A recent trial in Park City resulted in a $640,000+ verdict for the plaintiff. Robert Pilot v. Earl Hill, #140500187 (Hon. Kara Petit, Silver Summit). See my blog entry for June 12th.

Unfortunately for the plaintiff, the case was pleaded as a Tier 2 claim– damages under $300,000, per Rule 26(c)(3). Rule 8(a) says that any damages in excess of the tier cap are waived, unless the pleading is amended under Rule 15. So can’t the plaintiff now go back and amend the complaint to conform to the evidence at trial; that is, to get the awarded damages above $300,000?

Likely not- the Rules Committee (of which I was member) considered this issue when we were writing these new rules. Some wanted a bar on arguing for damages in excess of the tier cap. But we decided that a plaintiff could argue for damages in excess of the tier limits to the jury, as after all, people ask for more than they want, and juries often award only a portion of the requested amount. However, we also concluded that the tier limits would be meaningless if a plaintiff could request minimal discovery under Tier 1 or Tier 2, ask for a verdict in excess of the tier cap, and then just amend under Rule 15 to recoup the full amount.

The Advisory Committee note to Rule 8(a) states: “It would be unfair for a party to plead a smaller amount of damages in order to take advantage of the streamlined discovery and then seek to recover greater damages. Thus, Rule 8 provides that a party waives its right to recover damages in excess of the maximums provided for that tier unless the pleading is amended. The trial court may determine if the amendment requires further discovery.” The idea is that a tier level may be amended before trial, during discovery, if the case proves to more complicated than originally thought. But the tier level can’t be amended after verdict.

The FAQs of the Rules Committee also addressed this specific issue in one of its opinions. The Rules Committee’s opinion reiterates that it would be improper to allow a tier amendment post-verdict to reflect a verdict in excess of the tier limit. That opinion is not binding on any court, but it does reflect the sense of the Committee.

This motion to amend is presently pending before Judge Kara Pettit in Silver Summit. If the court rules as the Committee intended, that’s a $340,000 “owie” for the plaintiff. 

BTW, I have never seen the sense in pleading anything as a Tier 2 case (50K- 300K). Tier 1, yes, for minor small-damage fender-benders or small commercial matters– anything else should be pleaded as Tier 3. The minor gains in limiting discovery under Tier 2 aren’t worth the downside of the damage cap.

UPDATE: The motion to amend is set for hearing on July 20th at 1:30 p.m. before Judge Petit.

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