Opinion
No. 2:03CV0411DAK.
February 7, 2005
ORDER
This matter is before the court on Defendants' Objection to the Form of Plaintiff's proposed Judgment pursuant to DUCivR 54-1, Defendants' Motion for a New Trial, Defendants' Motion for Leave to File Third Party Complaint for Indemnification and Other Relief, and Defendants' Motion for New Trial or Alternatively a Remittitur. The court does not believe that a hearing will significantly aid in its determination of these matters. Therefore, the court renders the following Order based on the materials submitted by the parties.
DISCUSSION
I. Objection to Form of Judgment
In their Objection to the Form of Judgment, Defendants renew their objections to adverse rulings by the court before and during the trial in this matter. The court finds these objections improper. Defendants have clearly preserved these objections and their positions on these matters for appeal. The court does not believe that any of those rulings were in error. Defendants present no new facts or arguments that would require the court to review its earlier rulings. And, the court finds it inappropriate for Defendants to renew such objections with respect to the form of Judgment entered in this case.
A. Past Special Damages for Medical Care
As to Defendants' Objections with the Form of Plaintiff's proposed Judgment, Defendants first argue that the settlement amounts paid by Defendants' liability carrier to Plaintiff's Workers' Compensation insurance carrier ("RTW") should be broken out into their proper categories in the Judgment in order to define the rights and duties between Defendants' liability insurer, RTW, and Plaintiff. However, the jury's Verdict is a matter of record, as is the Settlement Agreement between RTW and Defendants. If Defendants have a dispute with RTW regarding their Settlement Agreement, it does not directly involve Plaintiff or affect the jury's Verdict. Such a dispute can be pursued in a separate action based on the Defendants' Settlement Agreement. In this action, Plaintiff's claim is against Defendants and her Judgment, based on the jury's Verdict, is against Defendants. The court sees no reason for including information regarding the rights and duties between Defendants and RTW in the Judgment.
In addition, Defendants contends that the Court should order that the total judgment amount for past special damages — health care/medical damage be $29,137.69 (the total award of $151,641.00 less $122,503.31, which is the amount paid by their liability insurer to the worker's compensation insurance carrier). Defendants also argue that Plaintiff has no basis in law or equity to collect prejudgment interest or Rule 54(d) costs on any amount awarded for past medicals. Plaintiff argues that the court's deduction for the amount paid by Defendants' liability carrier should be made after the statutory interest is added to her award for past special damages.
Plaintiff's proposed Judgment includes interest on her past special damages accruing at the rate of 10% per annum since the date of the subject accident, December 12, 2002. The Judgment does not specify an exact sum for that interest because Plaintiff was uncertain as to the date the Judgment would be entered. As of the date of the Verdict, January 13, 2005, the amount of interest was $38,959.98. Each day until the Judgment is entered will increase the amount by $50.09. Defendants entered into a settlement with RTW for the amount that RTW has paid for workers compensation benefits. Defendants are entitled to credit for that payment and only that payment. Defendants are not entitled to cut off Plaintiff's statutory right to prejudgment interest by paying RTW in a Settlement Agreement in which Plaintiff did not participate. Ms. Hagen was entitled to have a jury determine her past special damages and she is entitled to interest on that amount under Utah Code Annotated Section 78-27-44. By the terms of the Judgment proposed by Plaintiff, Defendants' receive full credit for the amount they have paid RTW before Judgment is entered.
As to post-Judgment costs to be awarded to Plaintiff under Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. Section 1920, none of such costs is particularly tied to past medical damages. Plaintiff's costs would be intermingled with all of the categories of damages she received. There is no support for Defendants' contention, and Defendant provides no support, that Plaintiff should not be awarded costs for past medical damages.
Defendants further argue that the award for past medical care should be eliminated from the judgment altogether based on its earlier ruling. Again, the court finds it improper for Defendants to make such an argument in an objection to the form of judgment. Defendants present no new facts or law in support of a reconsideration of the court's earlier ruling. Therefore, the court's previous ruling will stand.
B. Past Special Damages for Lost Earnings
Based on its arguments above, Defendants assert that the Judgment should reflect a total judgment for Past Special Damages for Lost Earnings of $17,234.38 (the jury award of $28,544.00 less $11,309.62, which is the amount Defendants' liability carrier paid to RTW). Defendants also argue that prejudgment interest and costs on this amount should not be allowed. Applying the court's rational discussed above, the court similarly finds no reason for reducing the amount fixed by the jury for Plaintiff's past lost earnings or for disallowing pre-judgment interest or costs on that amount.
C. Future Special Damages for Future Lost Income and Earning Capacity
Also based on their same rationale, Defendants argue that the total judgment for Future Special Damages for lost earnings should be $370,226.78 (the jury award of $400,000 less $29,773.22, which is the amount Defendants' liability carrier paid to RTW). Furthermore, Defendants submit that prejudgment interest does not apply to future losses and should not be allowed on this or any other future damage category. In addition, Defendants argue that no costs pertaining to special damages for future lost earnings should be allowed.
Plaintiff's proposed Judgment subtracts the $29,773.22 from the Verdict before the Judgment is entered. And, Plaintiff concedes that she cannot recover prejudgment interest on future special damages. The proposed Judgment does not purport to give her such a recovery. Nonetheless, Plaintiff is entitled to compensable costs of court for this category of damages.
The court concludes that Defendants' objections to the form of Plaintiff's proposed Judgment are without merit, the court orders that Judgment shall be entered in this case as of February 11, 2005, in favor of Plaintiff and against Defendants in the amount of the jury verdict plus pre-judgment interest on past special damages minus the amount Defendants paid RTW. Plaintiff is directed to submit a revised Judgment including exact dollar amounts as of February 11, 2005. The Judgment shall also reflect that Plaintiff is entitled to compensable court costs to be determined post-Judgment and that that total amount will bear interest at the Judgment rate applicable on February 11, 2005 from February 11, 2005 forward. Upon receipt of Plaintiff's Judgment, the Clerk of Court shall enter such Judgment.
II. Defendants' Motion for a New Trial
Defendants move for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. Defendants base their motion on Plaintiff's counsel's alleged misconduct. Defendants contend that Plaintiff's counsel improperly (1) injected liability insurance into the trial by stating that defense counsel would consider anything less than $2 million a victory, (2) sought an award of damages to punish and exemplify Defendants by stating the jury should pick up the sword of justice and "strike a blow for justice," (3) introduced cumulative, inflammatory, and prejudicial evidence and testimony of the accident in alleged violation of the parties' August 2, 2004 Stipulation, (4) inflamed and aroused the jury by using a "per diem" argument to attack the general damage amounts advanced by Defendants, and (5) engaged in conduct that unfairly took advantage of the vulnerability of absent Defendants.
This court does not believe that Plaintiff's counsel engaged in any misconduct. Nor does the court believe that any of the complained of conduct played a substantial or meaningful role in the outcome of the trial. Most of Defendants' arguments focus on matters to which Defendants failed to object at trial. In a case where the losing party raised alleged attorney misconduct in a motion for a new trial rather than in a contemporaneous objection, the Tenth Circuit recognized that "[t]here are `strong policy reasons for the basic rule that timely objection is a condition precedent to review on appeal.' `[A] party may not wait and see whether the verdict is favorable before deciding to object.'" Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962 (10th Cir. 1993) (citations omitted).
The only objection Defendants made to this list of alleged misconduct was an objection to Plaintiff's per diem analysis. The court denied Defendants' objection to per diem arguments during the jury instruction conference, which was outside the presence of the jury and before Plaintiff's counsel made his closing argument to the jury. The court ruled that it was within the discretion of the trial court to allow or disallow such an argument and that the court would allow counsel latitude in making per diem arguments during closing arguments. The court instructed the jury that there was not set formula for general damages and that what the lawyers say is not evidence. Moreover, when the court made its ruling at the jury instruction conference that Plaintiff's counsel could make per diem arguments, Defendants did not contend that any additional cautionary instructions were necessary. There was nothing improper about Plaintiff's counsel making a reasonable per diem argument in closing arguments after the court had ruled that he could. In addition, there was nothing improper about Plaintiff's counsel use of a per diem argument to demonstrate to the jury that Defendants' proposed amount of general damages was not fair compensation. Attorneys routinely make arguments to contradict their opponent's position — such arguments are mere advocacy.
Defendants' claim that liability insurance was injected into the trial by Plaintiff's counsel's statement that Defendants and their counsel would be pleased with a verdict of less than $2 million is unfounded. That statement had nothing to do with insurance and did not amount to a signal to the jury that there was an insurance limit of $2 million. It was merely an argument to support Plaintiff's position that a proper award of damages would be above $2 million. The statement did nothing to prejudice the jury against Defendants. Furthermore, Defendants did not raise a contemporaneous objection to the statement.
Defendants' argument that Plaintiff "piled on" evidence of the accident in violation of the parties' Stipulation is without merit. The parties' Stipulation provides that Plaintiff will be allowed to present evidence of the accident at trial to the extent determined by the court. Plaintiff rightfully was allowed to introduce enough evidence regarding the accident for the jury to have an idea of its severity and to have an adequate understanding of what Plaintiff experienced. Again, Defendants made no objection during the trial as to the amount of evidence regarding the accident.
The court also finds no support in the record for Defendants' contention that Plaintiff's counsel urged the jury to award damages that would punish or make an example out of Defendants. The jury was instructed that they could not award such damages, and Plaintiff's counsel reminded the jury that they were not to award damages to punish Defendants. Plaintiff's counsel's statements regarding the sword of justice were permissible oratory for closing arguments. Moreover, Defendants made no objection during closing arguments as to Plaintiff's counsel's remarks about the sword of justice.
Finally, Defendants claim that Plaintiff's counsel "engag[ed] in other conduct to take unfair advantage of the vulnerability of absent Defendants who by agreement relinquished their Constitutionally protected due process rights by agreeing not to come to trial and testify." Defendants then proceed to argue that Defendants "bargained for the exercise of the right to testify, and now depend heavily on the protections of the Stipulation. Unless the Stipulation is properly and rigorously enforced to protect Defendants, the prejudice suffered through the misconduct of Plaintiff's counsel is equivalent to a violation [of] procedural due process." Defendants, however, do not specify what alleged misconduct allegedly took unfair advantage of the absent Defendants. Assuming Defendants imply that all of the forgoing conduct contributed to this claim, the court has already ruled that there was no misconduct. The court is unaware of any instances in which Defendants' counsel objected to Plaintiff's counsel's conduct in this regard during trial. Without more specificity as to "other conduct," the court cannot address Defendants' claim. However, the parties' Stipulation referred only to whether Defendants would testify. It did not prohibit Defendants from attending the trial. Nevertheless, Plaintiff's counsel did not comment on the absence of Defendants from trial. The court finds no basis for finding that Defendants due process rights have been or will be violated. Furthermore, it is speculative to assume that the jury's verdict would have been influenced by Defendants' appearance or testimony. The jury's verdict was well within a reasonable range given the facts of the case. Therefore, the court concludes there are no grounds for a new trial. Accordingly, Defendants' motion is denied.
III. Defendants' Motion for Leave to File Third Party Complaint
Defendants move, pursuant to Rule 14(a) of the Federal Rules of Civil Procedure for leave to file a Third-Party Complaint against American Compensation Insurance/RTW, Inc. ("RTW"). RTW is Plaintiff's workers compensation insurance carrier. Defendants' liability insurer reached a Settlement Agreement with RTW before trial and paid RTW the agreed amounts to satisfy RTW's reimbursement claims for workers compensation payments made for Plaintiff's benefit of certain past and special damages. The Settlement Agreement also provided that RTW would pay additional special damages awarded to Plaintiff at trial and indemnify and protect Defendants and their liability insurer in that regard.
Defendants contend that the purposes of the Third Party Complaint are: (1) to afford a full opportunity for RTW to participate as a party and be heard in post trial proceedings affecting the amount of its liability as may be appropriate; (2) to afford all parties concerned with an appropriate forum for any additional matters pertaining to the settlement; and (3) upon final determination at the trial level of motions concerning special damages, to make available a speedy mechanism for RTW to resolve Plaintiff's special damages claims.
The court concludes that Defendants' motion is untimely. Defendants' first argument in support of filing a Third-Party Complaint is to allow a separate party to argue against Plaintiff's award of special damages. This case has already gone to trial, and Plaintiff has received a jury verdict against Defendants. If Defendants and RTW believed it was necessary for RTW to be involved in post-trial proceedings affecting its amount of liability, Defendants should have filed the instant motion contemporaneous with their settlement with RTW. Defendants and RTW reached their settlement before the trial in this case, acknowledged the impending trial in their agreement, and agreed to provisions with respect to post-trial liability. This is not a case where there is an unknowing party whose rights or liability was unknowingly decided. RTW entered into a settlement agreement with Defendants that determined its liability. If it had wished to participate in this litigation it should have sought a provision in the settlement agreement allowing it some sort of role in the litigation or sought to be a part of this litigation before trial. The court is unaware of any procedure for or right of a party to gain access to post-trial proceedings when the party has not participated in the litigation or trial of the case, and Defendants have provided none.
Defendants' second purpose for filing a Third-party Complaint is equally unavailing. If Defendants need a forum for addressing additional matters pertaining to their settlement with RTW, Defendants can sue RTW in a separate action. Such matters would not involve Plaintiff and would only work to delay and complicate the instant proceedings. Moreover, Defendants proposed Third-Party Complaint seeks only a declaration of the parties' rights, duties and liabilities under the Settlement Agreement. There is no claim of breach of the Settlement Agreement, of any misunderstanding of the terms of the Settlement Agreement, or of any delay by RTW. Without some dispute between the parties, the court does not typically engage in contract construction. The parties set out their rights, duties, and liability in their Settlement Agreement. Unless there is some dispute in the application of that agreement, the court finds no basis for the Third-Party Complaint.
Finally, Defendants seek a speedy mechanism for RTW to resolve Plaintiff's special damages claims. However, as discussed above, Plaintiff's verdict is against Defendants. The fact that Defendants and RTW entered into an agreement separate and apart from this case does not entitle RTW to step into this litigation after the trial is completed. Defendant's motion appears to be more of a request to allow a party to intervene than a true third-party complaint for indemnification. Defendants have provided the court with no legal support for allowing a third-party to become involved in post-trial proceedings. Accordingly, the court finds no basis for allowing Defendants' proposed Third-Party Complaint. Therefore, Defendants' request for leave to file a third-party complaint is denied.
IV. Defendants' Motion for New Trial or Alternatively a Remittitur
Defendants' have brought a subsequent motion for a new trial pursuant to Rule 59(a) and (e) on the grounds that jury's award of damages was against the weight of the evidence, the jury's award of future income and earning capacity relied on erroneously admitted evidence, the general damage award was excessive and the result of attorney misconduct, the damages for future loss of income and earning capacity was excessive, and the misapplication of the collateral source rule substantially prejudiced Defendants.
Defendants "bear a heavy burden of demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence." See Blanke v. Alexander, 152 F.3d 1224, 1236 (10th Cir. 1998). In fact, "every reasonable presumption should be indulged in favor of the general verdict." See Kirkendoll v. Neustrom, 379 F.2d 694, 699 (10th Cir. 1967). "The jury's award will be considered inviolate so long as it is not `so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial.'" Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994) (citations omitted). "A trial judge should not order a remittitur or a new trial when the size of the verdict turns upon conflicting evidence and the credibility of witnesses." Id.
Defendants' various arguments regarding the size of the jury award for almost every category of damages do not accurately consider the evidence presented by Plaintiffs' witnesses. The jury is entitled to determine the witnesses' credibility. Defendants, and all parties in a trial, run the risk of a jury agreeing with the other side's arguments. Viewing the evidence in a light most favorable to the jury's verdict, there is ample evidence in this case that the jury's verdict is in line with the evidence presented at trial. This court will not disturb a jury's award unless it is so excessive as to shock the conscience of the court. Not only does the jury's verdict in this case not shock the conscience of the court, the court finds it a reasonable award. Therefore, the court finds no basis for ordering a remittitur.
Defendants' also argue that Professor Randle's Table 9, which projected future costs of Plaintiff's anti-depressant and sleep medications, was not admissible because it was not based on expert medical opinion establishing that Plaintiff would need the medication for the rest of her life and it was unfair that Defendants received this exhibit three days before trial. The jury was able to evaluate Randle's testimony and determine what weight to give to it. And, Defendants had ample opportunity to counter Randle's arguments through argument, expert testimony, or their own projections. Defendants cannot show prejudice as a result of this evidence.
In addition, Defendants argue that the testimony of Plaintiff's experts were erroneously admitted under Rules 702 and 703 of the Federal Rules of Evidence. Defendants' arguments are substantially similar to the arguments that they made in their motion for summary judgment. The court denied that motion and does not believe there are grounds for reconsidering its ruling based on the evidence at trial. The court does not conclude that the evidence regarding Plaintiff's future loss of income and earning capacity is too speculative. Defendants were able to present their own version of Plaintiff's future loss of income and earning capacity. The fact that both parties were able to present evidence as to future damages does not create prejudice to Defendants.
Defendants' argument that the general damage award was excessive and the result of Plaintiff's counsel's misconduct was denied by the court above. There was no misconduct on the part of Plaintiff's counsel, and the jury was not wrongfully aroused or incited. Therefore, Defendants have not present any grounds for overturning or decreasing the general damage award.
Finally, Defendants argue that the misapplication of the collateral source rule substantially prejudiced them and denied them a fair trial. Defendants argue that the court's ruling on motions in limine prior to trial improperly precluded them from demonstrating at trial that a large amount of Plaintiff's past special damages had been paid by Defendants' insurer to Plaintiff's workers compensation carrier, RTW. The court finds no basis for reconsidering its ruling on the pre-trial motions in limine dealing with the settlement between Defendant's insurer and RTW. Nevertheless, because its previous ruling on the matter was from the bench, the court will clarify its position to Defendants in this Order.
"The collateral source rule provides that a wrongdoer is not entitled to have damages, for which he is liable, reduced by proof that the plaintiff has received or will receive compensation or indemnity for the loss from an independent collateral source." DuBois v. Nye, 584 P.2d 823, 825 (Utah 1978) (citations omitted). The independent collateral source is most often the plaintiff's insurer, and the usual role of the collateral source rule is to prevent insurance payments of damages from reducing the wrongdoer's liability. See Suniland Corp. v. Radcliffe, 576 P.2d 847 (Utah 1978) (plaintiff's insurance premium was not paid to protect tortfeasor); Phillips v. Bennett, 21 Utah 2d 1, 439 P.2d 457 (1968) (insurance payments belong to plaintiff and are not credited to defendant).
An unpublished Tenth Circuit states that "the collateral source rule generally does not apply `when the collateral source is somehow identified with the tortfeasor . . . in a suit against the tortfeasor.' Under those circumstances the additional compensation will be used to offset tortfeasor liability because it is as if the tortfeasor himself paid." Green v. Denver R.G.W.R.R., 59 F.3d 1029, 1995 US App. LEXIS 16199 (10th Cir. 1995) (unpublished decision). The Utah Supreme Court has stated that the "collateral source rule is applicable unless the collateral recovery comes from the defendant or a person acting on his behalf." Mahana v. Onyx Acceptance Corp., 2004 UT 59, 96 P.3d 893, 901 (Utah 2004). "If the benefit was a gift to the plaintiff . . . or established for him by law, he should not be deprived of the advantage that it confers. The law does not differentiate between the nature of the benefits, so long as they did not come from the defendant or a person acting for him." Id.
Defendants argued that once the settlement occurred and payment of the settlement amounts were made by Defendant's liability insurer to RTW, the source of the benefits switched from a collateral source allied with Plaintiff to a source allied with Defendants. However, the settlement agreement did not involve Plaintiff and Plaintiff's collateral source remains RTW.
Both parties agreed that Plaintiff's receipt of money from RTW would not have been admissible under the collateral source rule. However, once there was a settlement between Defendants and RTW, the question the court faced was whether the collateral source rule applied because RTW had received funds from Defendants or an entity acting for it. Before trial there were obviously concerns by both parties — Plaintiff did not want to appear like she had been paid for most of her damages and was greedy or overreaching; and, Defendants wanted to argue to the jury that they were reasonable and had already paid a portion of her special damages.
Weighing these competing interests and the policy behind the collateral source rule, the court concluded that disclosure of the settlement agreement would clearly work to Plaintiff's disadvantage. For example, if there had been no settlement: If Plaintiff's medical bills had equaled $1,000,000 but her workers compensation carrier had negotiated the bills down and paid $500,000, she would be able to admit into evidence the bills totaling $1,000,000, potentially collect the full $1,000,000 from the jury, pay RTW back the $500,000 they had paid, and keep the additional $500,000. Therefore, the typical application of the collateral source rule can result in a plaintiff receiving an award greater than what the collateral source has paid. Clearly, in this case, if the jury had been told of the settlement between RTW and Defendant's liability carrier, it would have also been informed that insurance had negotiated the bills to a lower level, the medical bills had been paid at that negotiated amount, and she would likely not get any additional money from the jury. This is a clear departure from the typical functioning of the collateral source rule.
Under Colorado law, an agreement between the defendant and Plaintiff's worker's compensation carrier does not affect the rights of a plaintiff with respect to her pursuit of a tort claim. One matter of concern to the court in determining whether the settlement agreement between Defendants and RTW should have come in was the fact that Plaintiff was not involved in the settlement process. If Plaintiff received a no cause verdict from the jury, RTW would have still been on the line to pay the full amounts. If she received more than amount for which Defendants' settled with RTW, RTW would remain on the line to pay any additional special damages. Although Defendants argued that they fit in to the exception to the collateral source rule, stating that the collateral source rule is applicable unless the collateral recovery comes from the defendant or a person acting on his behalf, Plaintiff's collateral recovery is still only from RTW. The fact that Workers Compensation settled with Defendant's insurer does not change anything with respect to Plaintiff. Workers Compensation was obligated to pay the sums it did to Plaintiff. It would be liable for that amount whether she received a big recovery or got nothing. The fact that RTW settled with Defendants should not have precluded Plaintiff from proceeding to trial as any other plaintiff would have.
The court concluded that the safest course was to keep the settlement out. It allowed the jury to consider this case like any other personal injury case and proper offsets and subrogation rights are now being addressed by the court after trial. Plaintiff was entitled to the reasonable value of medical care reasonably required and assessed as a result of her injuries. Defendants were not entitled to benefit from the fact that the health care providers in question received less than what they would have had Plaintiff not been injured in an employment-related activity. Evidence of the settlement agreement and the particulars of the agreement between Defendants insurer and RTW were not relevant to the issues to be decided by the jury. Any discussion of the particulars of the settlement agreement would likely have caused substantial prejudice to Hagen, confused the issues, and caused the jury to speculate about things it should not have been speculating about. To the extent that Defendants are entitled to an offset as a function of what their liability carrier paid to RTW, such offset is being properly addressed by the court after the verdict.
The fact that Defendants believed they were prejudiced by the court's ruling because it was not allowed to prove payment as a defense is unfounded. Defendants will receive the benefits of its settlement in post-verdict proceedings. Defendants claim that "it is highly likely the jury considered the overall amounts in setting general damages" and the fact that the jury was unaware of Defendant's payment of $122,000 of medical bills when calculating the award artificially inflated the award and resulted in substantial prejudice to Defendants. The court already had to weigh which party would have to bear the risk regarding the proper information to go to the jury and the court concluded that under the collateral source rule, the information regarding Defendants' payment to RTW was precluded. There were no prejudicial comments made at trail about a failure to pay. Therefore, the court concludes that Defendants have not presented adequate grounds for a new trial or remittitur.
CONCLUSION
Based on the above reasoning, Defendants' Objections to Judgment are DENIED, Defendants' Motion for New Trial is DENIED, Defendants' Motion for Leave to File Third Party Complaint is DENIED, and Defendants' Motion for New Trial or Alternatively a Remittitur is DENIED.
As discussed above, the court orders that Judgment shall be entered in this case as of February 11, 2005, in favor of Plaintiff and against Defendants in the amount of the jury verdict plus pre-judgment interest on past special damages minus the amount Defendants paid RTW. Plaintiff is directed to submit a revised Judgment including exact dollar amounts as of February 11, 2005. The Judgment shall also reflect that Plaintiff is entitled to compensable court costs to be determined post-Judgment and that that total amount will bear interest at the Judgment rate applicable on February 11, 2005 from February 11, 2005 forward. Upon receipt of Plaintiff's Judgment, the Clerk of Court shall enter such Judgment.