Athough there is no Colorado authority construing such a stipulation, there are two decisions dealing with the issue of ownership and holding that legal title is the important factor. See Royal Indemnity Co. v. Markley, 116 Colo. 84, 178 P.2d 672, holding coverage notwithstanding a lease by the insured who was the owner of the vehicle there involved; see also Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229, recognizing the title holder of a vehicle as the owner and as the insured notwithstanding that the undisputed evidence established that the vehicle had been purchased on behalf of, and was wholly used by a minor son. The remaining question is whether paragraph 7 of Exhibit 2 which authorizes the lessee to use the vehicle "in the same manner as though the absolute owner thereof" demands a different result.
In Greenlawn Sprinkler Corp. v. Forsberg, 170 Colo. 286, 293, 461 P.2d 22, 25, (1969) (decided under former rule), we observed that a pretrial order controls the subsequent course of a trial unless judicially modified.Accord Ferguson v. Hurford, 132 Colo. 507, 520, 290 P.2d 229, 236 (1955) (decided under former rule). Under former rule 16 the standard for modification of a pretrial order was "to prevent manifest injustice.
Padovani v. Bruchhausen, 293 F.2d at 548. Assuming without deciding that a pretrial order under C.R.C.P. 16 can have the effect of dispensing with the requirements of Rule 56 for summary judgment, we find that under the facts of this case, the pretrial order should have been modified to allow ITC to contest the lienability of the late charges to prevent manifest injustice. Ferguson v. Hurford, 132 Colo. 507, 520, 290 P.2d 229, 236 (1955). See generally 6A C. Wright, A. Miller M. Kane, Federal Practice Procedure § 1529 (1990), on the similarities and differences between Fed.R.Civ.P. 16 and 56.
A level of culpability that is more than reckless, but less than intentional, traditionally has been characterized as willful conduct. E.g. United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); see also Brown v. Spain, 171 Colo. 205, 466 P.2d 462 (1970); Ferguson v. Hurford, 132 Colo. 507, 590 P.2d 229 (1955); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954). Willful conduct, however, is the equivalent of acting "knowingly" and the criminal code so recognizes by defining these culpable mental states in identical terminology.
We, therefore, perceive no error in permitting the jury, under the circumstances of this case, to consider the officer's expert opinion concerning the speed of appellant's vehicle prior to the accident and his explanation of how the accident occurred, based upon his on-the-scene investigation of the accident. The sufficiency of the foundation evidence to establish the qualifications and knowledge of a witness to entitle him to express an opinion is a question for the trial court's determination, and in the absence of a showing of abuse of discretion this determination will not be overturned. Meader v. People, 178 Colo. 383, 497 P.2d 1010; Hampton v. People, 171 Colo. 153, 465 P.2d 394; Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229. We find no abuse of discretion in the admission of the expert testimony in this case.
In view of his training, experience and on-the-scene investigation of the physical facts involved in the accident, we cannot say that the trial court abused its discretion in permitting the officer to express his opinion concerning the speed of the vehicle at the time of the accident. Hampton v. People, 171 Colo. 153, 465 P.2d 394; Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229. The weight to be accorded his opinion was solely a question for the jury. We find no error in admitting this testimony.
Most of the authorities we have examined, including Taylor, deal with a patrolman's opinion of speed as reflected by skid marks and do not reach the question here involved. Nonetheless there is a substantial line of authority to the effect that under proper circumstances opinions such as we have here are admissible. White v. Zutell, 2 Cir., 263 F.2d 613, 614; Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229, 235-236; Ware v. Boston M.R.R., 92 N.H. 373, 31 A.2d 58, 60; Talley v. Fournier, 3 Wn. App. 808, 479 P.2d 96, 100, 101. The rationale of the holdings seems to be that it is for the trial court first to determine if the proffered expert is qualified and the proffered opinion would be of aid to the jury.
Two cases in other jurisdictions, where the facts were somewhat similar to those here, may appear to be contrary to our holding, but we think they are distinguishable. In Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 (1955), the son was living with his mother and she occasionally used the car for her own purposes. In Tuttle v. Trent, 3 Conn. Cir. 591, 222 A.2d 586 (1966), title was taken in the father's name in order to evade a statutory requirement of proof of financial responsibility by a minor prior to registration. If those cases are not so distinguishable, we decline to follow them as being contrary to the established rule of this jurisdiction.
However, defendants' affirmative defense was not renunciation (as plaintiffs after the fact wished it had been) but rather it was accord and satisfaction as delineated in the pretrial order in which plaintiffs acquiesced. The following statement from Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229, is particularly applicable to the present situation: "* * * We must assume, in the absence of an objection, that the order on pretrial conference was made in cooperation with and by assent of the parties.
R.C.P. Colo. 16 provides that a pretrial order controls the subsequent course of the action unless modified at the trial to prevent manifest injustice. In Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229 it was stated that in the absence of an objection, all matters determined at a pretrial conference have force and effect of a stipulation of the parties as to the correctness thereof and that the order controls the subsequent course of the trial, unless modified at trial to prevent manifest injustice. Here, the defendant did not object to the pretrial order, but on the contrary approved it both as to form and content.