Personal Injury Awards
INDIANA: Beckley v. Beckley, 822 N.E.2d 158 (Ind. 2005).
The trial court erred by holding that a FELA award is divisible property where any portion of it is for pain and suffering and not for lost postdivorce wages. Even though Indiana does not recognize the concept of separate property, compensation for postdivorce wages still cannot be divided. Even if only part of the award is compensation for lost postdivorce wages, that part must still be measured and excluded. But the burden of proving the lost postdivorce wages component of the award is on the owning spouse. Where the husband failed to carry that burden, the entire award was subject to division. The trial court's error of law was therefore harmless on the facts.
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FLORIDA: Bollaci v. Neiporte-Bollaci, 863 So. 2d 440 (Fla. Dist. Ct. App. 2003).
Where the record contained no evidence establishing the various elements of damages included in the husband's personal injury award, the trial court erred by treating the award as entirely marital property. The case was remanded so that better proof could be introduced to establish the elements of damages. Damages for lost marital wages and earning capacity, plus medical expenses paid with marital funds, should be treated as marital property. Damages for losses due to be suffered after the divorce, such as lost future wages, should be treated as separate property.
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PENNSYLVANIA: Diament v. Diament, 816 A.2d 256 (Pa. Super. Ct. 2003).
The wife's malpractice cause of action against her mental health provider accrued when the wife first knew or should have known of the provider's negligence. Since that time occurred after separation, the proceeds of the cause of action were not marital property. The husband's payment of the wife's medical expenses was support, not a predistribution of marital assets.
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MISSISSIPPI: Langdon v. Langdon, 854 So. 2d 485 (Miss. Ct. App. 2003).
The trial court did not err in dividing a personal injury settlement. Where the settlement is an unallocated sum, the court must determine the extent to which the settlement was intended to address various types of damages. On the facts, the trial court properly found that the marital estate had suffered no injuries, so that the settlement was entirely separate property. A lot purchased on credit, using a separate property gift as security, was separate property, where no payments on the property were made with marital funds.
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