Opinion
No. 12–P–268.
2013-04-4
Krystal SWANGREN & another v. Scott BARRON & others.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Krystal and David Swangren appeal after a jury verdict that found: (1) defendant Scott Barron did not have consent to drive David Swangren's vehicle on November 24, 2004; and (2) defendants Safety Insurance Company (Safety) and Amica Mutual Insurance Company (Amica) had no contractual obligations to indemnify or defend Barron in the suit brought by the plaintiffs. The plaintiffs allege that the motion judge erred by entering a protective order during discovery that prevented them from deposing Elaine M. Buckley and Stephen M.A. Woodworth, defense counsel representing Amica and Safety, respectively, in the immediate case. According to the plaintiffs' argument, the exclusion of this allegedly material testimony warrants vacating the jury's verdict, reversing judgment for the defendants, and remanding the case for a new trial. Amica argues that the plaintiffs have failed to preserve for appeal any objection to the motion judge's ruling, either by filing a motion for reconsideration or subpoenaing the attorneys to testify at trial. We affirm.
Prior to trial, the issues relating to coverage were bifurcated from the negligence claims against Barron. The only issues presented to the jury in this trial were those relating to insurance coverage.
The plaintiffs sought to inquire whether defense counsel had asked, in their examinations of David and Karen Swangren under oath, if either had impliedly consented to allowing Barron to drive the car—and normally driven by their daughter Krystal—on the night of the accident in question.
Assuming that the plaintiffs' claim is raised properly on appeal, the motion judge's findings are neither clearly erroneous nor constitute an abuse of his discretion. See Matter of a Subpoena Duces Tecum, 445 Mass. 685, 687 (2006); Chan v. Chen, 70 Mass.App.Ct. 79, 84 (2007). The evidence regarding whether there was implied consent to allow others (including Barron) to drive the car in question could have been obtained from other testimony. The plaintiffs' counsel did not require the testimony of defense counsel to prove the ultimate question whether Barron was legally operating the car at the time of the accident. Indeed, defense counsel could have offered no additional information in their depositions than what the plaintiffs similarly could provide. Defense counsel's choice of questions and conduct during their initial conversations with the plaintiffs had no connection to the jury's resolution of the ultimate issue of coverage. As such, the testimony sought in the depositions was irrelevant and therefore properly excluded as a result of the protective order. See Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 265–266 (2001).
Safety's request for damages under Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), is denied.
Judgment entered May 24, 2011, affirmed.