Opinion
No. 3-282 / 02-0753.
Filed June 25, 2003.
Appeal from the Iowa District Court for Dubuque County, Robert J. Curnan, Judge.
Defendant appeals jury verdict of punitive damages and future medical expenses, and certain jury instructions. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Michael Coyle and Norman Wangberg of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., Dubuque, for appellant.
A. John Arenz and Stephen Krumpe of O'Connor Thomas, P.C., Dubuque, for appellees.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
Stillmunkes Salvage and Trucking, Inc. appeals from a jury award of punitive damages and future medical expenses and certain jury instructions. We affirm in part, reverse in part, and remand.
Background Facts. On September 1, 1999, a collision occurred on a rural gravel road between a car driven by Terry Strub (Strub) and a semi tractor-trailer driven by James Gerlach (Gerlach) while employed by Stillmunkes Salvage and Trucking, Inc., (Stillmunkes). Gerlach was following Stillmunkes owner Mark Stillmunkes to a job site on a gravel road. Because conditions were dry, the first semi tractor-trailer was producing dust on the road impairing Gerlach's view. When he saw Strub's car, Gerlach applied the breaks but the vehicles nonetheless collided. Strub's vehicle turned one hundred and eighty degrees in the air and came to rest in the ditch. Strub was taken by ambulance from the scene. Deputy Sheriff Ward arrived on the scene about twenty-five minutes after the accident occurred.
Strub suffered a dislocated and fractured hip, rib contusions, facial fracture, and a herniated disk. Along with taking anti-inflammatory medication, Strub participated in physical therapy and received cortisone injections in his spine.
Gerlach was first hired as a truck driver by Stillmunkes in December 1998. Stillmunkes's insurance carrier covered Gerlach on a probationary status as his driving record raised some concerns. Gerlach had a valid Iowa commercial driver's license but also had numerous citations for speeding, accidents, and driving while suspended. Gerlach's most recent citation was a little over two years before this initial hire. Stillmunkes's insurance carrier informed Stillmunkes that should Gerlach receive any new moving violation, the carrier would revoke coverage. In January 1999, within a week of each other, Gerlach hit a cow with a semi tractor-trailer and ran a stop sign. Because of these incidents, insurance as to Gerlach was revoked and he was terminated as a Stillmunkes employee.
About six months later in August 1999, Stillmunkes rehired Gerlach as a driver. Though Mark Stillmunkes testified he called the insurance carrier to ensure Gerlach was included in its policy, at the time of the accident Gerlach was not covered by the insurance carrier. When Gerlach was terminated in January, the carrier excluded Gerlach from all coverage under Stillmunkes's policy. The exclusion had not been lifted when Gerlach was rehired in August. The collision in question occurred two weeks after the second hiring.
Following trial, the jury awarded Strub compensatory damages of $177,491.74, including $35,000 for future medical expenses. The jury further awarded punitive damages of $30,000 finding Stillmunkes's conduct a willful and wanton disregard for the rights or safety of another. Stillmunkes filed a motion for judgment notwithstanding the verdict and for a new trial challenging, inter alia, the award of future medical expenses and punitive damages, as well as several jury instructions. The motions were denied. Stillmunkes appeals.
Scope of Review. We review the denial of a motion for new trial for correction of errors at law. Iowa R.App.P. 6.4; Johnson v. Knoxville Cmty. Sch. Dist., 570 N.W.2d 633, 635 (Iowa 1997). However, if the motion is based on a discretionary ground, we review for abuse of discretion. Condon Auto Sales Serv., Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999). We review a claim that the district court erred in limiting cross-examination for abuse of discretion. State v. Jones, 511 N.W.2d 400, 406 (Iowa Ct.App. 1993) (citation omitted).
Punitive Damages. Stillmunkes claims there was insufficient evidence of reckless hiring to submit the question of punitive damages to the jury. Strub argues there was sufficient evidence from which a reasonable jury could conclude Stillmunkes was reckless to hire Gerlach as a driver and this recklessness was a proximate cause of Strub's injuries.
An award of punitive damages stands only when there is proof of conduct that establishes a "willful and wanton disregard for the rights or safety of another." Iowa Code § 668A.1(1)(a) (1999); Mercer v. Pittway Corp., 616 N.W.2d 602, 617 (Iowa 2000). "Willful and wanton" has been defined as follows:
[T]he actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.
Mercer, 616 N.W.2d at 617 (citations omitted). The evidence to support an award must be clear, convincing and satisfactory. Iowa Code § 668A.1(1)(a); Mercer, 616 N.W.2d at 617.
"Punitive damages serve `as a form of punishment and to deter others from conduct which is sufficiently egregious to call for the remedy.'" McClure v. Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000) (quoting Coster v. Crookham, 468 N.W.2d 802, 810 (Iowa 1991)). Negligent conduct, alone, is not sufficient to support a claim for punitive damages. Id. at 230-31 (citing Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 256 (Iowa 1993)). Punitive damages are appropriate only when actual or legal malice is established. Id. at 231 (citing Schultz v. Security Nat'l Bank, 583 N.W.2d 886, 888 (Iowa 1998)). "Actual malice is characterized by such factors as personal spite, hatred, or ill will. Legal malice is shown by wrongful conduct committed or continued with a willful or reckless disregard for another's rights." Id. (citing Schultz, 583 N.W.2d at 888) (citation omitted).
Strub points to Stillmunkes's hiring practice, its violation of federal safety regulations, and the industry standard as proof of reckless hiring to support the punitive damages award. Stillmunkes's routine practice to determine whether a person could be insured and thus hired was to call its insurance carrier, inform the carrier of the driver's full name, date of birth, and commercial driver's license number. The insurance carrier would then review the motor vehicle record to determine coverage. At no point would Stillmunkes receive a copy of the motor vehicle record. In accordance with this practice, Stillmunkes did not obtain a copy of Gerlach's motor vehicle record when it hired him either the first or second time.
John Neal, a consultant and plaintiff's expert on heavy bus and truck accidents, testified regarding the commonly-accepted trucking industry standards and practices. Neal stated the industry standard for reviewing a person's driving record is to look at the past six years; however, the federal regulations require only three years and allow for a thirty-day period after hiring for an employer to review the employee's driving record. 49 C.F.R. § 391.23 (2000).
Our supreme court addressed the issue of punitive damages with similar underlying facts in Seraji v. Perket, 452 N.W.2d 399 (Iowa 1990). In Seraji, the employer hired a truck driver whose record was "not good" according to the court, including a revoked license on at least one occasion, four speeding violations, and driving without a license. Seraji, 452 N.W.2d at 402. While working for the employer, the driver incurred two more moving violations. Id. The supreme court did not find the company's actions satisfied the high burden to demonstrate reckless hiring or retention. Id. "An employer acts with reckless disregard if it intentionally does or fails to do something it has a duty to do or not to do." Id.; cf. Meyer v. Nottger, 241 N.W.2d 911, 918-19 (Iowa 1976). "An employer also acts recklessly if it realizes that there is a strong probability that certain consequences will result from an act or that a reasonable person in its position would know of that probability." Id. (citing Thompson v. Bohlken, 312 N.W.2d 501, 505 (Iowa 1981)).
With the Seraji case in mind, we review whether a rational jury could find by a preponderance of clear, convincing, and satisfactory evidence that the conduct of Stillmunkes constituted willful and wanton disregard for the rights or safety of another. Iowa Code § 668A.1(1)(a); Mercer, 616 N.W.2d at 618; Schultz, 583 N.W.2d at 888. There is no question that Gerlach possessed a valid Iowa commercial driver's license. As Stillmunkes points out in its brief, "[I]t is incredible that Stillmunkes could be found reckless in hiring [Gerlach] to do the very thing the state allows him to do without restriction . . ." Furthermore, there is no evidence that a reasonable person in Stillmunkes's position would have found that Gerlach was an unfit driver. In the three years prior to the accident, the only violation on Gerlach's driving record was for running a stop sign. This was minor in nature, "especially in the context of the many thousands of miles driven by an over-the-road truck driver during the course of several years." Seraji, 452 N.W.2d at 402. By hiring Gerlach, Stillmunkes did not engage in such conduct that would rise to the level of reckless disregard for the safety of others that justifies punitive damages. Id. We reverse the award of punitive damages and remand for entry of judgment accordingly.
Gerlach was not issued a citation for the accident with the cow.
Future Medical Expense. Stillmunkes further claims there was no evidentiary basis for the $35,000 future medical expense award. Strub argues there was substantial evidence in the record for the jury to determine both need and cost of future medical expenses.
To recover the cost of future medical treatment, a plaintiff must provide substantial proof of the necessity for future treatment and its cost. Mossman v. Amana Soc'y, 494 N.W.2d 676, 679 (Iowa 1993). "While a plaintiff does not necessarily have to accurately determine the cost of future medical expenses, there should be one or more qualified witnesses giving such an opinion upon which a jury may reasonably fix an allowance." Nesbit v. Myers, 576 N.W.2d 613, 614 (Iowa Ct.App. 1998) (citing Shover v. Iowa Lutheran Hosp., 107 N.W.2d 85, 95 (1961)) (upholding cost component of future medical expenses without testimony of cost because the future treatment only consisted of over-the-counter medications, the cost of which was within the jury's knowledge).
Strub continues to experience pain in his hip and back. Strub's physician, Dr. Margaret Mulderig testifying through deposition, stated Strub had no loss of motion, weakness, diminished strength, or atrophy in his hip, but is at an increased risk of arthritis due to the accident. She further stated there is a "good possibility" that he may need future medical attention for his back injury, "which might consist of medications like anti-inflammatories, it could consist of physical therapy, maybe even tuning him up with another [cortisone] injection." Dr. J. Ott, an orthopedic surgeon, described Strub's condition as stable with full range of motion of the hip but noted "persistent back discomfort." He offered to refer Strub to a "back expert" but only anticipated routine follow-up x-rays in one year and any future care on an "as needed" basis.
The rule is clear that opinion testimony of a physician or medical expert as to the future consequences or effects of an existing injury or condition is admissible only as to those which are reasonably certain to occur, or which are medically probable. Consequences or effects which are a mere possibility are not admissible.
Bostian v. Jewell, 254 Iowa 1289, 1298-1299,121 N.W.2d 141, 146 (1963) (citing Elzig v. Bales, 135 Iowa 208, 112 N.W. 540 (1907); Kime v. Owens, 191 Iowa 323, 182 N.W. 398 (1921); Grismore v. Consol. Prod. Co., 232 Iowa 328, 5 N.W.2d 646 (1942); Cody v. Toller Drug Co., 232 Iowa 475, 5 N.W.2d 824 (1942); Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960)). As Dr. Mulderig testified, there is only a "good possibility" that Strub would require future medical care. We find Strub failed to provide substantial proof of the necessity of such care, and therefore the district court erred by submitting the question of future medical expenses to the jury.
Furthermore, there was no testimony as to the cost of any future treatment for his hip or back. Determination of the cost was purely left to the guesswork of the jury. See Shover v. Iowa Lutheran Hosp., 107 N.W.2d 85, 95 (1961). Given the lack of evidence as to Strub's probable future medical needs and the total lack of evidence on anticipated costs, we reverse the award of future medical expenses and remand for entry of judgment accordingly.
Cross Examination. Stillmunkes next claims the district court abused its discretion by not allowing cross-examination of Deputy Ward about the speed and position of Strub's vehicle at the point of impact unless Stillmunkes qualified him, a plaintiff's witness, as an accident reconstructionist. During direct examination, Deputy Ward testified as to the location of Strub's vehicle and the semi tractor-trailer when he arrived at the scene stating the semi tractor-trailer was one and a half feet over the center line. On cross-examination, Stillmunkes attempted to elicit from the deputy his opinion of whether Strub's vehicle was over the center line at the time of the accident. The district court sustained objections by Strub that the question was improper as lacking foundation. After an offer of proof outside the presence of the jury, the district court determined that Deputy Ward did not qualify as an accident reconstructionist and was not allowed to answer the question. Stillmunkes asserts the court improperly limited its questioning on cross examination, as Strub's questions on direct examination opened the door for related inquiries.
Reviewing the line of questions asked by Strub on direct examination of Deputy Ward, it is clear the deputy answered only by describing his observations of the accident scene when he arrived and did not render an opinion as to speed or location of the vehicles at the time of impact. We find no abuse of discretion in the district court's ruling. Stillmunkes further argues that Deputy Ward should have been qualified as an expert based on his experience investigating accidents, estimated at 600 to 1,500 over his thirty-year law enforcement career. Deputy Ward testified during the offer of proof and voir dire that he was not an accident reconstructionist, had received no training in accident investigation, and had not measured the vehicles, the damage to the vehicles, or the width of the road. We find the district court did not abuse its discretion in not allowing the above cross-examination.
Jury Instruction. Stillmunkes finally challenges the negligence jury instruction. Stillmunkes claims the negligence instruction, Instruction No. 13, was duplicative and submitted a specification of fault inapplicable to the case. The instruction reads in part:
Stillmunkes also challenges the punitive damages instructions, however, as we determined there was insufficient evidence of recklessness to submit punitive damages to the jury, the argument is now irrelevant.
The Plaintiffs claim that Defendant James Gerlach was at fault in that Defendant Gerlach was negligent in one or more of the following particulars:
A. In failing to yield one-half of the roadway to an approaching vehicle;
B. In failing to drive on the right half of the roadway;
C. In driving his vehicle too fast for existing condition;
D. In failing to have his vehicle under control;
E. In failing to keep a proper look-out;
F. In following another vehicle too closely.
Stillmunkes asserts fault specifications `A' and `B' are duplicative and `F' is inapplicable to the facts of this case.
Because of the apparent redundancy of specifications `A' and `B', Stillmunkes contends the theory of Strub's case is over-emphasized. Citing Spry v. Lamont, 257 Iowa 351, 330, 132 N.W.2d 446, 451 (1965), Stillmunkes also asserts, failing to drive on the right half of the roadway adds little to the instruction unless Gerlach was stopped on the left side of the road. Strub disagrees that the instruction is redundant as it is consistent with the Iowa Code. Iowa Code section 321.297(1) states: "A vehicle shall be driven upon the right half of the roadway upon all roadways of sufficient width. . . ." Section 321.298 states in relevant part, "[V]ehicles . . . meeting each other on any roadway shall yield one-half of the roadway by turning to the right." Reading the two code sections together, the jury could have concluded Gerlach was not driving on the right-hand side of the roadway and he failed to turn to the right and yield one-half of the roadway when the Strub vehicle approached. We thus find the two submitted instructions not redundant and properly submitted to the jury.
Stillmunkes argues specification `F' is inapplicable as it serves to protect persons injured by a rear-end collision. Strub contends, however, that it is applicable as the accident was at least due in part to the dust churned up by the first vehicle. Strub further asserts because Gerlach was following the lead vehicle too closely, his visibility was decreased, causing the accident.
As Strub notes, the language of the code section, upon which specification `F' is based, does not specify that it is only to protect the person being followed too closely but rather all traffic. "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Iowa Code § 321.307. As the statute protects all traffic on the roadway, the specification was applicable and appropriate under these circumstances.