Opinion
26624/2002.
Decided September 11, 2006.
Plaintiffs MIGUEL PIMENTEL and SANTA REYES commenced this action to recover damages for personal injuries sustained as a result of a collision between the vehicle in which they were passengers and the motor vehicle, operated by Elizabeth Cahill and leased from Chase Manhattan Auto Finance Corp. (Chase). Plaintiffs brought their action against Leoncio De Jesus (De Jesus), the driver of the vehicle in which they were passengers, and Elizabeth Cahill, the driver of the other motor vehicle which struck the De Jesus vehicle.
Shortly before commencement of the trial instituted by Pimentel and Reyes, Chase commenced a third-party action against Dennis Cahill the father of Elizabeth Cahill who was the driver of the vehicle leased from Chase. Both Elizabeth Cahill and Dennis Cahill signed a motor vehicle lease agreement issued by Chase which, inter alia, contained the following notice "Each lessee accepts and is separately liable under the terms and conditions of this lease." Chase then moved at the commencement of the trial, pursuant to CPLR § 1001(a) and 1003, to dismiss plaintiffs' action premised on the failure to join Dennis Cahill as a necessary party (direct defendant) which motion parenthetically was previously made and summarily denied by the Justice assigned to the Trial Assignment Part. Chase's motion was entertained by this Court and denied which prompted Chase to immediately file an appeal to overturn this court's decision. In addition, counsel representing Dennis Cahill in the third-party action commenced by Chase moved to sever the third-party action and this motion was granted.
The trial proceeded and ended in a verdict on July 31, 2006 in plaintiffs' favor which totaled $400,000. However, while the jury was deliberating plaintiffs Pimentel and Reyes entered in a high low agreement by which Chase guaranteed plaintiffs a minimum payment of one million dollars in exchange for their promise not to enforce any verdict by the jury or judgment in excess of $2,500,000. Defense counsel representing De Jesus and Elizabeth Cahill made it clear before the jury rendered their verdict that they are not part of the high low agreement between plaintiffs and Chase. Chase in turn placed on the record that it was not waiving its right to seek contribution from De Jesus in the event the jury finds De Jesus culpable for the accident and injuries sustained by plaintiffs Pimentel and Reyes. Chase also made reference to the settlement it and Elizabeth Cahill entered into with De Jesus who had brought a separate action on his own behalf to recover damages for the injury he sustained in the same accident.
In other words while Chase had agreed to contribute $150,000 as its share of the $250,000 settlement with De Jesus, Chase nevertheless made it clear that it would reserve all of the rights to proceed against De Jesus and Cahill with respect to Chase's cross claims asserted against them if the jury found in favor of the plaintiff and apportioned liability between De Jesus and Cahill.
The relevant parts of the verdict sheet are set forth:
THE JURY'S VERDICT 1. Was the Defendant, LEONCIO DE JESUS, negligent?
Yes No_________Vote: _________
6-0 or 5-1
2. Was the negligence of the Defendant, LEONCIO DE JESUS, a substantial factor in causing the accident?
Yes No_________Vote: _________
6-0 or 5-1
3. Was the Defendant, ELIZABETH CAHILL, negligent?
Yes No_________Vote:_________
6-0 or 5-1
4. Was the negligence of Defendant, ELIZABETH CAHILL, a substantial factor in causing the accident?
Yes No_________Vote: _________
6-0 or 5-1
5. What was the percentage of fault of each Defendant?
30 70 100
Defendant LEONCIO DE JESUS ........................................................ % Defendant ELIZABETH CAHILL ...................................................... % Total must be ...................................................................... % Vote: _________6-0or5-1
6. State the amount, if any, awarded to compensate the Plaintiff, MIGUEL PIMENTEL, for the following item of alleged past damages caused by the accident, from July 16, 2002 (the date of the accident) up to the date of your verdict:
Past pain and suffering, including the loss of enjoyment of life: ..................................................... $ 25,000
Vote: _________
6-0 or 5-1
If you decide not to make an award, enter 0.
7. State the amount, if any, awarded to compensate the Plaintiff, MIGUEL PIMENTEL, for the following items of alleged future damages caused by the accident, from the date of your Verdict up to the time that he would be expected to live:
a. Future pain and suffering, including the loss of enjoyment of life, and the permanent effect of the injuries: ....................................... $75,000
Vote: __________
6-0 or 5-1
If you decide not to make an award, enter 0.
b. Future Medical expenses: ......................... $200,000
Vote: _________
6-0 or 5-1
If you decide not to make an award, enter 0.
8. State the period of years over which any amount awarded to Plaintiff, MIGUEL PIMENTEL, in the preceding Question, is intended to provide compensation:
a. Future pain and suffering, including the loss of enjoyment of life, and the permanent effect of the injuries: ............................... 6 years
Vote: __________
6-0 or 5-1
b. Future Medical expenses: ....................... 20 years
Vote: _________
6-0 or 5-1
9. State the amount, if any, awarded to compensate the Plaintiff, SANTA REYES, for the following item of alleged past damages caused by the accident, from July 16, 2002 (the date of the accident) up to the date of your verdict:
Past pain and suffering, including the loss of enjoyment of life: .................................................... $ 25,000
Vote: _________
6-0 or 5-1
If you decide not to make an award, enter 0.
10. State the amount, if any, awarded to compensate the Plaintiff, SANTA REYES, for the following items of alleged future damages caused by the accident, from the date of your Verdict up to the time that she would be expected to live:
a. Future pain and suffering, including the loss of enjoyment of life, and the permanent effect of the injuries: .................................... $ 25,000
Vote: __________
6-0 or 5-1
If you decide not to make an award, enter 0.
b. Future Medical expenses: .......................... $ 50,000
Vote: _________
6-0 or 5-1
If you decide not to make an award, enter 0.
11. State the period of years over which any amount awarded to Plaintiff, SANTA REYES, in the preceding Question, is intended to provide compensation:
a. Future pain and suffering, including the loss of enjoyment of life, and the permanent effect of the injuries: .................... 5 years
Vote: ________
6-0 or 5-1
b. Future Medical expenses: ... .......................... 10 years
Vote: _________
6-0 or 5-1
CHASE'S MOTION FOR INDEMNIFICATION :
After the verdict was rendered by the jury, this court directed counsel to appear on August 7, 2006 to present post trial motions directed to the efficacy of the verdict. At the hearing, in addition to counsel who appeared on behalf of the parties during the trial, Richard Kaufman, the attorney who represented De Jesus in a separate personal injury action brought against Cahill and Chase appeared on behalf of De Jesus to oppose Chase's post trial motion that would impair the settlement entered into between Chase and Cahill regarding De Jesus's personal injury claim. After hearing arguments, counsel were accorded the right to submit memorandums of law, supporting their contentions and legal arguments.
The attorney representing De Jesus as a defendant in the action instituted by the plaintiffs Pimentel and Reyes and Richard Kaufman, the attorney representing De Jesus with respect to the personal injury action instituted by De Jesus to recover damages allegedly arising from the same accident presented arguments in opposition to Chase's motion for indemnification (characterized by counsel representing De Jesus as a motion by Chase for contribution). Both attorneys representing De Jesus initially referred this Court to the decision rendered in Baca v. HRH Construction Corp., 200 AD2d 538, 607 NYS2d 21 (1st Dept. 1994) to support their contention that Chase's motion for contribution was "eliminated" by the high low agreement entered into between plaintiffs Pimentel, Reyes and defendant Chase.
Counsels' reliance upon Boca, supra, is misplaced. It was not the high low agreement between plaintiff and the third-party plaintiff's general contractor in Boca, supra, which foreclosed the third-party plaintiff's right to contribution. Instead the third-party plaintiff general contractor's inability to obtain contribution was based upon the principal that its right to contribution could not arise until it paid more than its equitable share of plaintiff's damages. ( see Klinger v. Dudley 41 NY2d 362, 361 NE2d 974, 393 NYS2d 323).
Kaufman, De Jesus' personal injury attorney, next argues that De Jesus owes no duty to Chase either expressed or implied and therefore Chase has no right to be indemnified citing the holding by the Court of Appeals in Rosado v. Proctor Schwartz, Inc., 66 NY2d 21, 484 NE2d 1354, 494 NYS2d 851 (1985). In Rosado, supra the court restated the distinction between contribution and indemnity. Contrary to the assertions raised by De Jesus' counsel, the court in Rosado, supra pointing to when indemnification is the appropriate remedy stated that "[a] party who has settled and seeks what it characterizes as indemnification thus must show that it may not be held responsible in any degree" ( Rosado, supra, 66 NY2d at 24-25), which is precisely Chase's posture in this lawsuit. The Rosado court also noted that a strict products liability action is not analogous to vicarious liability since liability in a product's liability action is imposed without degree of fault. Therefore, the manufacturers claim for indemnification was, as the court observed, in Rosado an attempt to avoid the contribution bar imposed by General Obligations Law § 15-108 (c).
Moreover, De Jesus's plaintiffs counsel apparently disregards the finding made by the jury which held De Jesus thirty per cent (30) responsible for the accident and injuries sustained by Pimentel and Reyes. Manifestly, Chase's liability stems from Elizabeth Cahill's negligent conduct regarding the manner in which she drove Chase's vehicle. Thus Chase's liability is imposed as a matter of law pursuant to Vehicle Traffic Law § 388 meaning Chase is vicariously liable for the negligent conduct of Cahill. Here, counsels' reliance upon Rosado, supra is misplaced. Extracting selective portions of court decisions fail to provide supporting authority for the arguments advanced by counsel. Apart from vicarious liability that has its geneses in Vehicle Traffic Law § 388 the court in Rosado also recognized that implied indemnity can be applied to accommodate one party who is vicariously liable for the tort of another party (citing Rogers v. Dorchester Assoc. 32 NY2d 553, 300 NE2d 403, 347 NYS2d 22) and pursuant to CPLR § 1601 (1) Chase's liability for non-economic damages exceeded fifty (50) per cent which according to the traditional rule makes Chase jointly and severely liable for Elizabeth Cahill's negligence.
Our courts have long recognized that the "actively negligent tortfeaser is considered the primary or principal wrongdoers and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act" ( McFall v. Compagnie Maritime Belge [Lloyd Royall] S.A., 304 N.Y.314, 107 NE2d 463). In order to receive the benefit of this doctrine the party being cast in damages can not be actively negligent or the primary wrongdoer and its availability depends upon the level of culpability of the party seeking indemnity (See Bush Terminal Bldgs. Co., v. Luckenbach S.S. Co., 9 NY2d 426, 174 NE2d 516, 214 NYS2d 428) [1961].
Consequently, that branch of Chase's motion for partial indemnification addressed to De Jesus is grounded on the culpability of De Jesus as found by the jury. Therefore Chase's motion is granted and Chase shall be indemnified by De Jesus to the extent of $120,000.00 or thirty (30) percent of verdict of $400,000.
PLAINTIFF'S MOTION TO RECOVER THE JURY'S AWARD OF FUTURE MEDICAL EXPENSES.
Plaintiffs Pimentel and Reyes entered into a high low agreement with Chase which effectively reduced plaintiffs claim against the other non-settling tort-feasors to the sum of 1 million dollars.
Section 15-108 reads in pertinent part:
"When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury it does not discharge any of the other tortfeasors from liability for the injury unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest."
(b) Release of tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.
(c) Waiver of contribution. A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person. (McKinney's Gol § 15-108).
Since the high low agreement guaranteed plaintiffs a minimum of 1 million dollars which was substantially greater than the jury's verdict, plaintiff's claim against the non-settling tortfeasors was reduced by the amount stipulated in said agreement or the amount of Chase's equitable share of damages whichever is the greatest.
While the statute is intended to promote or encourage settlement, it is also concerned with the equitable sharing of liability (See Mitchell v. New York Hospital 61 NY2d 208, 461 NE2d 285, 473 NYS2d 148); (also Whalen v. Kawasaki Motors Corp., 92 NY2d 288, 703 NE2d 246, 680 NYS2d 435, where the court recognized "Plaintiffs should be fairly compensated, but nonsettling defendants should not bear more than their fair share of a plaintiff's loss". ( Whalen 92 NY2d at 292). Moreover, the possibility of double recovery should be avoided ( Williams v. Niske 81 NY2d 437, 615 NE2d 1003, 599 NYS2d 519). Consequently plaintiffs' motion is denied.
DEFENDANT ELIZABETH CAHILL'S MOTION TO SET ASIDE THE JURY'S AWARD FOR FUTURE MEDICAL EXPENSES
Defendant Cahill's motion challenges the award for future medical expenses by contending the jury's finding violates Insurance Law § 5104 (a) which prohibits a recovery for basic economic loss. At the onset, counsel failed to recognize that this Court held as a matter of law, that plaintiffs met the serious injury threshold within the statutory criteria set out in Insurance Law § 5102 (d). Counsel also apparently misread the insurance law which counsel contends is the legal basis for Cahill's post trial motion. Section 5104 (a) reads in pertinent part "there shall be no right of recovery for non-economic loss, except in the case of a serious injury". . . .
Counsel's reliance upon cases such as Lloyd v. Russo 273 AD2d 359, 709 NYS2d 589(2nd Dept. 2000) is misplaced. Counsel mistakenly misconstrues the court's finding in Lloyd, supra, applicable to circumstances in the case at bar where the jury after hearing extensive medical evidence found plaintiffs sustained permanent injuries awarding plaintiffs compensation for future medical expenses. In Lloyd, plaintiff was awarded $50,000 for past medical expenses although the record only established past medical expense "approximately $8,000." In addition, counsels reliance on such cases as Hughes v. Ryder Truck Rental Inc., 125 AD2d 177, 508 NYS2d 442 (1st Dept. 1986) and Niemiec v. Jones 237 AD2d 267, 654 NYS2d 163(2nd Dept. 1997), is unavailing. The court in Hughes, supra, found "[s]ince basic economic loss may not be recovered in a plenary action by a covered person against another covered person" plaintiffs' award of full lost earnings was improper. Niemiec, inter alia, held that although damages for past medical expenses was supported by the evidence, the award for past medical expenses represented non-recoverable basic economic loss and therefore stricken. In sum the evidence presented in the case at bar more than adequately supported the jury's finding of future medical expenses.
Accordingly, Cahill's motion is denied.
This constitutes the decision and order of this court.