152 F.3d 1224 (10th Cir. 1998), 96-5200, Blanke v. Alexander

Docket Nº:96-5200.
Citation:152 F.3d 1224
Party Name:Annette A. BLANKE, individually and as mother and guardian of Jesse Blanke and Krista Blanke, Minors, Plaintiff-Appellee, v. Billy E. ALEXANDER, individually; Builders Transport, Inc., a foreign corporation; Planet Insurance Company, a/k/a Reliance National Indemnity Company, a foreign corporation, Defendants- Appellants.
Case Date:August 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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152 F.3d 1224 (10th Cir. 1998)

Annette A. BLANKE, individually and as mother and guardian

of Jesse Blanke and Krista Blanke, Minors,



Billy E. ALEXANDER, individually; Builders Transport, Inc.,

a foreign corporation; Planet Insurance Company,

a/k/a Reliance National Indemnity

Company, a foreign




No. 96-5200.

United States Court of Appeals, Tenth Circuit

August 5, 1998

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[Copyrighted Material Omitted]

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Daniel E. Holeman (Galen L. Brittingham and James N. Edmonds with him on the brief), of Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, Oklahoma, for Defendants-Appellants.

Mark S. Thetford (Cheryl L. Bisbee with him on the brief), of Stipe Law Firm, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN, District Judge. [*]

HOLLOWAY, Circuit Judge.

Plaintiff-Appellee Annette Blanke (Annette), 1 on behalf of herself and her minor daughter, Krista Blanke (Krista), brought the present action in the United States District Court for the Northern District of Oklahoma under diversity jurisdiction, alleging negligence causing a December 7, 1994, collision. After a jury trial and verdict in favor of plaintiffs, judgment was entered for them on September 26, 1995. Following the denial

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of defendants' post-judgment motion for a new trial and an alternative motion for a remittitur, defendants timely filed a notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

I. Background

This action arose out of a December 7, 1994, collision between a 1986 Ford Bronco driven by Annette and a flatbed tractor-trailer rig owned by defendant, Builders Transport, Inc., and driven by defendant, Billy Alexander. I Aplt.App. at 174-75; II Tr. at 192. At the time of the collision, Annette was driving northbound along State Highway 167 near the Port of Catoosa in northeast Oklahoma, with her minor children, Jesse and Krista. Prior to the accident, Alexander had been instructed by his employer, Builders Transport, to drive the rig to the Port of Catoosa to pick up a load. 2 I Tr. at 73. Upon reaching his destination after nightfall, pursuant to his instructions Alexander pulled the rig off Highway 167 onto a road that led to an entrance to the Port of Catoosa. After exiting the highway, Alexander discovered that the entrance was gated and closed and he stopped the rig. At that point no part of the rig was situated on Highway 167. Id. at 78.

A passing driver who spotted Alexander contacted him by C.B. radio and advised him of an open entrance north of Alexander's location. Alexander surveyed his situation and determined that there was insufficient room to permit him to turn the rig around and return to the highway in a forward direction. 3 Alexander decided that the only way to exit the closed entrance was to back the rig straight across the highway and then head north toward the open entrance. Id. at 82-84. As Alexander backed the rig across the highway, Annette struck the trailer with the Bronco. 4 Id. at 86. At the time of the collision, the rig was situated approximately halfway across the highway, blocking the northbound lane. Id. at 86-87. Annette also testified that although it was dark, nothing was obstructing her view prior to the collision. However, she does not recall seeing the rig prior to impact. 5 II Tr. at 217.

As a result of the accident, Annette suffered an open Grade II fracture of her right femur and a fracture of her right ankle, the medial malleolus on the right side, III Aplt.App. 419-20, as well as extensive bruises. II Tr. at 202. Her daughter, Krista, complained of pain in her hand and back. Id. at 170, 215. Additionally, Krista testified that she was sad after the accident and scared that her mother and brother were going to die. Id. at 171.

Following the December 7, 1994, collision, Annette filed the present action on her own behalf and for her daughter Krista against defendants in the district court. I Aplt.App. at 1. In addition to naming Alexander and his employer, Builders Transport, as defendants Annette also named Planet Insurance Company, which is the excess liability insurance

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carrier for Builders Transport that had a contract of liability insurance covering Builders in effect on the day of the collision. Id. at 1, 4-5, 175; Aplt. Brief at 19. The jury found for plaintiffs and awarded $500,000 to Annette Blanke and $17,000 for her daughter, Krista. I Aplt.App. at 238-42. However, the jury also found Annette ten percent negligent and the district court accordingly reduced her award to $450,000. Id. at 239; II Aplt.App. at 243.

Defendants-appellants' appeal presents several claims of error: (1) the district judge erred in permitting the jury to be informed of the presence of liability insurance coverage and in referring to the insurer Planet in his instructions; (2) the judge erred in submitting the permanent injury claim to the jury; (3) the judge failed to instruct on cause versus condition as requested; (4) the verdict is not supported by the record; and (5) the court erred in overruling defendants' motions for a directed verdict and for a new trial and defendants' alternative motion for a remittitur. Brief in Chief of Appellants at 2. Finding no reversible error, we affirm.

II. Analysis

Since the present case is grounded on diversity jurisdiction, we first note that Oklahoma provides the substantive rules of law which govern this action. "A federal court sitting in diversity must apply the law of the forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the objective that the result obtained in the federal court should be the result that would be reached in an Oklahoma court." Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994). In this respect, we are obligated to apply Oklahoma law as "announced by that state's highest court." Hays v. Jackson National Life Ins. Co., 105 F.3d 583, 587 (10th Cir.1997). Moreover, a federal district court's state-law determinations are entitled to no deference and are reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 239-40, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Wood, 38 F.3d at 512.

  1. References to Liability Insurance

    We first address whether the district judge erred in permitting the jury to hear references to the insurer and about the existence of liability insurance coverage, and in referring to Planet Insurance Company in his instructions in light of 47 O.S.1991 § 169 which permits naming a motor carrier's insurer and suing it directly. 6

    Prior to trial, defendants filed a motion in limine seeking to exclude reference to defendant, Planet Insurance, as well as to the existence of insurance coverage on the grounds of relevance and prejudice. I Aplt.App. at 13-22. The district court, in a written order, denied that part of defendants' motion seeking to withhold the name of the insurance company and the existence of liability insurance coverage. Citing Oklahoma precedent, the district judge reasoned that since an insurance company is directly liable under § 169, 7 the general rule against references to liability insurance does not apply. I Aplt.App. at 186-89. 8

    Reference to defendant Planet Insurance was made on several occasions during trial:

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    (1) when the case first came on for trial, the district judge announced the case number and identified all parties by name, including Planet Insurance, I Tr. at 3; (2) during voir dire of the jury panel, the district judge asked members of the panel whether any of them, or any of their close friends or relatives had "ever been employed by the Planet Insurance Company also known as Reliance Insurance Company," id. at 9; (3) during plaintiffs' counsel's voir dire of the jury panel, plaintiffs' counsel inquired,

    One thing I want to ask. There is--Mr. Alexander is not here, the representative from Planet Insurance is not here. Are you going to hold that against my client that they didn't show up? I don't know what it shows to you, it might show that they have confidence. I don't know. But are you going to attribute anything to the fact that they didn't show up here today against my client?

    All right.

    (Id. at 28); (4) during plaintiffs' counsel's opening statement he said that Annette

    remembers seeing a couple of sets of car lights, and that's all she remembers. She doesn't remember anything else because what she didn't know was, just minutes before, while she was dropping the kids off, Mr. Billy Alexander had driven a Builders Transport, insured by the Defendant Planet Insurance, into this southern entrance.

    Id. at 50; and (5) over defendants' objection, the name of "Planet Insurance Company a/k/a Reliance National Indemnity Company" as a defendant appeared in the case caption on the title page of the jury instructions as well as on the verdict forms, and a copy of the instructions was given to the jury for purposes of deliberations. I Aplt.App. at 197; Response Brief of Appellees, Ex. 1. However, no mention was made either of Planet Insurance or liability coverage in the district court's substantive instructions on the law. I Aplt.App. at 198-237.

    Defendants strenuously argue that prejudicial error occurred when the district judge permitted the references to the existence of liability insurance and Planet Insurance Company's presence as a defendant. Brief in Chief of Appellants at 13-27; Reply Brief of Appellants at 3-17. Defendants say that federal procedural law applies in this diversity case, citing Gilbert v. Cosco, Inc., 989 F.2d 399, 402 n. 2 (10th Cir.1993) ("When our jurisdiction is based upon diversity, we apply state substantive law...

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