FSM SUPREME COURT TRIAL DIVISION
Cite as Mathebei v. Ting Hong Oceanic Enterprises,
9 FSM Intrm. 23 (Yap 1999)

[9 FSM Intrm. 23]

RICHARDO MATHEBEI,
Plaintiff,     

vs.

TING HONG OCEANIC ENTERPRISES CO.,
LTD. and PAUL TAPANG,
Defendants.

CIVIL ACTION NO. 1996-3005

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Evidentiary Hearing:  December 17, 1998
Decided:  February 19, 1999

APPEARANCES:
     For the Plaintiff:     Mariano W. Carlos, Esq.
                                     P.O. Box 272
                                     Koror, Palau PW 96940

     For the Defendant:     Paul Tapang, pro se
            (Tapang)               Yap FM 96943

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HEADNOTES
Civil Procedure ) Admissions
     Under Rule 36(a), if a party to whom requests for admission are directed fails to answer the requests within 30 days after service, the matter that is the subject of the requests is deemed admitted.  It is irrelevant that if the request sought admission of so-called ultimate facts.  Rule 36(a) neither expressly nor implicitly excepts such facts from its requirements.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 25 (Yap 1999).

Judgments ) Default Judgments
     If, in order to enable the court to enter a default judgment, it is necessary to determine the amount of damages by evidence the court may conduct such evidentiary hearings as it deems necessary and proper.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 25 (Yap 1999).

Torts ) Damages
     Awarding damages for pain and suffering does not present a facile endeavor, since this is a matter committed to the discretion of the court, and there are no established rules for making such an award.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 26 (Yap 1999).

[9 FSM Intrm. 24]

Torts ) Damages
     The measure of damages for impairment of earning capacity is the difference between the amount which the plaintiff was capable of earning before the injury and the amount which he or she is capable of earning thereafter.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 26 (Yap 1999).

Torts ) Damages
     Where the effect of an injury continues over time, earnings impairment will have two components: the loss sustained from the time of injury until time of trial, designated "loss of time" or lost wages, and the prospective loss that plaintiff will experience after trial due to the injury's on-going impact.  The plaintiff has the burden of proof with respect to impairment, which must be demonstrated with a reasonable degree of certainty; however, proof of impairment of earning capacity does not require the specificity necessary to establish lost prospective wages.Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 26 (Yap 1999).

Torts ) Damages
     A plaintiff must introduce evidence of his or her earning capacity prior to the injury.  Even if there is no evidence of the extent of future loss, evidence of prior earnings warrants recovery for the impairment of future earning capacity which the injury would generally cause.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 27 (Yap 1999).

Torts ) Damages
     A plaintiff's education or lack of education may be considered in determining the amount of damages sustained by diminished earning capacity where the plaintiff has been engaged in manual labor and is incapacitated from doing that type of work.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 27 (Yap 1999).

Torts ) Damages
     Damages for reduction of future earning capacity are not for the wages themselves, but for the loss of the ability to earn money.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 27 (Yap 1999).

Torts ) Damages
     Limitation of employment opportunities resulting from lack of education is a specific factor which a court may consider in awarding damages for reduced earning capacity.  Mathebei v. Ting Hong Oceanic Enterprises, 9 FSM Intrm. 23, 27 (Yap 1999).
*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
     This matter was set for trial on December 17, 1998.  Defendant Ting Hong Oceanic Enterprises Co., Ltd. ("Ting Hong") did not appear.

     By previous order dated August 3, 1998, the court had granted the motion of the Law Offices of Saimon & Associates to withdraw as counsel for Ting Hong, conditioned upon their giving notice of the withdrawal to their client.  Notice by counsel was to include a copy of the order granting the withdrawal.  That order gave Ting Hong until September 15, 1998, to obtain substitute counsel.  The court independently sent a copy of the order by registered mail to Ting Hong's business address in

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Taiwan.  The receipt, bearing what appear to be various Chinese markings, was thereafter received back by the court.

     No notice of appearance by new counsel was filed by September 15, 1998, the deadline provided in the August 3, 1998, order.

     Subsequently, on September 30, 1998, the court set this matter for trial, and sent a notice of trial setting by registered mail to Ting Hong's office in Taiwan. The court also sent a copy of the notice by registered mail to Randall Cunliffe at the Guam law firm of Cunliffe & Cook.  Randall Cunliffe, per the affidavit of Andrew Clayton filed with the court on September 7, 1998, is an attorney for Ting Hong.  The affidavit was filed to demonstrate withdrawing counsel's compliance with the notice requirement of the August 3, 1998, order.

     As of the time set for trial on Thursday, December 17, 1998, at 9:00 a.m., the court had not received back the registered mail receipt for the notice of trial setting.  The court did receive back a signed receipt showing delivery of the notice of trial setting to Cunliffe & Cook.  The court deems Cunliffe & Cook to be Ting Hong's agent for purposes of service of the notice.

     Plaintiff appeared with counsel at the time designated for trial.  Defendant Paul Tapang, who was not represented by counsel, also appeared.  After presenting testimony, plaintiff sought judgment against defendant Ting Hong, but did not request judgment against defendant Tapang.

     In light of its failure to appear, the court enters a default judgment against Ting Hong pursuant to Rule 55 of the FSM Rules of Civil Procedure.

     Additionally, the court notes that Ting Hong apparently failed to respond to both Plaintiff's First Set of Request [sic] for Admission to Defendant Ting Hong, filed June 18, 1997, and Plaintiff's Second Set of Request [sic] for Admission, filed on May 3, 1998.  Rule 36(a) of the FSM Rules of Civil Procedure provides that if a party to whom requests for admission are directed fails to answer the requests within 30 days after service, the matter that is the subject of the requests is deemed admitted.  Plaintiff's second set of requests for admission include admissions directed to both ultimate facts and issues.  The last request is an admission of liability itself.  It is "irrelevant that plaintiff's request sought admission on so-called `ultimate facts.'  Rule 36(a) neither expressly nor implicitly excepts such facts from its requirements."  City of Rome v. United States, 450 F. Supp. 378 (D.D.C. 1978).  In any event, since Ting Hong did not appear for trial, the issue remaining for determination was that of damages.

     Since plaintiff is seeking general damages against Ting Hong ) as opposed to damages in a sum certain ) resulting from a personal injury he suffered while in Ting Hong's employ, the court treats all of the matter presented at the time set for trial as an evidentiary hearing under Rule 55(b)(2), which provides that "[i]f, in order to enable the court to enter judgment, it is necessary to . . . determine the amount of damages . . . by evidence . . ., the court may conduct such hearings . . . as it deems necessary and proper."

DAMAGES
     Plaintiff suffered a substantial injury on July 23, 1994, when his foot became lodged in the teeth of defendant's ice crushing machine.  He went into shock, and beyond remembering that he was in pain, he has no memory of how his foot was extracted from the machine or how he got to the hospital.  Plaintiff was left with a crushed left foot involving compound fractures, leaving exposed broken bones. He spent one month and six days in the Yap hospital, and now has a cross union between two of his toes which cannot be surgically corrected, and will remain a permanent condition.  According to

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testimony from his doctor at the hearing, this means that he will continue to experience difficulties with his foot.

     Upon discharge from the hospital he could tolerate the pain, but was not able to return to work and do the things he normally would do.  From after the injury until sometime in 1995, he could not work.  At a point in 1995 he started looking for a job but could not find one.  In 1996 he found a job at Waab Transportation stevedoring, but lasted only a few days, as he could not lift copra sacks.  He returned to home in Fais to help his family.

     Presently, plaintiff cannot lift heavy things, and cannot climb coconut trees.  He experiences severe pain and swelling on occasion.  He feels that his foot has not completely healed as on two occasions his foot has opened up, emitting foul smelling fluids.  On those occasions he has taken antibiotics which he obtained from the Fais dispensary.  Plaintiff believes that he is very much handicapped because he can no longer do things that he was able to do before his injury.

     Plaintiff's damage claim has three elements.  He seeks damages for pain and suffering, lost earnings from the time of injury in 1994 until the time of trial, and impairment of future earning capacity.

A.  Pain and Suffering
     Awarding damages for pain and suffering does not present a facile endeavor, since this is a matter committed to the discretion of the court, and there are no established rules for making such an award.  Primo v. Refalopei, 7 FSM Intrm. 423, 434 (Pon. 1996).  However, this case admits of a comparison, in that there is another reported case in the FSM where plaintiff's foot was injured in an ice crushing machine operated by defendant.  In Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 63 (Chk. 1997), plaintiff suffered a partial loss of his foot as a result of a similar accident.  Plaintiff in Fabian was able to walk after he had recovered from the accident, although limited when it came to walking distances.

     In Fabian, there was no express testimony on the point of plaintiff's pain, and the court awarded total damages for pain and suffering on the basis of surrounding circumstances, including disfigurement, in the sum of $30,000, although that amount was reduced by forty percent as a result of plaintiff's negligence.  Id. at 66.  Here, there was ample evidence that defendant suffered extreme pain at the time of the accident and immediately thereafter.  He testified that he still continues to suffer frequent bouts of pain.  Considering all the circumstances, the court awards $25,000 for pain and suffering in this case.

B.  Diminution in Earning Capacity
     Plaintiff also seeks damages for lost wages and impairment of earning capacity.  "The measure of damages for impairment of earning capacity is the difference between the amount which the plaintiff was capable of earning before the injury and the amount which he or she is capable of earning thereafter." 1 Jacob A. Stein, Stein on Personal Injury Damages 4:9, at 155 (1991) (footnote omitted).  Where the effect of an injury continues over time, earnings impairment will have two components: the loss sustained from the time of injury until time of trial, designated "loss of time" or lost wages, and the prospective loss that plaintiff will experience after trial due to the on-going impact of the injury.  Id. 4:9, at 157.  The plaintiff has the burden of proof with respect to impairment, which must be demonstrated with a reasonable degree of certainty; however, proof of impairment of earning capacity does not require the specificity necessary to establish lost prospective wages.  Id. 4:10, at 160.  Further,

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[a]s a broad rule, any competent evidence is admissible which tends to prove the plaintiff's earning capacity, such as evidence of the nature of the injury which has interfered with that earning capacity, the duration of the injury, and the value of the earning capacity before and after the injury.  . . .

Ordinarily, the plaintiff must introduce evidence of his or her earning capacity prior to the injury.  Even if there is no evidence of the extent of future loss, evidence of prior earnings warrants recovery for the impairment of future earning capacity which the injury would generally cause.

. . . The plaintiff's education or lack of education may be considered in determining the amount of damages sustained by diminished earning capacity where the plaintiff has been engaged in manual labor and is incapacitated from doing that type of work.

Id. at 160-61.

     The court concludes that plaintiff presented adequate evidence for the court to award damages for both "lost time," or lost wages, and loss of future earning capacity.  Plaintiff was making $1.10 per hour at the time of his injury, which translates to $176 a month, or $2,112 annually.  As of the time of trial, according to plaintiff's calculations, plaintiff had lost four years and four months of income, for a total of $9,152.  He had attempted to return to work at a stevedoring job in 1996, but was unable to continue with that job because of his inability to lift heavy items.  As of the time of trial, he was still unable to engage in heavy lifting or to climb coconut trees.  For plaintiff's "lost time" or lost wages damages, i.e., the lost wages from the time of the accident until trial, the court awards the full amount claimed of $9,152.

     With respect to diminution of future earning capacity, neither this nor any other court can divine the future.  However, as noted above, "[e]ven if there is no evidence of the extent of future loss, evidence of prior earnings warrants recovery for the impairment of future earning capacity which the injury would generally cause."  Id. 4:10, at 161.  At the same time, however, damages for reduction of future earning capacity are not for the wages themselves, but for the loss of the ability to earn money.  22 Am. Jur. 2d Damages 185 (1988).

     Plaintiff believes that his earning capacity is diminished by half.  As a measure of his damages, he looks to the fact that his annual wage before the accident was $2,112 per annum.  Since he is now 21 years of age, he calculates that he has 44 years of working life ahead of him, and concludes that an appropriate measure of his reduction in earning capacity is 44 times half his annual pre-accident wage, or $46,464.

     Plaintiff's counsel cited the lack of availability of expert witnesses in Micronesia to address the subject of impaired earning ability as an obstacle in making plaintiff's case on this point.  Nevertheless, based on the evidence presented, the court is satisfied that plaintiff's earning capacity has been diminished by one half as he testified.  Plaintiff is a young man, 21 years old at the time of trial, who has his working life ahead of him.  Since plaintiff has a sixth grade education, his employment options are on the whole limited to jobs involving manual labor.  Limitation of employment opportunities resulting from lack of education is a specific factor which the court may consider in awarding damages for reduced earning capacity.  1 Stein, supra, 4:10, at 162.

     Considering the foregoing factors, along with all the other testimony presented, the court awards damages for diminution of future earning capacity in the amount claimed of $46,464.  This sum was

[9 FSM Intrm. 28]

calculated on what plaintiff would have earned in the future based on his pre-accident wage if he had worked until age 65, and hence is a lost future wages calculation.  However, the court also concludes that on all the facts of this case it serves as an adequate and reasonable measure of plaintiff's lost future earning capacity as well, since plaintiff is limited to the sort of work he was doing before the accident.  As previously noted, a plaintiff's pre-accident earnings are a specific factor that a court may consider in determining lost future earning capacity.  Id. 4:10, at 161.

     In sum, the court total damages of $25,000 for pain and suffering, $9,152 for lost wages from the time of the accident until the date of trial, and $46,464 for lost prospective earning capacity, for total damages of $80,616.  Judgment will issue herewith.

     Plaintiff made no request for entry of judgment against defendant Paul Tapang.  As to him, the complaint is dismissed with prejudice.