the time — there would have been no settlement to start with! This is the wrong way to go to get to the right place.

I just dissent.

LAMBERT, C.J., and WINTERSHEIMER, J. joins this opinion.

      . KRS 342.730(1)(a).

      . January 25—March 21, 1996 (8 weeks); January 3 — August 31, 1997 (342Aths weeks); July 20 — October 31, 2000 (14 s/7ths weeks).

      .KRS 342.730(1)(b).

      . Commonwealth, did not file a third-party complaint against Intech for contribution. Compare AIK Selective Self Ins. Fund v. Bush, 74 S.W.3d 251, 252 (Ky.2002); Dix & Assocs. Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 29 (Ky.1990).

      . Commonwealth does not claim that it is an "up-the-ladder'' employer of Appellant. KRS 342.690(1); KRS 342.610(2)(b). The installation of the fluid capture system was not a "regular or recurrent” part of Commonwealth's business, trade or occupation. KRS 342.610(2)(b); Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 462 (Ky.1986). Compare Gesler v. Ford Motor Co., 185 F.Supp.2d 724, 728 (W.D.Ky.2001) (demolition and removal of automobile body anti-corrosion system so that new system could be installed in its place was not a regular or recurrent part of automobile manufacturer's business), with Sharp v. Ford Motor Co., 66 F.Supp.2d 867, 869-70 (W.D.Ky.1998) (loading and unloading manufactured vehicles was a regular or recurrent part of automobile manufacturer's business).

      . The employer/insurer might conclude that its subrogation right is not worth pursuing in view of the fact that the statute requires that the employee’s legal fees and expenses be deducted from the amount recovered by the employer/insurer. See AIK v. Bush, 74 S.W.3d at 258.

      . Long v. Reiss, 290 Ky. 198, 160 S.W.2d 668 (1942)

      . Sexton v. Taylor County, 692 S.W.2d 808 (Ky.App.1985).

      . Rest.2d Torts s. 920 (1979).

      . Louisville & Nashville RR Co. v. Corothers, 65 S.W. 833, 834 (Ky.1901); Barr. v. Searcy, 280 Ky. 535, 133 S.W.2d 714, 715 (1939).

      . See Baptist Healthcare Sys. v. Miller, 177 S.W.3d 676 (Ky 2005); Schwartz v. Hasty, 175 S.W.3d 621 (Ky.2005).

      . KRS 446.080(1); Bryant v. Jericol Mining, Inc., 758 S.W.2d 45 (Ky.App.1988).

      . Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 787 (Ky.2004); Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152 (1918) ("The spirit of the law, and not the letter, should control its construction, and the object to be accomplished should be considered.”).

      . Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (Ky.1942); see also Bird v. Bd. Of Comm’rs of Kenton County, 95 Ky. 195, 24 S.W. 118 (1893) (Particular words found in a statute, which, if literally followed, lead to an absurdity or defeat the manifest intent of the legislature as gathered from the entire act, may be disregarded in its interpretation).

      . Such often occurs when the plaintiff settles for the tortfeasor’s liability insurance policy limits which are less than the plaintiffs actual damages.

      . One of those legal principles was that the employer/insurer was not entitled to credit for the workers' compensation attorney fee that it commuted from the "back end” of the award and paid to the claimant’s attorney pursuant to KRS 342.320(2). Mastin, 674 S.W.2d at 12. Since the employer/insurer in this case could not have recovered the attorney fee, if any, paid to Appellant’s workers’ compensation attorney, any such payment would play no role in determining credits in this case.

      . The record does not reflect whether the remaining $1,784.16 in medical expenses were included in the $4,500.00 buyout of future medical expenses. (Plaintiffs exhibit no. 1, which apparently contained an itemization of medical expenses, is not in the record on appeal. This is the only possible issue that might be resolved on remand. However, if Commonwealth believed it was entitled to a credit for this item, it could have supplemented the record on appeal with that information. It chose not to do so. By remanding this case, the modified majority opinion gives Commonwealth a second bite at the apple on this issue.)