Opinion
No. 28841-9-II, consolidated with No. 29468-1-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No: 00-2-00762-7. Judgment or order under review. Date filed: 04/22/2002. Judge signing: Hon. F Mark McCauley.
Counsel for Appellant(s), Dan'l Wayne Bridges, Law Offices of Dan'L W Bridges, 2135 112th Ave NE Ste 120, Bellevue, WA 98004.
Counsel for Defendant(s), John Henry Wiegenstein, Attorney at Law, 19301 8th Ave NE Ste a, Poulsbo, WA 98370-6200.
Counsel for Respondent(s), Arthur Abram III Blauvelt, Attorney at Law, 601 Bank of America Bldg, PO Box 1106, Aberdeen, WA 98520-0223.
Richard E. Vroman, Attorney at Law, PO Box 1106, Aberdeen, WA 98520-0223.
Plaintiff Joyce Hatley was injured in an auto accident. Defendant Robert Mallon appeals from a judgment in her favor. We affirm.
State Route 12 runs east and west in Grays Harbor County. Near Clemons Road, it has two eastbound lanes and two westbound lanes, separated by a center divider. The speed limit is 55 miles per hour.
On July 4, 1999, Hatley was a passenger in a car driven by Richard O'Neill. They were eastbound in the right lane of State Route 12, near Clemons Road. Just after cresting a hill, they hit a dog. They stopped on the shoulder, got out, and saw the dog was still alive. While standing on the shoulder, Hatley used her hands in an attempt to warn oncoming traffic.
Mallon was also eastbound, driving a Ford Taurus. He was traveling in the left lane at about `55 or 60.' Just after cresting a hill, he saw the dog `on the outside lane of the highway[,]' standing with its `two front paws . . . on the concrete of the outside lane.' He applied his brakes `immediately[,]' `pumping [them] to warn traffic behind [him] to slow down.' He saw a Datsun coming up fast in his rear-view mirror and thought he might be rear-ended. He pulled to the left, toward the center divider, and stopped with his Taurus `in the left lane or partially in the left lane[.]' According to his own later testimony, he was never in `any danger' of hitting the dog; he `hit the brakes' and stopped because he saw the dog and `I like animals.'
Clerk's Papers (CP) at 181, 183.
CP at 181.
CP at 182.
CP at 183.
Report of Proceedings (RP) (Mar. 12-13, 2002) at 59.
CP at 88.
CP at 197.
Scott Roberts was driving his Datsun eastbound in the left lane. He states that he was following a Toyota pickup that suddenly swerved to the right. Roberts then saw the Taurus, which was stopped partially in his lane of travel, and the dog off to his right. He swerved to avoid the Taurus and struck Hatley and O'Neill, injuring both of them. According to his later testimony, he decided to swerve before seeing Hatley, O'Neill, or O'Neill's car, and the accident would not have happened if the Taurus had not been in his path.
Roberts was uninsured. As a result, Hatley received $50,000 from her own UIM carrier and another $50,000 from O'Neill's UIM carrier.
About a year after the accident, Hatley sued Roberts, Mallon, and the owners of the dog. Roberts defaulted. The owners of the dog settled and were dismissed before trial. Mallon answered and contested.
Before trial, Hatley moved for partial summary judgment on the issue of whether Mallon had been negligent. The trial court granted the motion, stating orally:
I read the testimony of Mr. Mallon, and . . . I just have a hard time seeing how a jury could come to a conclusion that he was not negligent, on a high-speed highway, coming to a complete stop. If there was a person out there on the highway walking in that lane — but I, I mean, I think generally the training of all drivers is you don't stop for — I mean, if you can't safely stop for a dog, you don't. Stopping in, I guess, what we consider the passing lane of a two-lane highway I think is negligence as a matter of law and I am going to so rule.
CP at 30; Br. of Resp't at 19-20.
Before trial, Hatley moved for partial summary judgment on the issue of whether her own conduct, if negligent, was a proximate cause of the accident. The trial court granted this motion also, reasoning as follows:
If either Mr. Mallon or Mr. Roberts had testified that Ms. Hatley's actions had affected their driving, I would not be inclined to grant the motion. After a careful review of their testimony, however, it is clear that Ms. Hatley's presence on the side of the road was a condition rather than a legal cause of the accident.
CP at 330.
Hatley proceeded to trial against Mallon. At the end of the evidence, the trial court instructed the jury that Roberts had been negligent; that Roberts's negligence was a proximate cause of the accident; and that Mallon had been negligent. The court instructed the jury to decide whether the dog's owners had been negligent; whether their negligence was a proximate cause; and whether Mallon's negligence was a proximate cause. The court also told the jury to allocate fault among Roberts, Mallon, and the dog's owners, and to determine the amount of plaintiff's damages. The court did not ask the jury to assess Hatley's conduct, having already ruled that her negligence, if any, was not a proximate cause.
After deliberating, the jury found that the dog's owners had not been negligent and that Mallon's negligence was a proximate cause of the accident. The jury found that Hatley had suffered past economic damages of $169,066, future economic damages of $50,000, and non-economic damages of $250,000. The jury allocated fault 40% to Roberts and 60% to Mallon.
After trial, Mallon moved for an order crediting him, rather than Hatley, with the $100,000 Hatley had already received from her own and O'Neill's UIM carriers. The trial court denied the motion.
After trial, Hatley moved for prejudgment interest on her `liquidated damages' of $169,066. The trial court granted the motion and awarded $53,454 in prejudgment interest. Citing Weyerhaeuser Company v. Commercial Union Insurance Company, which describes an `unliquidated' claim as one that `depend[s] upon the opinion or discretion of the judge or jury as to whether a larger or smaller amount should be allowed[,]' the trial court reasoned:
CP at 466, 469.
142 Wn.2d 654, 686, 15 P.3d 115 (2000); CP at 538.
In the present case, neither this court nor the jury exercised discretion regarding the medical bills. Mrs. Hatley sustained severe injuries that required substantial medical care resulting in substantial medical bills. In response to requests for admissions, the defense admitted that the medical bills were reasonable and necessary charges, and in fact stated during oral argument that a medical expert for the defense reviewed the bills and found them to be reasonable and necessary charges for the medical services provided for Mrs. Hatley. . . .
I can see no logical distinction between the facts and circumstances discussed in Prier, from the facts of this case. In Prier, the damage award did not depend upon the opinion or discretion of the judge or jury as is the case here. In Prier, the claim was for the cost of a contractor repairing an ice rink. In the present case, the claim is for the cost of medical providers repairing the injured body of Mrs. Hatley. In Hanson [sic], the Washington Supreme Court stated that it did not foreclose prejudgment interest awards [in] negligence actions.
Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 442 P.2d 621 (1968).
Hansen v. Rothaus, 107 Wn.2d 468, 730 P.2d 662 (1986).
CP at 539.
That same day, the court entered judgment against Roberts and Mallon, jointly and severally. After statutory costs were added, the judgment totaled $522,845.
Mallon makes several claims on appeal. He argues that the trial court erred (1) by holding that he was negligent as a matter of law; (2) by holding that Hatley's conduct, if negligent, was not a proximate cause as a matter of law; (3) by declining to credit him with the $100,000 Hatley received from her own and O'Neill's insurance carriers; (4) by awarding pre-judgment interest to Hatley; (5) by admitting the testimony of an accident reconstructionist whom Hatley called at trial; and (6) by refusing to instruct on `the superseding negligence of co-defendant Roberts[.]'
Br. of Appellant at 47 (emphasis omitted).
I.
Mallon argues that the trial court erred by granting summary judgment on the issue of his negligence. When considering a motion for summary judgment, a trial court must take the evidence in the light most favorable to the nonmoving party. The trial court may grant summary judgment if, but only if, `the facts are such that all reasonable persons must draw the same conclusion from them[.]' A party is negligent if he or she does an act that a reasonably careful person would not do under the same or similar circumstances, or omits an act that a reasonably careful person would have done under the same or similar circumstances.
Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Hough v. Ballard, 108 Wn. App. 272, 279, 31 P.3d 6 (2001).
Burkhart v. Harrod, 110 Wn.2d 381, 396, 755 P.2d 759 (1988); Sys. Tank Lines, Inc. v. Dixon, 47 Wn.2d 147, 151, 286 P.2d 704 (1955).
In this case, Mallon stopped his car in the fast lane of SR 12, even though he was not in `any danger' of hitting the dog, a person, or another vehicle, and even though he had just crested a hill that obstructed the view of following drivers. This was clearly not reasonable, as he could have continued until he could safely change lanes and pull over on the right-hand shoulder, or until he found another way to stop safely. The only reasonable inference available from this record is that he stopped without exercising ordinary care, and we think that all reasonable minds would so find. Like the trial court, we conclude Mallon was negligent as a matter of law.
II.
Mallon argues that the trial court erred by granting summary judgment on the issue of whether Hatley's conduct was a proximate cause of the accident. We apply the same summary judgment rules as before, asking whether Hatley's conduct was a cause which in a direct sequence, unbroken by any new independent cause, produces the injuries complained of and without which such injuries would not have happened.
Chhuth v. George, 43 Wn. App. 640, 648-49, 719 P.2d 562, review denied, 106 Wn.2d 1007 (1986); Daly v. Lynch, 24 Wn. App. 69, 75, 600 P.2d 592 (1979).
Here, Mallon stopped because he was concerned about the dog's well-being. He did not stop because he himself was in danger of hitting the dog, nor did he stop because of anything Hatley did. Roberts swerved because of Mallon, not because of Hatley. Roberts saw the dog only when he was passing it. Neither Mallon's conduct nor Roberts's conduct was affected by Hatley's conduct; this record will not support an inference that Hatley's conduct contributed to her own injuries; and the trial court did not err by holding that Hatley's conduct was not a proximate cause.
III.
Mallon argues that he should be credited with the $100,000 Hatley received in UIM payments. In other words, he claims that the $100,000 in UIM payments should be counted as if he had already paid the first $100,000 on the judgment of $522,845, leaving only $422,845 as his remaining balance. Otherwise, he reasons, Hatley will have `the ability to obtain $622,845 . . . $100,000 more than what her damage is.'
Br. of Appellant at 43 (underlining omitted).
Subject to the collateral source rule, an injured claimant is entitled to receive and retain 100 percent, but not more than 100 percent, of his or her legally recoverable damages. The collateral source rule states that a claimant can receive and retain payments from a source independent of the tortfeasor, even if the claimant thereby receives and retains more than 100 percent of his or her legally recoverable damages, because, `as between an injured plaintiff and a defendant-wrongdoer, the plaintiff is the appropriate one to receive the windfall.' Here then, we ask two questions: (A) Has Hatley received more than 100 percent of her legally recoverable damages? (B) If so, is she or Mallon entitled to the excess?
Winters v. State Farm Mut. Auto. Ins. Co., 144 Wn.2d 869, 876, 31 P.3d 1164 (2001); Mahler v. Szucs, 135 Wn.2d 398, 416-17, 957 P.2d 632 (1998); Keenan v. Indus. Indem. Ins. Co. of the N.W., 108 Wn.2d 314, 318-19, 738 P.2d 270 (1987), overruled on other grounds, Price v. Farmers Ins. Co. of Wash., 133 Wn.2d 490, (1997); Hamilton v. Farmers Ins. Co. of Wash., 107 Wn.2d 721, 727, 731, 735, 733 P.2d 213 (1987); Britton v. Safeco Ins. Co. of Am., 104 Wn.2d 518, 530-31, 707 P.2d 125 (1985); Thiringer v. Am. Motors Ins. Co., 91 Wn.2d 215, 219, 588 P.2d 191 (1978); Barney v. Safeco Ins. Co. of Am., 73 Wn. App. 426, 428, 869 P.2d 1093 (1994), overruled on other grounds, Price v. Farmers Ins. Co. of Wash., 133 Wn.2d 490 (1997); Taxter v. Safeco Ins. Co. of Am., 44 Wn. App. 121, 131, 721 P.2d 972 (1986), review denied, 108 Wn.2d 1037 (1987).
Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 798, 953 P.2d 800 (1998); Ciminski v. SCI Corp., 90 Wn.2d 802, 804, 585 P.2d 1182 (1978); Maziarski v. Bair, 83 Wn. App. 835, 841 n. 8, 924 P.2d 409 (1996).
Xieng v. Peoples Nat'l Bank of Wash., 120 Wn.2d 512, 523, 844 P.2d 389 (1993).
This record does not show that Hatley will receive more than 100 percent of her legally recoverable damages. If Mallon pays the judgment in full, Hatley will have received at least temporarily 100 percent of her legally recoverable damages plus an extra $100,000 from the UIM carriers. After Mallon pays the judgment in full, however, the UIM carriers can require Hatley to reimburse them. We cannot tell whether they will so require, but if they do, Hatley will not receive more than 100 percent of her legally recoverable damages.
Keenan, 108 Wn.2d at 318-19; Thiringer, 91 Wn.2d at 219; Taxter, 44 Wn. App. at 131.
If the UIM carriers elect not to seek reimbursement, Hatley will receive an extra $100,000. The extra money will have come from Hatley's and O'Neill's UIM carriers, each of whom is a source independent of Mallon. It either will provide Hatley with a windfall (she will retain $100,000 more than the damages she is legally entitled to recover) or it will provide Mallon with a windfall (he will pay $100,000 less than the damages for which he is legally responsible). The collateral source rule provides, as already seen, that when payments from a `collateral source' will generate a windfall to either the injured claimant or the tortfeasor, the injured claimant should receive that windfall. Thus, even if the UIM carriers elect not to seek reimbursement, Hatley, not Mallon, should receive the excess.
IV.
Mallon claims that the trial court erred by awarding prejudgment interest. We disagree for the reasons stated by the trial court. Prejudgment interest is allowable when a claim is `liquidated' rather than `unliquidated.' A claim is liquidated when, even though there may be an issue on whether it should be allowed, there is no issue concerning its amount. A claim is `unliquidated' when its amount is a matter for the trier of fact's `opinion or discretion.' It makes no difference whether the claim sounds in tort or contract.
Hansen, 107 Wn.2d at 472; Prier, 74 Wn.2d at 32; Egerer v. CSR W., L.L.C., 116 Wn. App. 645, 653, 67 P.3d 1128 (2003).
Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d at 686; Prier, 74 Wn.2d at 33.
Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d at 686.
Hansen, 107 Wn.2d at 472.
In this case, the only issue regarding Hatley's economic damages was whether Mallon should be held legally responsible. He admitted from the outset that if he was legally responsible, he owed such damages in the amounts she was claiming. When the jury found him responsible, it had no discretion on the amount it was to award. Hatley's claim for economic damages was liquidated under the circumstances present here, and the trial court did not err by allowing prejudgment interest.
V.
Mallon argues that the trial court was required to exclude an accident reconstructionist named Cassidy, and that it erred by not doing so. Mallon complains that even though Cassidy was qualified, he did not have enough information to form an opinion, and he selectively used facts favorable to Hatley instead of facts favorable to the defense.
The trial court has broad discretion when deciding whether expert testimony will assist the trier of fact. An expert may rely on facts admitted in the record, or even on facts not admitted but reasonably relied on by other experts in the same field. An expert may deal with conflicts in the facts by assuming facts that favor one side. Mallon has not shown that Cassidy violated these rules, and the trial court had discretion to admit his testimony.
ER 702; Miller v. Likins, 109 Wn. App. 140, 147-48, 34 P.3d 835 (2001); Hiner v. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 959 P.2d 1158 (1998), review granted, 137 Wn.2d 1013, rev'd in part, 138 Wn.2d 248 (1999), and recons. denied, 1999 WL 604471.
ER 703; Riccobono v. Pierce County, 92 Wn. App. 254, 267, 966 P.2d 327 (1998).
Tokarz v. Ford Motor Co., 8 Wn. App. 645, 653-55, 508 P.2d 1370 (1973).
Mallon relies on Miller v. Likins, 109 Wn. App. 140, 34 P.3d 835 (2001). It holds that a trial court is permitted to exclude, not that a trial court is required to exclude. See Miller v. Likins, 109 Wn. App. at 149-50 (trial court did not abuse its discretion by excluding expert testimony). To say that a trial court is permitted to exclude, as Likins did, is not to say that a trial court is required to exclude, as Mallon contends here. With experts, a trial court often has discretion to admit or exclude; that is the case here; and Mallon's reliance on Likins is misplaced.
VI.
Mallon argues that the trial court erred by giving Court's Instruction 2 instead of his Proposed Instruction 19. Proposed Instruction 19 would have said:
You are directed that defendant Scott Roberts was negligent on July 4, 1999, by driving his vehicle on a public highway in a manner which caused him to lose control of his vehicle, veer onto the right shoulder of the highway, and strike the plaintiff standing on the shoulder. You are further directed that defendant Roberts' [sic] conduct was a proximate cause of injuries and damage to plaintiff.
You are further directed that defendant Robert Mallon was negligent on July 4, 1999, by bringing the vehicle he was driving to a stop in the left lane of a public highway.
The plaintiff claims that defendant Mallon's conduct was also a proximate cause of injuries and damage to plaintiff. Defendant Mallon denies these claims.
In addition, defendant Mallon claims, and plaintiff denies the following: that the negligence of defendant Roberts was an independent intervening cause which superceded the role of any negligence by defendant Mallon in proximately causing injuries and damage to the plaintiff.
CP at 441.
Instead of giving Mallon's proposed instruction, the trial court gave Court's Instruction 2. It read:
The court has determined that defendant Scott Roberts was negligent on July 4, 1999, by driving his vehicle on a public highway in a manner which caused him to strike the plaintiff standing on the shoulder. You are further directed that defendant Robert's [sic] conduct was a proximate cause of injuries and damages to plaintiff.
The court has determined that defendant Robert Mallon was negligent on July 4, 1999, while operating his vehicle in the left lane of a public highway.
The plaintiff claims that defendant Mallon's conduct was a proximate cause of injuries and damage to plaintiff. Defendant Mallon denies these claims.
In addition, defendant Mallon claims, and plaintiff denies the following: that the negligence of defendant Roberts was an independent intervening cause which superceded the role of any negligence by defendant Mallon in proximately causing injuries and damage to the plaintiff.
CP at 454-55.
The trial judge explained why he gave Court's Instruction 2 instead of Mallon's Proposed Instruction 19. He stated:
On Instruction No. 2 I didn't get into more detail regarding the driving of Mr. Roberts for the same reason I didn't get into more detail regarding the driving of Mr. Mallon. I think, since they're going to have to put percentages on it, I don't want to comment on the evidence. I will let you argue the details of their driving.
RP (Mar. 14-15, 2002) at 130-31.
The only significant difference between Court's Instruction 2 and Mallon's Proposed Instruction 19 was in the wording of the first paragraph. A trial court has discretion to word the jury instructions in a fair and balanced way, and by doing so it generally avoids commenting on the evidence. That is all the trial court did here, and it did not abuse its discretion.
See Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992) (trial court has considerable discretion in deciding how jury instructions will be worded); Gammon v. Clark Equip. Co., 104 Wn.2d 613, 617, 707 P.2d 685 (1985) (trial court has considerable discretion in deciding how jury instructions will be worded).
See Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 38, 864 P.2d 921 (1993) (trial court does not impermissibly comment on the evidence where jury instructions accurately state the law).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and QUINN-BRINTNALL, A.C.J., concur.