Western Fire Truck v. Emergency One

• Decision Date: 23 March 2006
• Docket Number: No. 04CA1458.,04CA1458.
• Parties: WESTERN FIRE TRUCK, INC., Plaintiff-Appellee and Cross-Appellant, v. EMERGENCY ONE, INC., Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

134 P.3d 570

WESTERN FIRE TRUCK, INC., Plaintiff-Appellee and Cross-Appellant, v. EMERGENCY ONE, INC., Defendant-Appellant and Cross-Appellee.

No. 04CA1458.

Colorado Court of Appeals, Div. V.

March 23, 2006.

COPYRIGHT MATERIAL OMITTED

Hill & Robbins, P.C., Ronald L. Wilcox, Jennifer H. Hunt, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Faegre & Benson, LLP, Robert L. Matthews, Neal S. Cohen, Boulder, Colorado, for Defendant-Appellant and Cross-Appellee.

HAWTHORNE, J.

In this tort action, defendant, Emergency One, Inc. (E-One), appeals the trial court's judgment entered after the jury returned a verdict in favor of plaintiff, Western Fire Truck, Inc. Western cross-appeals the trial court's decision to vacate the jury's award of punitive damages. We affirm in part, reverse in part, and remand.

I. Background

E-One manufactures fire and rescue vehicles. Western was its exclusive dealer in Colorado and Wyoming pursuant to a sales and service agreement effective January 2000 through December 2003. However, in April 2002, E-One unilaterally terminated the agreement. At the same time, Western fired one of its salesmen, James Costello, after a Western manager discovered e-mails in which Costello had expressed his dissatisfaction with Western.

Subsequently, Western filed multiple claims against E-One and Costello, who is not a party to this appeal. E-One moved for judgment on the pleadings, asserting that Western's claims were barred by the economic loss rule. The trial court denied the motion, and Western proceeded to trial on claims for civil conspiracy, intentional interference with the employment relationship between Western and Costello, breach of fiduciary duty against Costello, and aiding and abetting this breach of fiduciary duty by E-One.

The jury returned a verdict in favor of Western on all claims and awarded actual damages of $280,000 against E-One and $70,000 against Costello. The jury also awarded Western punitive damages of $50,000 against E-One and $1 against Costello. The court entered judgment on the verdict and awarded Western costs of $36,992.31 and prejudgment interest of $53,200.

E-One moved for a new trial and judgment notwithstanding the verdict as to the punitive damages award, the aiding and abetting breach of fiduciary duty claim, and the intentional interference claim. The trial court vacated the award of punitive damages as not supported by the evidence. The court otherwise denied E-One's motion.

II. Marital Communications Privilege

E-One contends that the trial court erred in admitting certain e-mails between Costello and his wife and in allowing Western to cross-examine Costello about those e-mails because they were protected under § 13-90-107, C.R.S.2005. We conclude that E-One lacks standing to raise this issue.

Statutory interpretation is a question of law that we review de novo. Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283 (Colo.App.2001). We must first look to the plain meaning of the statute, and if the language is clear and the intent of the General Assembly may be discerned with certainty, we need not resort to other rules of statutory interpretation. Samaritan Inst. v. Prince-Walker, 883 P.2d 3 (Colo.1994).

Section 13-90-107(1), C.R.S.2005, which sets forth the marital communications privilege, provides in part:

There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(a)(I) [With an exception not relevant here] a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage ....

Prior to trial, Costello moved to exclude all communications with his wife that were protected by the marital communications privilege. The trial court denied the motion, admitted the e-mails into evidence, and allowed Western to cross-examine Costello regarding them.

E-One contends that the e-mails were protected marital communications, and therefore, Costello could not be required to testify about those communications. However, we conclude that the marital communications privilege is personal to the spouses and may not be invoked by a third party.

As noted, the introductory language of § 13-90-107(1) states that "[t]here are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate." In People v. Lucero, 747 P.2d 660, 666 (Colo.1987)(quoting Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 909, 63 L.Ed.2d 186 (1980)), the supreme court stated that the "privilege against adverse testimony by a spouse has continued to receive recognition in modern times because of `its perceived role in fostering the harmony and sanctity of the marriage relationship.'" See also Petro-Lewis Corp. v. Dist. Court, 727 P.2d 41, 43 (Colo.1986)("The testimonial provisions of the marital privilege are designed to protect the sanctity and tranquility of the marital relationship from the disruption attendant to adverse spousal testimony.").

Accordingly, we conclude the language of the statute and the supreme court's interpretation of that language demonstrate that the purpose of the privilege is to protect spouses, not third parties. See People v. Palomo, 31 P.3d 879, 885 (Colo.2001)(recognizing that "[c]ourts routinely deny defendants the standing to assert a third party's right").

We are not persuaded otherwise by the opinions of other divisions of this court in Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971), and People v. Covington, 988 P.2d 657 (Colo.App.1999), rev'd on other grounds, 19 P.3d 15 (Colo.2001).

In Stauffer, the plaintiff attempted to invoke the physician-patient privilege on behalf of her mother to prevent the defendant physician from presenting testimony that would impeach the plaintiff, even though her mother was not a party to the lawsuit. The trial court overruled the objection and allowed the defendant to testify.

On appeal, the defendant maintained that his testimony was proper because the privilege was personal to the mother and, therefore, could not be invoked by the plaintiff. The division disagreed, concluding that "[w]here the patient is not a party to the action and is not present or represented by counsel in the courtroom, the mandate of the statute directs the court to enforce the privilege unless a proper waiver is obtained, or a party to the proceedings protects the privilege, as in the case before us." Stauffer, supra, 30 Colo.App. at 362, 492 P.2d at 864-65.

In Covington, the defendant was charged with second degree assault after he fired a shot which struck his wife. While treating the wife, a physician assistant photographed the wife's wounds. Prior to trial, the wife filed a motion in limine invoking her physician-patient privilege. However, the trial court allowed the physician assistant to testify as to the foundation for the admission of the photographs. Subsequently, a nontreating physician testified that based on the photographs, the actual wound caused serious bodily injury, a required element of second degree assault. The defendant moved to strike the physician assistant's testimony as violative of the wife's physician-patient privilege. The trial court denied his motion.

In reversing the defendant's conviction for second degree assault, a division of this court relied on Stauffer, concluding that the trial court had erred by not allowing the defendant to invoke the wife's physician-patient privilege. Covington, supra.

The supreme court granted certiorari review on unrelated issues. In a footnote, the supreme court observed that no one had raised the issue of whether the defendant had standing to invoke the privilege. People v. Covington, 19 P.3d 15, 19 n. 3 (Colo.2001). Although the court declined to address that issue, it cited four cases from other states which all held that the privilege was personal, and therefore, a defendant who was not the holder of the privilege lacked standing to raise it. See Knight v. State, 207 Ga.App. 846, 429 S.E.2d 326 (1993)(holding that the defendant had no standing to assert a privacy right in his wife's medical records); People v. Wood, 447 Mich. 80, 523 N.W.2d 477 (1994)(recognizing that Michigan courts have declined to allow litigants in civil cases to invoke the privileges of third parties); Osborn v. Fabatz, 105 Mich.App. 450, 306 N.W.2d 319 (1981)(same); State v. Evans, 802 S.W.2d 507 (Mo.1991)(holding that the defendant had no standing to object to the introduction of his girlfriend's medical records because the physician-patient privilege is personal to the patient).

Although the foregoing cases involved the patient-physician privilege, our conclusion that the marital communications privilege is personal to the spouses is supported by decisions from other courts. See Sommerfeld v. Griffith, 173 Minn. 51, 216 N.W. 311 (1927)(bank officials sued by wife whose husband had fraudulently persuaded her to convey property to them, may not invoke the statute protecting communications between husband and wife); State v. Szemple, 135 N.J. 406, 640 A.2d 817 (1994)(the marital communications privilege is personal to the spouses, and does not apply to third parties); People v. Melski, 10 N.Y.2d 78, 217 N.Y.S.2d 65, 176 N.E.2d 81 (1961)(spousal privilege belongs to the spouse against whom the testimony is offered); Diehl v. Wilmot Castle Co., 26 Ohio St.2d 249, 271 N.E.2d 261 (1971)(statutory privilege is personal to husband and wife and may not be invoked by a third party).

We recognize that the circumstances presented here are more complex because Costello, the holder of the privilege, attempted to invoke its protection during trial. However, we...