Opinion
Case No. CL-2005-1319
02-28-2012
Paul J. Duggan, Esquire Counsel for Plaintiff, Kyle E. Skopic, Personal Representative of the Estate, etc. S. Vernon Priddy, III, Esquire Counsel for Defendants, James Wesley Tate, II, et al.
DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM RCUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHRITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A FORTKDRT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
J. BRUCE BACH
F. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. McWEENY
GAYLORD L .FINCH, JR.
STANLEY P. KLEIN
RETIRED JUD GES
February 28, 2012
Dear Counsel:
This matter came before the Court on August 29, 2011 upon the Plaintiff's Motion to Reconsider the jury verdict of August 4, 2011.
day February, 2012. _____________________
JUDGE R. TERRENCE NEY
Prior to bearing oral argument, the Court asked the parties to file briefs responding to the following question; "Specifically, where has Mergler admitted that: (1) Tate was within the scope of employment at the time of the accident, and (2) Tate caused the death of Ho, in any (and all) of the following proceedings: before the trial court in pleadings, discovery, etc.; before the Worker's Compensation Commission; before the Court of Appeals of Virginia; before the Supreme Court of Virginia; and at trial through admitted evidence."
After receipt of the parties' responsive briefs the Court took the matter under advisement. Oral argument is not necessary. The following embodies the Court's ruling.
PARTIES
Alejandro Ho ("Ho") died in a fatal car accident on April 14, 2003. The Plaintiff in this action is Kyle E. Skopic ("Skopic"), Personal Representative of the Estate of Alejandro Ho ("Estate of Ho").
The Defendants are James Wesley Tate, II ("Tate"), the driver of the car in which Ho was riding at the time of the fatal accident, and William Carter Mergler ("Mergler"), the owner of Information Technology Solutions ("ITS") the company at which both Tate and Ho were employed at the time of the accident. Juan Yanes Cambara ("Yanes") was the driver of the other car involved in the accident. He is not a party to the current action.
FACTS
Although titled a "Motion to Reconsider the Jury Verdict," the Motion is actually one to set aside the jury verdict. That description will be used throughout this opinion letter even though it is technically incorrect.
On April 14, 2003 in Fairfax County, Virginia, Ho was in a fatal automobile accident involving an automobile driven by Tate and occupied by Ho, and an automobile driven by Yanes.
Yanes testified that, while driving on Interstate 66, Tate's car approached bis from behind at twice his speed. According to Yanes, Tate subsequently pulled alongside him, began yelling at him, and threw a water bottle that struck his car. Yanes said that Tate alternated speeds to keep him from switching lanes, then braked, swerved, and finally lost control of his vehicle, causing it to overturn. Ho was ejected from the car, and he died in an ambulance on the way to a hospital.
At the time of the accident Tate and Ho were employed by ITS and Mergler. Part of Tate's job on the day of the accident was to pick up Ho from the Springfield Metro Station and drive him to a work site.
PROCEDURAL BACKGROUND
On September 24, 2003, Mergler and its insurer, Erie Insurance Exchange, filed an application with the Workers' Compensation Commission ("Commission") requesting that it "determine the compensability of the claim of Alejandra [sic] Ho, who was killed in an automobile accident on April 24, 2003, while traveling to a job site."
These facts are derived from the transcript of the Workers' Compensation Commission's Hearings of January 23, 2004, March 25, 2004, and March 26, 2004. They are consistent with the evidence introduced at trial.
On March 4, 2005 this suit was filed by the Estate of Ho against Mergler and Tate alleging negligent hiring of Tate, negligent retention of Tate, and that Mergler was responsible for Ho's death under the doctrine of respondeat superior.
The suit was stayed, over the objection of the Estate, pending the outcome of the Commission hearings.
Before the Commission Mergler contended that the accident arose out of Ho's employment and, thus, the Estate of Ho was only entitled to whatever relief the Commission afforded it.
As noted in a prior opinion from this Court, an employer filing a claim with the Workers' Compensation Commission is highly unusual. See Plummer v. Landmark Communications, Inc., 235 Va. 78, 84, 366 S.E.2d 73, 75-76 (1988). The reason for doing so, however, is not. It is clearly an effort by an employer to limit its potential exposure to the decedent's estate — here Ho's - which, pursuant to Commission schedules, is less than what may be awarded in a civil suit. See Kyle E. Skopic, Personal Representative, etc. v. James Wesley Tate, II, et al., 2009 Va. Cir LEXIS 132 (Fairfax 2009).
The Estate of Ho contended that the accident did not arise out of Ho's employment. A Commissioner found that Ho was an independent contractor and that he was not injured in the course of his employment. Mergler appealed, and the Court of Appeals remanded the matter back to the Commission to determine whether the injury arose in the course of employment. On remand, another Commissioner found that the injury did arise in the course of Ho's employment.
Virginia Workers' Compensation Commission Hearing Trans., March 25, 2004, p. 380.
This inexplicable contention - given the facts of this matter - perhaps resulted from the Estate of Ho's effort to avoid a Commission finding that the accident occurred in the course of employment and the necessarily resulting de minimus award.
That decision was appealed by the Estate of Ho to the Court of Appeals, which affirmed the Commission, finding that Ho was injured during the course of his employment.
Estate of Ho v. Information Technology Solutions, No. 2742-05-4, 2006 Va. App. LEXIS 460 (October 17, 2006). 7 id.
Mergler then filed a Special Plea in Bar to dismiss this case based on the holdings of the Commission and the Court of Appeals. The Court took the matter under advisement and ultimately overruled the motion.
The case proceeded to trial before a jury on August 1, 2011. At the conclusion of a four day trial the jury found in favor of Mergler as to whether Tate caused the accident that resulted in the death of Ho, and whether Tate was acting within the scope of his employment. The jury also found for Mergler on the issue as to whether be was guilty of Negligent Retention of Tate.
Kyle E. Skopic, Personal Representative, etc. v. James Wesley Tate, II, et al, 2009 Va. Cir LEXIS 132 (Fairfax 2009).
Kyle E. Skopic, Personal Representative, etc. v. James Wesley Tate, II, et al., CL-2005-1319, Jury Verdict Form.
The Court entered an Order on August 24, 2011 suspending the Final Order until further order of the Court so that the Court could consider the Estate of Ho's Motion for Reconsideration.
ANALYSIS
A. The Evidence at Trial Clearly Established that Tate Was Acting in the Scope of Employment When the Accident Occurred.
During the trial Mergler clearly admitted that Tate was acting in the scope of his employment when the accident occurred. Estate of Ho's counsel asked Mergler if "Mr. Tate was performing a duty for your company on April 14, 2003, when he picked up Mr. Ho from the Springfield / Franconia metro station... ? He was acting in the scope of his employment at that time, yes?" Mergler answered "yes."
That finding is not challenged by the Estate of Ho.
August 3, 2011 Trans., pp. 78-79.
Although this is the only admission during the trial on the scope of employment issue, coming from Tate's employer it is plainly sufficient to support the conclusion that Tate was acting in the scope of his employment with Mergler at the time the accident occurred. Not only was there no evidence to the contrary, but, equally as importantly, it is consistent with Mergler's position throughout the nearly nine year history of this case.
First, in his Answer to the Motion for Judgment, Mergler admitted that Tate was in the scope of his employment at the time of the accident.
Answer to Motion for Judgment, ¶¶ 2, 3, 9, 13, and 33.
Second, in his deposition testimony prior to the start of trial, Mergler unequivocally testified that Tate was in the scope of his employment on the date of the accident.
Mergler's Deposition, March 4, 2011, p. 59.
Third, in the related Declaratory Judgment Action filed in this Court, Mergler admitted that "at all times relevant to the accident, in question, James Wesley Tate, II was in the scope of his employment with William Carter Mergler, Jr., d/b/a Information Technology Solutions and transporting a co-employee, [Ho]...to a job site at All Alarm Service, Inc."
Response to Requests for Admission No. 9, p. 3.
Fourth, this Court previously found that the record from the Commission proceeding supports the conclusion that Tate was acting in the scope of employment at the time of the accident. During that proceeding Mergler testified: "it is the position of the employer and the insurer that Alejandro Ho sustained a compensable claim because he was being driven to work by a co-worker at the time of the accident."
Kyle E. Skopic, Personal Representative, etc. v. James Wesley Tate, II, et al., 2009 Va. Cir LEXIS 132 (Fairfax 2009).
Virginia Workers' Compensation Commission Hearing Trans, March 25, 2004, p. 380.
Mergler also made similar admissions in the pleadings submitted in the Commission proceeding. In his Memorandum in support of Employer's and Insurer's Claim Mergler stated that "the injuries that caused Ho's death occurred while he was acting within the course and scope of his employment for Information Technology, and arose out of the employment."
Memorandum in Support of Employer's and Insurer's Claim, p. 5.
Mergler's responses to discovery propounded during the Commission proceeding stated that Tate was acting in the scope of his employment during the accident. In the Answer of Employer and Insurer to Requests for Admission Mergler stated: "at the time of the accident, Mr. Ho was being transported to the job site by a co-employee, at the request of bis employer."
Answers to Interrogatories, p. 4.
Fifth, in his Brief in Opposition to the Estate of Ho's Appeal to the Court of Appeals, Mergler admitted that Tate was in the scope of his employment at the time of the accident. He stated that "on the day of...the accident,... Tate was compensated by ITS for transporting Ho to the job site." Mergler further admitted that "Tate was performing a required job function by transporting Ho, and received compensation from the time he picked Ho up at the Springfield metro."
Brief in Opposition to Claimant's Appeal to the Virginia Court of Appeals, p. 4, 11.
Brief of Employer and Insurer Appealing Decision of Deputy Commissioner, p. 27.
Finally, that this has always and uniformly been Mergler's position was even affirmed by his counsel at a bench conference at trial:
The Court: ...Let me ask another question of both counsel. You all [to Mergler's counsel] took the position in the Worker's Compensation Commission and before the Court of Appeals, and I assume before the Supreme Court, that this accident occurred within the scope of Mr. Ho's employment; correct? Mr. Priddy: Well, if I might — if I might answer, and I'm not going to be probably able to do a particularly good job of articulating the distinction between the scope of employment and the concept — the worker's compensation concept of the course of the employment, which is wholly related to time and place with a - with a sort of occasional bad show for you advancing your employer's business. The Court: Right, but generally speaking, if we were just talking about it and chatting about it, generally speaking that was the position taken, was it not?
Mr. Priddy: Generally. The Court: Right. Mr. Priddy: Yes, sir.That position has never changed, even at trial, until the time the evidence had been presented and oral argument began.
August 1, 2011 Trans., pp. 18-19.
Mergler now argues that although his answers, admissions, deposition testimony, Commission proceedings, evidence at trial, pleadings, and briefs submitted to the Court of Appeals and Supreme Court of Virginia may have consistently contended that Tate was in the scope of his employment at the time of his accident, they cannot be considered by this Court with regard to this motion. He offers two reasons. First, because the Rules of the Commission make plain that the evidence in its proceedings may not be used for any purpose. Second, because with the exception of the one statement made by Mergler during the trial, none of these prior statements, pleadings, admissions, or briefs were admitted into evidence at trial.
Virginia Workers' Compensation Commission Rule 1.8.
See Transilift Equip., ltd. v. Cunningham, 234 Va. 84, 360 S.E.2d 183 (1987) (finding that a party seeking to rely on the admissions has to introduce them into evidence during the trial or else they are waived).
The first contention can be disposed of easily. The Commission and appellate proceedings may be used for many purposes, including, at the very least, to challenge Mergler's testimony at trial. A witness' statement in a collateral proceeding between the identical parties and involving the identical issue should not be excluded from a court or jury where the identical parties are addressing the identical issue. Justice may be metaphorically blind, but she need not close her eyes to the plain truth. That truth here is simple - Mergler has always and consistently claimed that Tate was in the course of his employment at the time of the accident. And he, at the Workers' Compensation Commission, Court of Appeals of Virginia, and the Supreme Court of Virginia by its refusal to award an appeal, completely prevailed as to that assertion. And he so testified to the same effect at trial.
Although that would hardly have been necessary given Mergler's statement at trial that Tate was acting within the scope of his employment at the time of the accident. Supra note 7.
The doctrine of judicial estoppel prevents a party from asserting a position in a suit that is factually inconsistent with a stance taken in a prior suit. See Burch v. Grace Street Bldg. Corp., 168 Va. 329, 191 S.E. 672 (1937). It is beyond doubt that a factually inconsistent position taken by a party in a prior suit would not be excluded from a subsequent proceeding.
Secondly, the failure to offer into evidence the history of Mergler's position in prior proceedings does not change the fact that such unoffered evidence - known to the Court from its long involvement in this case is exactly consistent with Mergler's statement at trial. The jury had no evidence to the contrary.
Notwithstanding no evidence to the contrary, how could the jury possibly have found otherwise? Actually the reason may be perfectly clear. For reasons unknown to all but counsel for the Estate of Ho, he stated to the jury in closing argument that "Tate was not within the scope of his employment at the time of the accident." This extraordinary, and totally inexplicable, statement could plainly have resulted in the jury's decision. This is especially true when defense counsel, undoubtedly equally startled by the statement, shrewdly stated that he agreed with the statement of Ho's counsel. No wonder. Such an extraordinary, startling, unprovoked, and, fully unsupported statement by any evidence, could not only have stunned, at the very least, but persuaded, at the very most, the jury.
August 4, 2011 Trans., pp. 53-54, lines 22-23.
August 4, 2011 Trans, of Closing Arguments, p. 60, lines 16-19.
Yet, given the imperfect and flawed verdict form we have no clue as to what the jury actually decided. Although the form might permit the deduction that the jury could have found Tate to be within the scope of his employment but that he did not proximately cause the accident, the form itself remains fatally flawed. The scope of Tate's employment should not have been submitted to the jury at all. If the jury found, as it may have notwithstanding the evidence, but based solely on the statement of Ho's counsel in closing argument, that Tate was not within the scope of his employment, that conclusion would be plainly wrong. There was no evidence offered by either party that Tate was not within the scope of his employment. The evidence was undisputedly to the contrary.
The Plaintiffs Motion for Reconsideration is granted as to the issue of whether Tate was acting in the scope of employment. It is clear from the evidence that he was.
B. The Jury Verdict Form Was Too Ambiguous to Determine Whether the Jury Also Found that Tate was the Proximate Cause of the Accident and Ultimately Ho's Death
Notwithstanding the Court's conclusion as to the scope of Tate's employment at the time of the accident, the Motion for Reconsideration of the jury verdict must also be granted on the additional basis of the ambiguity of the Jury Verdict Form. The Jury Verdict Form is ambiguous in that it did not clearly separate the two key issues in determining liability, namely (1) whether Tate was in the scope of his employment at the time of the accident and (2) whether Tate was the proximate cause of the accident and ultimately Ho's death.
In point of fact, the scope of employment issue should not have gone to the jury at all. The verdict form was agreed to by counsel. But it was plainly the Court's error to permit it to be submitted to the jury.
Instead, the Jury Verdict Form stated "We, the jury, find as follows: On Count I, whether James Wesley Tate, II caused the accident that resulted in the death of Alejandro Ho and that James Wesley Tate, II was acting within the scope of his employment when he caused the accident." The jury checked the line "for the Defendant."
Kyle E. Skopic, Personal Representative, etc. v. James. Wesley Tate, II, et al., CL-2005-1319, Jury Verdict Form.
Yet, it is not clear whether the jury found for Mergler on both of these issues or separately, which might be necessary in order for Mergler to be relieved of liability. Put differently, the jury could have decided that Tate was not in the scope of his employment, a plainly incorrect decision for which there was no evidence. Because the evidence clearly established that Tate was acting in the scope of his employment, the only issue that required consideration was Whether Tate was the proximate cause of the accident that ultimately caused Ho's death. That should have been submitted to the jury as a discrete issue.
CONCLUSION
Because the evidence at trial unequivocally shows that Tate was in the scope of his employment at the time of the accident which resulted in Ho's death, the jury verdict finding for Mergler, as to that issue, cannot stand. The Motion for Reconsideration is granted, and the jury verdict is set aside.
In addition, because the Jury Verdict Form did not clearly indicate whether the jury found for Mergler separately as to whether Tate was acting in the scope of employment and whether Tate was the proximate cause of the accident, the Motion for Reconsideration must also be granted. Since it is clear that Tate was within the scope of his employment, there must be a new trial solely on the issue of whether Tate was the proximate cause of the accident that resulted in Ho's death, and, if so, any damages resulting therefrom.
For these reasons, the Motion for Reconsideration is granted and a new trial is ordered only as to the issues of whether Tate proximately caused the accident that resulted in Ho's death and, if necessary, damages.
An Order is enclosed.
Very truly yours,
R. Terrence Ney
Enclosure
ORDER
This matter comes before the Court upon the Plaintiff‘s Motion for Reconsideration of the Jury Verdict, which was rendered on August 4, 2011.
It APPEARING that the evidence shows that the Tate was in the scope of his employment at the time of the accident, and that the jury verdict to the contrary is erroneous, and further that the jury verdict form is ambiguous;
It is ORDERED that the Motion for Reconsideration is GRANTED, and the jury verdict for the Defendants is set aside and a new trial is ordered only as to the issues of whether Tate proximately caused the accident that resulted in Ho's death, and, if necessary, damages.
Entered on this 28
* In order to expedite the disposition of this matter, endorsement of this Order by counsel of record for the parties is waived in the discretion of the Court pursuant to Rule 1:13 of the Rules of the Supreme Court of Virginia. _______________________________________________