Opinion
Docket No. 22213
Filed June 17, 1997 Affirmed. See Tuttle v. Wayment Farms, Inc., 131 Idaho 105, January 13, 1998.
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. George Granata, Jr., District Judge.
Orders denying an additur or a new trial in personal injury action, affirmed; offset award to Wayment Farms, reversed.
Schlender Chartered, Hailey, for appellant. E. Lee Schlender argued.
Benoit, Alexander, Sinclair, Harwood High, Twin Falls, for respondent Wayment Farms, Inc. Thomas B. High argued.
Hall, Farley, Oberrecht Blanton, Boise, for respondent Sudenga Industries, Inc.
SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED MAY 1, 1997, IS HEREBY WITHDRAWN.
This appeal is taken from several post-trial orders in Daryl Tuttle's personal injury action against the manufacturer of a grain auger, the installer of the auger, and the employer who hired Tuttle to operate the auger on a dairy farm in Burley, Idaho. Tuttle contends that the damage award against the employer, Wayment Farms, Inc., was inadequate or, alternatively, was not supported by the evidence presented at trial. He asserts that the award was erroneously reduced, first, by a finding that he was 40% negligent and second, by applying as an offset the amount paid to him in settlement by the installer, Wes's Inc., prior to trial. He also asserts that the trial court erred in ordering the payment of costs to the manufacturer, Sudenga Industries, Inc., from the monies paid in satisfaction of the judgment by Wayment Farms, Inc. For the reasons explained below, we affirm the district court orders denying additur or a new trial and the order for payment of Sudenga's costs, but we reverse the district court's decision granting the offset for the settlement payment.
The facts surrounding Tuttle's accident, which resulted in serious injuries to Tuttle's feet, and the proceedings leading up to the trial in this case are set forth in Tuttle v. Sudenga Industries, Inc., 125 Idaho 145, 868 P.2d 473 (1993). By the time of trial in March of 1995, Tuttle had accepted a settlement offer from one of the defendants, Wes's Inc. That defendant was then dismissed from the lawsuit. Wes's Inc. was nevertheless listed on the special verdict form, and the jury determined liability as follows:
Party Percent of Liability
Wayment Farms, Inc. 60% Sudenga Industries, Inc. 0% Wes's Inc. 0% Daryl Tuttle 40%
The jury awarded damages in the amount of $175,000, but this amount was reduced in accordance with Tuttle's proportion of negligence. Tuttle's motion for additur or new trial was denied. The trial court then granted Wayment Farms' motion to treat the settlement from Wes's Inc. as an offset, further reducing the damage award. Tuttle appealed from these post-trial orders. Following the trial court's order awarding payment of costs to Sudenga Industries from the judgment amount paid into the court by Wayment Farms, Tuttle filed an amended notice of appeal.
DISCUSSION
I. Motion for New Trial or Additur
In his motion for new trial, Tuttle asserted, under I.R.C.P. 59(a)(6), that there was insufficient evidence to sustain the jury verdict, in particular the assessment of 40% negligence to him. Under I.R.C.P. 59(a)(5), Tuttle asserted that the damage award was inadequate and urged as an alternative that the trial court grant an additur.
The denial of a motion for new trial is reviewed under an abuse of discretion standard. We will uphold the decision of the trial court ruling on a motion for new trial unless the court has manifestly abused the wide discretion vested in it. Quick v. Crane, 111 Idaho 759, 770, 727 P.2d 1187, 1198 (1986). To ascertain whether the trial court abused its discretion, we review the circumstances of the case and the grounds upon which the trial court based its decision. Sheets v. Agro-West, Inc., 104 Idaho 880, 884, 664 P.2d 787, 791 (Ct.App. 1983). In determining whether there was an abuse of discretion by the trial court, this Court must consider (1) whether the trial court correctly perceived the issue as one of discretion, (2) whether the trial court acted within the boundaries of such discretion and consistently with any legal standards applicable to specific choices, and (3) whether the trial court reached its decision through an exercise of reason. Bott v. Idaho State Bldg. Authority, 128 Idaho 580, 589, 917 P.2d 737, 746 (1996).
In deciding whether to grant or deny a new trial pursuant to I.R.C.P. 59(a)(6), the trial court is to weigh all the evidence, including the judge's own consideration of the credibility of the witnesses, and determine whether the verdict is supported by the evidence. Bott v. Idaho State Bldg. Authority, 128 Idaho at 590, 917 P.2d at 747; Sanchez v. Galey, 112 Idaho 609, 614, 733 P.2d 1234, 1239 (1986); Dineen v. Finch, 100 Idaho 620, 623, 603 P.2d 575, 578 (1979). A trial court may grant a new trial when it is satisfied the verdict is not supported by, or is contrary to, the evidence, or is convinced the verdict is not in accord with the clear weight of the evidence and that the ends of justice would be subserved by vacating it, or when the verdict is not in accord with either law or justice. Quick v. Crane, 111 Idaho at 767, 727 P.2d at 1198 (1986), citing Blaine v. Byers, 91 Idaho 665, 671, 429 P.2d 397, 403 (1967); Keyser v. Garner, 129 Idaho 112, 119, 922 P.2d 409, 416 (Ct.App. 1996). As the next step, the trial court is to consider whether a different result would follow in a retrial. Keyser, supra, 129 Idaho at 119, 922 P.2d at 416, citing Litchfield v. Nelson, 122 Idaho 416, 422, 835 P.2d 651, 657 (Ct.App. 1992).
Here, the district court determined that there was sufficient evidence to support the jury finding of 40% negligence on the part of the plaintiff and denied the motion pursuant to I.R.C.P. 59(a)(6). After considering the evidence which had been presented to the jury, the district court stated:
The plaintiff was aware of the removal of the covers of the auger and had worked around them for some time. Further, the plaintiff was planning on leaving for the weekend and could have been trying to finish his work too quickly. Furthermore, the plaintiff was attempting to move the tube auger without help. Therefore, this court concludes that there was sufficient evidence to support the jury verdict and that injustice will not occur if the verdict stands.
It is evident that, having given full respect to the jury's findings, the trial judge on the entire record was not left with the definite and firm conviction that a mistake had been committed. See Quick v. Crane, 111 Idaho at 768, 727 P.2d at 1196, quoting Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, 11 FEDERAL PRACTICE AND PROCEDURE Section 2806, at 49 (1973 Supp. 1985). We are satisfied that the trial court appropriately recognized its discretionary authority, applied the legal standards governing motions for new trial pursuant to I.R.C.P. 59(a)(6), and reached its decision with an exercise of reason. Thus, we conclude that the district court did not abuse its discretion in denying a new trial on this basis.
Idaho Rule of Civil Procedure 59(a)(5) applies to motions for remittitur, additur, or a new trial on the issue of damages based upon excessive or inadequate damages. Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1986). The rule applies when damages are so excessive or inadequate as to appear to be the result of partiality by the jury. Pratton v. Gage, 122 Idaho 848, 851, 840 P.2d 392, 395 (1992); O'Dell v. Basabe, 119 Idaho 796, 804, 810 P.2d 1082, 1090 (1991). On a motion for new trial on this ground, the trial court is to weigh the evidence and then compare the jury's award of damages to what the judge would have awarded if there were no jury. Bott, 128 Idaho at 590, 917 P.2d at 747, citing Sanchez v. Galey, 112 Idaho at 614, 733 P.2d at 1239 (1986). If the disparity between the two awards is so great that it appears to the trial court the award was rendered under the influence of passion or prejudice, then a new trial should be granted. Id.; Pratton v. Gage, 122 Idaho at 853, 840 P.2d at 397 (1992). It has been held that "the disparity must `shock the conscience' of the trial judge or lead [the judge] to conclude that it would be `unconscionable' to let the damage award stand as the jury set it. Quick v. Crane, 111 Idaho at 769-770, 727 P.2d at 1197-98.
Further, the court in Quick v. Crane recognized a motion for remittitur of damages as purely an alternative to I.R.C.P. 59(a)(5). Id. at 770, 727 P.2d at 1198. The trial judge can only grant an additur or remittitur by offering a new trial as an alternative, and then only if the court determines that the disparity between the jury's award and the court's evaluation of damages was the result of passion or prejudice. Howes v. Fultz, 115 Idaho 681, 686, 769 P.2d 558, 563 (1989).
Tuttle argues on appeal that the trial court gave undue weight to the testimony that Tuttle was able to do "medium to heavy work," and disregarded the expert testimony as to Tuttle's projected future loss of income. However, "it is the judge's sense of a disparity and the reason for it, rather than the dollar difference per se, which is critical to his proper exercise of discretion." Sawyer v. Claar, 115 Idaho 322, 324, 766 P.2d 792, 794 (Ct.App. 1988). In this case, the trial court concluded that the difference between the amount the court would have awarded, in comparison to the jury's verdict of $175,000, was not so inadequate as to appear that the jury's award was given under passion or prejudice. The trial court ruled that the verdict was not so disparate from the court's determination as to shock the court's conscience, and described the verdict as reasonable and fair in light of the evidence produced at trial. Here, the required finding that the award was the result of passion or prejudice was not present. Accordingly, we find no error in the exercise of the trial court's discretion in denying the motion for new trial or for an addititur under I.R.C.P. 59(a)(5).
II. Wayment Farms, Inc.'s Motion for Offset
Tuttle argues that the district court erred when it reduced the jury's award, less Tuttle's proportionate share of fault, by the amount of the settlement from Wes's Inc. which was made prior to the start of trial. At the time the release agreement was entered into in 1993, Tuttle asserts that no offset against the amount of the judgment toward another tortfeasor was authorized under I.C. Section 6-805(2), unless the release specified that the settlement was to reduce the plaintiff's claim against the other tortfeasor. Because the release in question did not by express terms provide for such a reduction, Tuttle argues that Wayment Farms was not entitled to an offset for the settlement from Wes's Inc.
Idaho Code Section 6-805(2), enacted by the legislature in 1991, provides:
(2) A release by the injured person of one (1) or more tortfeasors who are not jointly and severally liable to the injured person, whether before or after judgment, does not discharge another tortfeasor or reduce the claim against another tortfeasor unless the release so provides and the negligence or comparative responsibility of the tortfeasor receiving the release is presented to and considered by the finder of fact, whether or not the finder of fact apportions responsibility to the tortfeasor receiving the release.
In its motion for setoff, Wayment Farms claimed that I.C. Sections 6-805 and -1606 provided that a release from one tortfeasor reduced the amount of the jury award, and it sought to have the verdict reduced by the $38,500 paid by Wes's Inc. However, Wayment Farms argued that its right to a setoff was derived from I.C. Section 6-805 as it existed when the action was filed in June 1991, citing Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986) and Curtis v. Canyon Highway Dist. No. 4, 122 Idaho 73, 831 P.2d 541 (1992), where the court in each case upheld an offset based on I.C. Section 6-805 prior to its 1991 amendment. Wayment Farms claimed that to be denied the setoff based on the statute as it existed when the release was executed in 1993 would constitute an unlawful retroactive application of the amendment to the statute which became effective July 1, 1991.
The analysis by the district court began with consideration of I.C. Section 6-1606. The district court found that the settlement from Wes's Inc. qualified as a collateral source, which finding in turn supported the district court's reduction of the award to Tuttle by the amount of the settlement. This analysis was incomplete, however, in that before reducing the award, it was incumbent for the district court to look to I.C. Section 6-805 which deals specifically with the effect of a release of one tortfeasor on the liability of other tortfeasors. In the face of conflicting statutes which cover the same subject matter, the more specific will prevail. Ausman v. State, 124 Idaho 839, 864 P.2d 1126 (1993); State v. Maland, 124 Idaho 537, 861 P.2d 107 (Ct.App. 1993). Only if the conditions of I.C. Section 6-805 are met with respect to the contents of the release is any reduction of the award authorized.
Under I.C. Section 6-805(2), any reduction of the claim against another tortfeasor (who is not a joint tortfeasor under I.C. Section 6-803) must be expressly provided for in the release to the settling defendant. The district court recognized that the release to Wes's Inc. did not expressly provide for reduction of the claim against the other tortfeasors, as prescribed by the version of I.C. Section 6-805 in effect at the time the release was signed. Finding that the amendment to the statute was subsequent to the filing date of Tuttle's action and that the amendment had effected substantive (not remedial or procedural) changes, the district court held that the pre-amendment version of I.C. Section 6-805 governed in this case and operated to reduce the claim against Wayment Farms in the amount of the settlement with Wes's Inc.
It has been held that statutes governing a release or covenant not to sue, and claims for contribution in an action involving joint tortfeasors are remedial and therefore retrospective. Primoff v. Duell, 381 N.Y.S.2d 947, 949 (1976); State ex rel. Simmerock v. Brackmann, 714 S.W.2d 938, 942-43 (Mo.App. 1986) (statute in question facially contemplates its application to releases executed following enactment). The Uniform Contribution Among Tort Feasors Act (UCATA), from which is derived the statutory language of I.C. Sections 6-805, 806, has been held not to affect substantive rights. Simmerock, 714 S.W.2d at 942, citing Aherron v. St. John's Mercy Medical Center, et al., 713 S.W.2d 498, 502 (Mo. 1986). As in Primoff and Simmerock, the settlement here was made long after the effective date of these statutes, although the cause of action arose prior thereto. We are in agreement with the rationale of the Primoff court that: "It must be held that the settlement was made in contemplation of the law as it was on the date of settlement." Primoff, 381 N.Y.S.2d at 950.
The terms regarding the extension of the benefit of a release from one joint tortfeasor to any other joint tortfeasor unless the release "so provides, or "expressly so provides," or "otherwise provides" all apparently derive from versions of Section 4 of the Uniform Contribution Among Tortfeasors Act (UCATA)[ (1955 Revision), 12 U.L.A. 57 (1975)] or may also derive from Section 6 of the Uniform Comparative Fault Act. Anne M. Payne, Annotation, Release of Joint Tortfeasor, 6 ALR 5th 883, Section 2[a], at 915 n. 19 (1992).
In Simmerock, the court also noted that the release of liability on the authority of the statute does not constitute a retrospective application of the statute because the defendant's substantive right to contribution or indemnity does not arise until such time as he is found liable for and pays more than his proportionate share of a judgment in the underlying suit. Simmerock, 714 S.W.2d at 943. See generally Howard J. Alperin, Annotation, Tortfeasor's General Release of Cotortfeasor as Affecting Former's Right to Contribution Against Cotortfeasor, 34 ALR3d 1374, 1378 (1970) (noting the two views that (1) the general release could not have discharged a claim which had not yet accrued at the time the release was executed and (2) that the right to contribution is inchoate, in other words, that it has an existence in law the instant the concurring acts of the tortfeasors give to the injured party a cause of action against them).
We therefore reject Wayment Farms' claim that application of the 1991 amendment to I.C. Section 6-805 was a violation of rights which had vested prior to the statute's amendment. Pursuant to I.C. Section 6-805(2) as it existed at the time of the settlement, the release to Wes's Inc., which failed to provide for release of other tortfeasors, precludes reduction of the jury award by the settlement amount.
As its basis for awarding the offset to Wayment Farms, the district court relied on I.C. Section 6-1606, which prohibits double recoveries from collateral sources. Because the settlement from Wes's Inc. represented partial compensation for injuries suffered by Tuttle, the district court concluded that the amount of the settlement should be deducted from the total damages awarded by the jury regardless of the fact that Wes's Inc. was assessed with no liability for Tuttle's injuries.
Idaho Code Section 6-1606 provides in relevant part:
In any action for personal injury or property damage, a judgment may be entered for the claimant only for damages which exceed amounts received by the claimant from collateral sources as compensation for the personal injury or property damage, whether from private, group or governmental sources, and whether contributory or noncontributory. . . . Such award shall be reduced by the court to the extent the award includes compensation for damages which have been compensated independently from collateral sources.
A collateral source is defined as compensation from a source wholly independent of the tortfeasor, BLACK'S LAW DICTIONARY, 262 (6th ed. 1990), for example, sickness or health insurance or worker's compensation insurance payments. A settlement by a party such as Wes's Inc. in this case, against whom a tort action has been brought in good faith and not just for the purpose of avoiding application of I.C. Section 6-1606, is outside of the definition of collateral source and thus, an improper basis for an offset in favor of Wayment Farms. We hold, therefore, that the operation of I.C. Section 6-1606 to allow a reduction of Tuttle's award was not triggered, and we reverse the offset granted by the district court to Wayment Farms.
III. Costs Awarded to Sudenga Industries, Inc.
Tuttle argues that the district court erred in granting Sudenga Industries' motion for payment of its cost award from the funds paid into the district court by Wayment Farms in satisfaction of the judgment in favor of Tuttle. There was no contest of the award itself in the district court, and no issue is raised on appeal concerning the jury's finding of 0% negligence on the part of Sudenga Industries. We find meritless Tuttle's argument that the funds made payable to him by Wayment Farms in satisfaction of the judgment could not be used to satisfy the cost award to Sudenga Industries. We conclude that pursuit of this appeal with regard to Sudenga Industries was frivolous and without foundation, and we award attorney fees on appeal to Sudenga Industries under I.C. Section 12-121, together with its costs.
As to the balance of the appeal, this Court is not left with the abiding belief that it was brought, pursued or defended frivolously or without foundation. We decline to award attorney fees to either party under I.C. Section 12-121, but we award costs to Tuttle as against the respondent, Wayment Farms, Inc.
Judges LANSING and PERRY, CONCUR.