Opinion
No. 49244-6-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 98-2-14965-5. Judgment or order under review. Date filed: 08/29/2001. Judge signing: Hon. Donald Haley.
Counsel for Appellant(s), Ann Pearl Owen, Ann Pearl Owen PS, 2407 14th Ave S, Seattle, WA 98144-5014.
Counsel for Respondent(s), Eric Louis Freise, Attorney at Law, 108 S Washington St. Ste 400, Seattle, WA 98104-3433.
Jill Renee Skinner, Freise Welchman, 108 S Washington St. Ste 400, Seattle, WA 98104-3433.
Anne Elizabeth Vold, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
Seattle Police Officer Richard Howard, III, was injured when the patrol car driven by his partner, Officer Gregory Sackman, collided with Ben McMillan's car. A jury found Sackman and McMillan negligent and awarded damages. Howard contends he is entitled to a new trial on damages because the trial court's evidentiary rulings and decision to deny his motion for a new trial were erroneous. In addition, Howard claims the trial court erred when it entered judgment in Sackman's favor and entered judgment against McMillan. We conclude the trial court's evidentiary rulings and denial of Howard's request for a new trial were not an abuse of discretion but reverse and vacate the judgment in Sackman's favor and the judgment against McMillan.
Facts
On April 1, 1996, Seattle Police Officer Howard and his partner, Officer Sackman, were driving northbound on Third Avenue in response to a non-emergency call. The patrol car siren and lights were not activated and Officer Sackman was driving faster than the 30 miles per hour (mph) speed limit.
John Hunter, an accident reconstruction expert, testified that Officer Sackman was driving between 46 to 49 mph at the time of impact and McMillan was traveling between 18 and 20 mph.
Ben McMillan was stopped at the intersection of Third and Vine. As McMillan entered the intersection, his car struck the patrol car. The patrol car spun 190 degrees before coming to a stop in the middle of Third Avenue. McMillan was injured and his car severely damaged. Officers Sackman and Howard were both injured and went to Harborview Medical Center. Howard was diagnosed with a neck strain and released. Over the next two years, Howard sought medical treatment for his injuries. He filed a worker's compensation claim with his employer, the City of Seattle (the City) and received payments for his medical bills and lost wages from May 14, 1996 to March 2, 1998.
Sackman had minor injuries and was also released.
On June 17, 1998, Howard filed a personal injury lawsuit against McMillan. McMillan answered and filed a third-party complaint against Sackman alleging Sackman was negligent and liable for any judgment awarded to Howard.
The City appeared on behalf of Sackman and filed an answer and affirmative defenses to McMillan's third party complaint. Trial was scheduled for Monday June 5, 2000.
The City, representing Sackman, did not dispute its liability for Sackman's acts and agreed it would indemnify Sackman for any judgment entered against him.
The day before trial, the court granted Howard's motion to realign the parties to add Sackman as a defendant and file an amended complaint against him.
The case was tried to the jury June 5 through June 15. On June 19, the jury returned its verdict. The jury found McMillan and Sackman negligent and that their negligence was the proximate cause of injury to Howard. According to the jury, Sackman was 95% at fault and McMillan 5%. The jury awarded damages to Howard and McMillan.
Howard filed a motion for a new trial on damages on a number of grounds. The court denied Howard's motion for a new trial, granted Sackman's motion to enter a judgment notwithstanding the verdict in his favor and entered a judgment against McMillan for 5% of the verdict. Howard appeals.
Evidentiary Rulings
Howard assigns error to the trial court's decision: (1) to allow Dr. Aberle to testify on behalf of Sackman and McMillan; (2) to admit an exhibit containing a collateral source reference; and (3) to allow testimony related to treating physician negligence and other possible causes for Howard's injuries. We review a trial court's decisions on admissibility of evidence for abuse of discretion. Havens v. C D Plastics, 124 Wn.2d 158, 168, 876 P.2d 435 (1994). `A trial court has `broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion.'" Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265 (2000), quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997). A trial court abuses its discretion `when it takes a view no reasonable person would take, or applies the wrong legal standard to an issue.' Cox, 141 Wn.2d at 439.
Dr. Aberle
Howard argues the trial court erred when it allowed Dr. Aberle to testify and did not impose sanctions for late disclosure. Sackman did not identify Dr. Aberle as a witness before the discovery deadline. King County Local Rule (KCLR) 26(b) requires each party to disclose all witnesses, including expert witnesses, before the case schedule discovery cutoff. KCLR 26(f) provides:
Any person not disclosed in compliance with this rule may not be called to testify at trial, unless the Court orders otherwise for good cause and subject to such conditions [as] justice requires.
`A party's untimely designation of a witness without reasonable excuse will justify an order excluding the witness.' Scott v. Grader, 105 Wn. App. 136, 140, 18 P.3d 1150 (2001).
On Friday June 2, the trial court granted Howard's motion to realign the parties to name Sackman a defendant and file an amended complaint against him. Howard argued Sackman was not prejudiced because the City had Howard's medical records and participated in discovery.
Before opening statements, the trial court granted Sackman's motion to call Dr. Aberle as an expert witness. In December 1997, Dr. Aberle conducted an independent medical exam of Howard for his worker's compensation claim. Sackman's failure to timely identify Dr. Aberle was excusable because Sackman was not a defendant in Howard's lawsuit until the first day of trial. There was good cause to allow Sackman to call Dr. Aberle. The trial court's decision to allow Dr. Aberle to testify and not impose sanctions was not an abuse of discretion.
All parties received a copy of the independent medical exam report. Sackman also received a written description of Dr. Aberle's proposed testimony.
Collateral Source Reference
Howard claims McMillan's display to the jury of one of Howard's medical record exhibits on the overhead projector violated the motion in limine order prohibiting reference to collateral sources. During cross examination of Dr. Pitt, Howard's expert, McMillan's attorney used a medical record designated by Howard as an exhibit. In addition to the statement that `[t]he patient cannot remember the last flare-up but it was several months ago with intermittent mild exacerbations of back pain. Richard states that he is functioning well at his job and is not limited by back pain,' the exhibit included the following sentence: `There was a long discussion regarding claim closure and future expectations and the patient feels that claim closure is appropriate at this time.' Howard did not object and McMillan's attorney did not refer to this sentence. At the end of trial before the exhibit was given to the jury, the trial court redacted the word `claim'.
The trial court granted Howard's motion to exclude collateral source evidence, including evidence of medical insurance, disability insurance, worker's compensation/unemployment compensation or government payments of any kind, vacation pay or sick leave, Medicaid or Medicare payments, social security or pensions. Clerk's Paper (CP) at 9-10, 24.
Howard designated this exhibit for admission and did not ask that it be redacted.
Exhibit 14, pgs. 9-10.
When redacted, the exhibit read as follows: `There was a long discussion regarding closure and future expectations and the patient feels that closure is appropriate at this time.' Exhibit 14, pg. 10. Howard contends the court refused to redact the whole sentence, but Howard's citation to the record references only his motion for a new trial and the declaration of his counsel, not a citation to the trial record.
Howard admits he did not object to McMillan's use of the exhibit but argues no objection was necessary because the court granted his motion to exclude collateral source references. A party need not renew an objection to evidence that is the subject of a motion in limine unless the ruling is tentative and advisory. Sturgeon v. Celotex Corp., 52 Wn. App. 609, 621-23, 762 P.2d 1156 (1988). There is no reason to conclude the trial court's ruling here was not final. However, we conclude any error was harmless. There was no testimony about `claim' or `claim closure' during McMillan's cross examination of Dr. Pitt and the exhibit was redacted to delete reference to `claim' before it was given to the jury. The presence of the word `claim' in the exhibit displayed during trial was so insignificant that there is no substantial likelihood that it had an effect on the jury's verdict.
The cases Howard relies on hold that a party need not object when the error is so flagrant and prejudicial that no instruction could have cured it. See Washington State Physicians Insurance Exchange Ass'n v. Fisons Corp., 122 Wn.2d 299, 333-34, 858 P.2d 1054 (1993); Warren v. Hart, 71 Wn.2d 512, 518, 429 P.2d 873 (1967); Carabba v. Anacortes School District No. 103, 72 Wn.2d 939, 954, 435 P.2d 936 (1967); State v. Case, 49 Wn.2d 66, 76, 298 P.2d 500 (1956); State v. Smith, 189 Wn. 422, 429, 65 P.2d 1075 (1937) (where court had previously ruled evidence was inadmissible, counsel's deliberate disregard of ruling was presumed prejudicial); Osborn v. Lake Washington School District No. 1, 1 Wn. App. 534, 539, 462 P.2d 966 (1969). Howard has not shown that any prejudice from the display of the exhibit could not have been cured by an instruction to the jury.
Where error results from the violation of an evidentiary rule, `reversal is required only if there is a substantial likelihood the error affected the jury's verdict.' Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996).
Physician Testimony
Howard argues there were three instances when McMillan violated the motion in limine order by impermissibly suggesting Howard's treating doctors were negligent. Howard also claims the court committed reversible error when it overruled Howard's objections.
The trial court granted Howard's motion to exclude evidence that his injuries were caused or contributed to by any malpractice or breach of duty by any of his treating health care providers. CP at 5, 23.
The first two exchanges occurred during McMillan's cross examination of Howard's experts, Dr. Pitt and Dr. Smith. McMillan asked each doctor whether it was standard practice for a physician to ask a patient about his complaints and whether the patient's medical record should include that information. The point of McMillan's examination was to show it is standard practice for doctors to record a patient's complaints and there were no statements made by Howard to his doctors about lower back pain.
The third exchange occurred during the testimony of Howard's expert Dr. Smith. Dr. Smith is a radiologist who testified that, based on an MRI of Howard's spine, Howard had a lower back disk extrusion caused by the accident. In cross examination, McMillan asked Dr. Smith if, as a radiologist, he was qualified to testify as an expert witness on the standard of care for orthopedic and other surgeons.
The two questions were:
If a patient were considering a suit against an ortholpedic [sic] surgeon or a neurosurgeon for not diagnosing a herniated disk in a earlier time or in how he was treated or how the surgery was performed, would you consider yourself qualified to come into court and testify against the orthopedic surgeon or neurosurgeon, is that beyond your expertise? . . .
Would you consider yourself qualified to testify as to whether or not the physician should have made the diagnosis earlier or an operative technique, that sort of thing, based, not based on the images, but on the patient's presentation with regard to the symptoms he was expressing[?].' Report of Proceedings (RP) (6/13/00) Smith at 69-70.
None of these exchanges suggest Howard's treating doctors were negligent or violate the motion in limine order. The trial court did not abuse its discretion when it allowed McMillan to ask these questions and overruled Howard's objections.
Relying on Washington Irrigation Dev. Co. v. Sherman, 106 Wn.2d 685, 724 P.2d 997 (1986) and Supanchick v. Pfaff, 51 Wn. App. 861, 756 P.2d 146 (1988), Howard argues the trial court committed reversible error when it allowed expert medical testimony regarding possible rather than probable causes of injury. Possibility testimony is not per se inadmissible; its admissibility depends on whether there is an adequate evidentiary foundation that connects the possible causes and the injury. Washington Irrigation, 106 Wn.2d at 691-92.
Here, the court reserved ruling on Howard's motion in limine regarding testimony `[t]hat there exist other possible, potential or less than likely, but conceivable causes for plaintiff's injuries.' CP at 9.
In Washington Irrigation, the Court held it was improper to question defendant's medical expert witness about possible causes of plaintiff's back injury when there was no evidence showing that any of the possible causes related to the plaintiff's injury. The Court concluded the error was not prejudicial, however, because in rebuttal the plaintiff's expert testified there was no causal link between the possible causes and the plaintiff's condition. In Supanchick, this court granted a new trial on other grounds and did not decide whether questions regarding other possible causes for the plaintiff's back condition were improper or prejudicial error. But the court in Supanchick noted:
The decision whether to limit the scope of inquiry of the expert witnesses must be decided by the trial court in the context of the evidence submitted, and the foundation and purposes proposed for the introduction of that evidence.
Supanchick, 51 Wn. App. at 867-868.
Howard cites two times when McMillan asked Dr. Pitt and Dr. Smith possibility rather than probability questions. Dr. Pitt, testified that when there is a disk injury it is typically limited to just one disk and the involvement of two disks in Howard's case suggested more than one accident had caused Howard's injuries. McMillan then asked Dr. Pitt whether Howard's injuries could have existed before the car accident. On redirect, Howard asked Dr. Pitt questions about whether Howard's disk damage existed before the 1996 accident.
The second instance occurred during cross examination of Dr. Smith. McMillan asked, `If [Howard] sustained a neck and upper back injury in 1989, isn't it at least possible that this x-ray finding with this ligament injury seen in the x-rays of 1996, have been there since 1989?' Howard later testified he had been injured in a car accident in 1989, and the injuries from that accident included neck and back problems. The trial court did not err in allowing McMillan to ask Dr. Pitt and Dr. Smith about other possible causes of Howard's back injury. The evidence showed a causal connection between the questions asked and Howard's injuries and Howard's expert had the opportunity to rebut the testimony.
RP (6/13/00) Smith at 85.
RP (6/13/00) Howard III at 9-10.
Motion for New Trial
Howard argues the trial court erred in denying his motion for a new trial. The trial court's decision to deny Howard's motion for a new trial is reviewed for abuse of discretion. Aluminum Co. of America v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). We `will disturb a trial court's decision to deny a new trial only for a clear abuse of that discretion or when it is predicated on an erroneous interpretation of the law.' State v. Cho, 108 Wn. App. 315, 320, 30 P.3d 496 (2001). Howard relied on the following sections of CR 59(a) in his motion for a new trial:
(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;
(2) Misconduct of prevailing party or jury;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;
(8) Error in law occurring at the trial and objected to at the time by the party making the application;
(9) That substantial justice has not been done.
CR 59(a)(1) Irregularity in the Proceedings
Howard claims that because closing argument was not recorded, he is entitled to a new trial under CR 59(a)(1). Under CR 59(a)(1), the trial court may vacate a judgment for an irregularity in the proceedings that materially affects the substantial rights of a party. Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 938, 813 P.2d 125 (1991). KCLR 80(c)(2) provides that closing arguments in civil cases will only be reported where expressly directed by the trial judge. The record does not indicate Howard requested closing arguments be reported. Howard claims he objected to the trial court's decision not to report closing arguments, but the citation to the record does not support his position. The trial court's decision to deny Howard's motion for a new trial on this ground was not an abuse of discretion.
Howard also challenges the trial court's failure to record `numerous of the events that occurred at trial,' but Howard provides no specificity or citation to the record and we therefore do not consider this argument. RAP 10.3; see Smith v. Behr Process Corp., 113 Wn. App. 306, 338-39, 54 P.3d 665 (2002) (refusing to review `sweeping' hearsay objections that lacked `specific argument' about the statements).
The pleading Howard references does not contain any indication that he objected to the trial court's failure to report closing arguments. CP at 27-62.
CR 59(a)(2) Misconduct of a Prevailing Party
Howard argues McMillan and McMillan's and Sackman's lawyers engaged in misconduct when McMillan made a statement about his poverty, McMillan displayed a medical record to the jury that contained a collateral source reference, Sackman failed to timely disclose Dr. Aberle as an expert witness, and McMillan's counsel expressed personal opinions in closing argument.
Under CR 59(a)(2), misconduct of a prevailing party is a basis for a new trial if the misconduct materially affects the substantial rights of the moving party. In making this determination the conduct must be actual misconduct, and not just aggressive advocacy, that is prejudicial in the context of the entire record. Aluminum Co. of America v. Aetna, 140 Wn.2d at 539-540, citing 12 James Wm. Moore, Federal Practice sec. 59.13[2][c][I][A], at 59-48 to 59-49 (3d ed. 1999). Misconduct that the moving party did not object to is only a proper ground for a new trial if it was so flagrant the court could not have cured the prejudicial effect through an instruction to the jury. Adair v. Weinberg, 79 Wn App. 197, 204, 901 P.2d 340 (1995).
Howard argues McMillan's statement during his testimony that he was `broke' violated the order excluding reference to a party's poverty and requires a new trial.
The trial court granted Howard's motion in limine to exclude references to a party's poverty. CP at 5, 23.
McMillan testified as follows:
Q: [Y]ou are also a musician?
A: Yes I am.
Q: Currently in a band?
A: I was in Reunion that I had a few years ago. But I have been doing music since '85. I have about nine albums out. I'm broke, but I have some music out there.
RP (6/13/00) McMillan at 3.
Howard did not object to McMillan's testimony. In context, McMillan's statement about his poverty was not elicited by counsel's question and was not an intentional violation of the court's in limine order and the reference was so minimal that it was not prejudicial. The comment was also not flagrant and the court could have cured any prejudice with an instruction to the jury.
Howard relies on King v. Starr, 43 Wn.2d 115, 260 P.2d 351 (1953), and Miller v. Staton, 64 Wn.2d 837, 394 P.2d 799 (1964), for the proposition that it is improper to argue that a defendant is uninsured or poor. These cases do not support Howard's position because they both addressed intentional improper references. King, 43 Wn.2d at 122 (the deliberate reference to the defendants' lack of insurance was reversible error); Miller, 64 Wn.2d at 840 (intentional injection of the issue of insurance is reversible error).
Howard argues McMillan's display of a medical record that referred to `claim closure' and the failure to identify Dr. Aberle as an expert witness before the discovery deadline was misconduct that required a new trial. As previously described, in the context of the proceedings at trial, neither the display of the medical record nor Dr. Aberle's late disclosure was misconduct or prejudicial. Howard claims McMillan's counsel committed misconduct by expressing his personal opinions in closing argument. Closing arguments were not transcribed and we are unable to review the alleged misconduct. See RAP 10.3(a)(5); see also Bulzomi v. Dep't of Labor Industries, 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (insufficient record on appeal precludes review of alleged errors).
Exhibit 14 at 10.
Similarly, the late disclosure and revised opinion of Dr. Aberle do not constitute surprise requiring a new trial under CR 59(a)(3). All parties received a copy of Dr. Aberle's independent medical examination report and Sackman provided Howard with a written summary of what Dr. Aberle would say before he testified.
CR 59(a)(2) Misconduct of the Jury
Howard contends, based on allegations in his attorney's affidavit, that the jury committed misconduct requiring a new trial under CR 59(a)(2) and CR 59(a)(9) because the jurors were racially prejudiced and the jury improperly considered worker's compensation benefits. Howard also argues that at least one of the jurors falsely denied racial bias in voir dire requiring a new trial under CR 59(a)(2). In the alternative, Howard argues that the trial court's failure to investigate these allegations of racial prejudice is an irregularity requiring a new trial under CR 59(a)(1). Appellate courts are reluctant to inquire into the manner in which a jury reaches its verdict. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994). `A strong affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.' State v. Balisok, 123 Wn.2d at 117-18. Granting of a new trial for juror misconduct is a matter within the trial court's sound discretion. Balisok, 123 Wn.2d at 117. Accordingly, this court reviews such decisions for an abuse of discretion. Balisok, 123 Wn.2d at 117.
Howard's attorney's affidavit states:
Two of the jurors spoke with the undersigned separately after the case in the hallway outside the jury room. One of these jurors suggested to me that this juror thought that prejudice against Richard Howard, III based on his ethnic background was evident in the jury room. The undersigned has been informed that this juror is on vacation and will not return until sometime in July. The other informed the undersigned that he and other jurors discussed the fact that Officer Howard would have available to him benefits because he had been injured on the job which would pay for his medical expenses and wage loss due to the injury at issue at trial.
CP at 58.
The affidavit of a third person regarding statements allegedly made by jurors is inadmissible hearsay unless the statements show that a juror intentionally concealed actual bias. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989); Dalton v. State, 115 Wn. App. 703, 716, 63 P.3d 847 (2003).
Howard relies on Dalton to argue that his attorney's affidavit establishes juror misconduct. Howard's reliance on Dalton is misplaced. The juror in Dalton told a third party that the plaintiff was an opportunist who was trying to profit from her child's death. In an affidavit, the third party repeated the juror's statements. The statements attributed to the juror in the third party's affidavit contradicted answers he gave in voir dire. In a responsive declaration, the juror did not deny the statements attributed to him. The court concluded the juror had intentionally concealed his actual bias in voir dire and granted a new trial.
The third party's affidavit was challenged as hearsay. The court held that the affidavit could be used to show the existence of concealed juror bias.
Here, voir dire was not reported and the suggestion in a third party's affidavit that that one juror believed there was racial prejudice against the plaintiff does not establish juror misconduct.
Similarly, the allegation in Howard's attorney's affidavit that during deliberations another juror said the jurors discussed other benefits that might be available to Howard does not establish misconduct that requires a new trial. A juror's post verdict statements regarding the way in which the jury reached its verdict cannot be used to support a motion for a new trial. `?The individual or collective thought processes leading to a verdict `inhere in the verdict' and cannot be used to impeach a jury verdict.'' Breckenridge v. Valley General Hospital, 150 Wn.2d 197, 204-05, 75 P.3d 944, 948-49 (2003), quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988).
The trial court's refusal to hold a hearing based on the allegations in Howard's attorney's affidavit and its decision to deny Howard's motion for a new trial based on juror misconduct was not an abuse of discretion, a failure of substantial justice or an irregularity in the proceedings.
CR 59(a)(5) Inadequate Damages
The jury awarded Howard $8500: $6500 for past economic damages and $2000 for general damages, and awarded McMillan $5000: $2600 for property damages to his car and $2400 for general damages. Howard argues that the $400 difference between the general damages awarded to Howard and McMillan `is presumptive evidence that the verdict on Howard's damages was inadequate as a result of passion or prejudice.' Alleged passion or prejudice on the part of the jury is grounds for granting a new trial under CR 59(a)(5) only if the record indicates that the verdict was not within the range of proven damages. James v. Robeck, 79 Wn.2d 864, 870-71, 490 P.2d 878 (1971).
App. Br. at 47.
Howard focuses on McMillan's failure to present expert testimony to argue there was insufficient evidence to support the jury's damages award. Under Bitzan v. Parisi, 88 Wn.2d 116, 122, 558 P.2d 775 (1977), expert testimony is not essential. An injured person can testify about his subjective symptoms of pain and suffering and physical limitations. Bitzan, 88 Wn.2d at 122. McMillan was injured in the accident and his car was severely damaged. He testified about these damages. The trial court did not abuse its discretion when it refused to order a new trial on this ground.
CR 59(a)(8) Errors of law
Howard argues that the trial court's failure to sanction Sackman and McMillan for the late disclosure of Dr. Aberle as an expert witness and the expert witness possibility testimony was an error of law requiring a new trial under CR 59(a)(8). As discussed, the trial court's decisions were not erroneous and it was not an abuse of discretion to refuse to grant a new trial on this ground.
In sum, the court did not abuse its discretion in denying Howard's motion for a new trial. There were no irregularities in the proceedings or misconduct and the jury's award of damages was based on the evidence.
Dismissal of Sackman
Howard contends the trial court erred when it granted Sackman's motion for judgment as a matter of law and entered a judgment in Sackman's favor. We agree.
On May 7, 1996, Howard filed a workers compensation claim against the City for lost wages and medical bills related to the car accident. In June 1998, Howard filed his personal injury lawsuit against McMillan. McMillan filed a third party complaint against Sackman for injuries and a claim for contribution for any damages awarded to Howard. The City appeared on behalf of Sackman and filed an answer and affirmative defenses. Trial was scheduled for Monday, June 5, 2000. In May, Sackman filed a motion for partial summary judgment to dismiss McMillan's claim for contribution. Sackman acknowledged that Howard could sue Sackman or the City under the Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF), RCW 41.26.281, to recover excess damages for work-related injuries beyond those received under LEOFF. But because Howard only sued McMillan, Sackman argued that he was not a party against whom judgment could be entered under RCW 4.22.070(1)(b). See also Kottler v. State, 136 Wn.2d 437, 446-47, 963 P.2d 834 (1998). Under RCW 4.22.070(1)(b), when there is a fault free plaintiff, there is only joint and several liability between defendants against whom judgment is entered.
He received approximately $15,241 in benefits: $5881 for wage loss and $8876 for medical bills. CP at 900.
Howard's complaint alleged he was injured when the patrol car collided with McMillan's car. Howard alleged that the driver of the patrol car, Sackman, complied with all applicable traffic regulations and that McMillan negligently ran a stop sign and caused the collision.
McMillan's third party complaint alleged that Sackman was negligent and driving recklessly and in excess of the speed limit and not keeping a proper lookout at the time of the collision.
RCW 41.26.281 provides:
If injury or death results to a member from the intentional or negligent act or omission of a member's governmental employer, the member shall have the privilege to benefit under this chapter and also have cause of action against the governmental employer as otherwise provided by law, for any excess of damages over the amount received or receivable under this chapter.
In response to Sackman's partial summary judgment motion, Howard asked the trial court to realign the parties to name Sackman as a defendant and allow Howard to file an amended complaint against Sackman. On June 2, the day before trial, the trial court denied Sackman's motion for partial summary judgment and granted Howard's request to add Sackman as a defendant and file an amended complaint. The amended complaint, filed on the first day of trial, alleged that Sackman was driving in excess of the speed limit without activating the emergency lights or siren, and that the negligence of both Sackman and McMillan caused the collision and it's injuries. The case was tried to the jury from June 5 to June 15. On June 16, after the case was submitted to the jury, the City filed a Notice of Statutory Lien under the Industrial Insurance Act, RCW 51.24.030, for the workers compensation benefits paid Howard.
Neither Howard's amended complaint nor the order allowing Sackman to be added as a defendant stated the statutory basis of the action against Sackman.
The notice states that the City, as self-insured employer of Howard, had a statutory lien under RCW 51.24.030 against Howard. CP at 283.
On June 19, the jury returned its verdict. The jury found Sackman and McMillan negligent and that their negligence was the proximate cause of injury to Howard. The jury attributed 95% fault to Sackman and 5% to McMillan and awarded damages to Howard and McMillan.
Sackman requested entry of judgment against him for excess damages under RCW 41.26.281 exclusive of the City's lien amount. Howard argued Sackman did not have a right to enforce the City's lien under RCW 51. Howard's attorney also said Howard did not `assert a claim against his employer the nonparty City of Seattle under RCW 41.26.281.' Based on this statement, Sackman filed a CR 50(b) motion for judgment notwithstanding the verdict. Sackman argued that if Howard's lawsuit was brought under RCW 51, it was barred as a matter of law and judgment should be entered in his favor. In the alternative, Sackman asked the court to enter judgment against him for excess damages under RCW 41.26.281.
See CP at 911. Howard is correct that RCW 51 dictates how the lien may be enforced. Under RCW 51.24.060(1), funds from a recovery against a third party go first toward attorney fees, then a percentage of the remainder goes to the plaintiff, then the City can recover from the remainder up to the amount of the benefits paid.
CP at 911.
RCW 51, the Industrial Insurance Act, abolished civil actions by employees against their employers. RCW 51.04.010. Under RCW 51.24.030(1), employees may pursue civil actions against third parties for injuries sustained in the course of employment, but that statutory exception precludes civil actions against co-workers. Shelton v. Azar, Inc., 90 Wn. App. 923, 929, 954 P.2d 352 (1998). See also Silliman v. Argus Servs., 105 Wn. App. 232, 235-36, 19 P.3d 428 (2001). RCW 41.26.281 provides a limited exception to the RCW 51 prohibition against suits against employers and co-workers for law enforcement officers and firefighters. Under RCW 41.26.281, qualifying employees may bring action against their governmental employers for intentional or negligent acts resulting in injury or death, but the employee may only recover damages in excess of the benefits receivable under LEOFF, RCW 41.26.
In response to Sackman's CR 50(b) motion, Howard unequivocally stated that his claim against Sackman was brought under RCW 41.26.281 and the references to RCW 51 related only to the statutory lien filed by the City. Based on this clarification, Sackman abandoned his request to enter a CR 50(b) judgment in his favor and asked the court to enter a judgment for excess damages under RCW 41.26.281.
Howard's counsel's declaration stated:
These references were included for the purposes of showing the Court that even if the Court were calculating a lien under LI statutes, that lien would be nil because of the responsibility for a proportionate share of attorney's fees and costs. These references, as inartfully worded as they might have been were for the purposes of showing that if an LI analysis were followed by the Court here, there would be no right for the City to recover as plaintiff's actual trial costs, as opposed to taxable costs, exceeded the amount of recovery, allowing the City no recovery on any LI claim.
CP at 977.
On March 7, 2001, the trial court entered an order granting Sackman's motion for judgment as a matter of law under CR 50(b). The order states: `[t]he plaintiff's action against Defendant Sackman was brought under RCW 51.24.030. Defendant Sackman is a co-employee of Plaintiff Howard and was acting in the course and scope of his employment. As such, plaintiff's action against Defendant Sackman is barred by RCW 51.24.030(1).' When reviewing a trial court's decision to deny a motion for judgment as a matter of law, this court applies the same standard as the trial court. Esparza v. Skyreach Equipment, Inc., 103 Wn. App. 916, 926, 15 P.3d 188 (2000).
CP at 258.
The parties agreed Sackman was sued under LEOFF, RCW 41.26.281, not the Industrial Insurance Act, RCW 51.24.030. The trial court erred when it granted Sackman's motion for judgment as a matter of law and we reverse, vacate the judgment and remand for entry of judgment against Sackman under RCW 41.26.281. As a consequence, Sackman and McMillan are jointly and severally liable and we reverse the trial court's decision to enter judgment against McMillan for 5% of the verdict, vacate the judgment and remand for entry of a joint and several judgment against McMillan.
See Hansen v. City of Everett, 93 Wn. App. 921, 971 P.2d 111 (1999); Flanigan v. Dep't of Labor Industries, 123 Wn.2d 418, 869 P.2d 14 (1994); Gillis v. Walla Walla, 94 Wn.2d 193, 616 P.2d 625 (1980); and Bickford v. City of Seattle, 104 Wn. App. 809, 17 P.3d 1240 (2001). Howard cites Fray v. Spokane County, 134 Wn.2d 637, 952 P.2d 601 (1998), for the proposition that he retained his common law civil tort remedies against co-workers. Fray does not support Howard's position. Fray provides that an employee may sue his employer for excess damages under LEOFF in addition to receiving worker compensation/LEOFF benefits.
Attorney's Fees
Howard, Sackman and McMillan each request an award of attorney's fees. We deny the requests for attorney's fees because the parties did not comply with RAP 18.1 or cite authority to support an award of attorney's fees. See RAP 18.1 and Wilson Court Ltd. Partnership v. Tony Maroni's Inc., 134 Wn.2d 692, 710 fn.4, 952 P.2d 590 (1998). `Argument and citation to authority are required under the rule to advise us of the appropriate grounds for an award of attorney fees as costs.' Id.
Conclusion
The jury's verdict is affirmed. The trial court's decision to enter judgment in Sackman's favor based on RCW 51.24.030 is reversed. We vacate the judgment entered in Sackman's favor and the judgment entered against McMillan for 5% of the verdict and remand for entry of judgment against Sackman and McMillan.
BECKER and BAKER JJ., concur.