DiCaro: Will Erin Andrews Ever See $55 Million?

By Julie DiCaro–

(CBS) On Monday, a Nashville jury awarded Fox Sports sports personality Erin Andrews $55 million in her peephole videotape lawsuit against a stalker, a Nashville hotel and its owner. While Andrews’ suit had asked for as much as $75 million in damages, the jury’s verdict was hailed by women as a victory for privacy rights and a stern message to hoteliers that they’re responsible for ensuring the safety of their guests.

But how much of that $55 million is Andrews likely to see?

It’s likely that the jury in this case didn’t just pull the $55 million figure out of the air, but rather used a worksheet provided to jurors to aid them in calculating damages. While we don’t know how the jury arrived at the $55 million number just yet, keep in mind that more than 17 million people to date have viewed the the surreptitious video of Andrews naked in her hotel room. If the jury were to assign a dollar value to each view — say about $3 in damages per view — we arrive at the $55 million figure fairly quickly. It’s possible the jury’s worksheet (if they used one) will be attached to the verdict form when it’s filed. If that’s the case, we’ll know fairly quickly how they calculated damages.

It’s also worth bearing in mind that the damages awarded to Andrews are more than likely not to make up for her lost wages or damage to her career, as it’s well-established that Andrews continued to be successful financially despite the virality of the videotape, which she tried repeatedly to scrub from the Internet at a significant cost. Rather, the jury’s award is probably compensation for Andrews’ pain and suffering and mental anguish, which Andrews’ tearful testimony certainly helped solidify.

Before they retired to deliberate, the jury was probably read something close to this Tennessee pattern jury instruction:

T.P.I. – CIVIL 14.10 Personal Injury – Pain and Suffering Plaintiff shall be awarded the following elements of damage experienced in the past: [Physical pain and suffering] [Mental or emotional pain and suffering] [Loss of capacity for the enjoyment of life] [Disfigurement] [You shall also award compensation for the present cash value of:] [Physical pain and suffering] [Mental or emotional pain and suffering] [Loss of capacity for the enjoyment of life] [Disfigurement] reasonably certain to be experienced by a party in the future]. Pain and suffering encompasses the physical discomfort caused by an injury. Mental or emotional pain and suffering encompasses anguish, distress, fear, humiliation, grief, shame or worry. Disfigurement is a specific type of permanent injury that impairs a plaintiff’s appearance. Damages for loss of enjoyment of life compensate the injured person for the limitations placed on the ability to enjoy the pleasures of life. Impairment of physical function prevents a person from living life in comfort by adding inconvenience or loss of physical ability. There is no mathematical formula for computing reasonable compensation for [physical pain and suffering] [mental or emotional pain and suffering] [disfigurement] [loss of capacity for the enjoyment of life], nor is the opinion of any witness required as to the amount of such compensation. In making an award for such damages, you must use your best judgment and establish an amount of damages that is fair and reasonable in light of the evidence before you. 

No matter how the jury arrived at the $55 million in damages, the likelihood that Andrews will see an immediate windfall as a result of the verdict is slim. First, the jury divided the damages between the stalker, Michael David Barrett, and the owner and operator of the Nashville Marriott, Windsor Capitol and West End Hotel Partners. The jury found that Barrett was 51 percent at fault for Andrews’ mental anguish, while the hotel was responsible for 49 percent, as they assigned Barrett a room next to Andrews upon his request.

Barrett was convicted and sentenced to 30 months in prison for interstate stalking, and it’s almost certain he doesn’t have the $28 million the jury says he’s legally responsible for. While Andrews can place a civil judgment against Barrett and garnish his wages for the remainder of his life, it’s unlikely she’ll ever squeeze anything close to millions of dollars out of Barrett.

Due to joint and several liability — which states that co-defendants are responsible for the damages the other parties can’t pay — Windsor and West End could be on the hook for the entire $55 million, though a recent  Tennessee law limits joint and several liability in certain cases. Either way it’s unclear whether Windsor or West End has access to the approximately $27 million that comprises their share of the verdict. It’s possible, even likely, that issues of whether the companies’ insurers should be on the hook for coverage of the verdict will arise, and it’s possible one or both companies could file for bankruptcy. All of this could drag Andrews’ collection of damages out for years.

The good news for Andrews is that the judge who heard the case, Hamilton Gayden, is known around Nashville as a jurist who gives a lot of discretion to his jury and who doesn’t like to reduce or revise damage awards. Moreover, in order to succeed on an appeal, Windsor and West End would have to show that the jury abused their discretion in the verdict and damage award, which is a tough bar to get over on appeal.

All this is to say that while Andrews is likely to prevail in post-trial motions and on appeal, it’s not likely she’s going to be making a $55 million deposit into her bank account anytime soon, if at all. And perhaps money wasn’t the point of Andrews’ lawsuit at all.

Perhaps it had more to do with the hotel who saw no problem giving a strange man a room next to a famous, single woman, just because he asked them to. It had to do with the millions of Americans who burned up their computer screens rushing to view the video that caused a woman great distress. It had to do with the West End Hotels representative whose dinner table fired up the video at a restaurant just last week.

With that in mind, no matter how much cash Andrews eventually gets from this case, the verdict was a win.

Julie DiCaro is an update anchor and columnist for 670 The Score. She previously worked for 15 years as a lawyer in criminal and family court. Follow Julie on Twitter @JulieDiCaro and like here on Facebook here. The views expressed on this page are those of the author, not CBS Local Chicago or our affiliated television and radio stations.

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