Harris v. Quinones

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation507 F.2d 533
Docket NumberNos. 74-1433,74-1519,s. 74-1433
PartiesAlton HARRIS and United States of America, Plaintiffs-Appellees, v. Angie QUINONES, and Wesco Insurance Company, Defendants-Appellants.
Decision Date11 December 1974

Edward E. Triviz, Las Cruces, N. M. (Victor R. Ortega, U.S. Atty., and Mark C. Meiering, Asst. U.S. Atty., Albuquerque, N. M., on the brief), for plaintiffs-appellees.

William W. Bivins, Las Cruces, N. M., for defendant-appellant Angie Quinones.

LeRoi Farlow, Albuquerque, N. M., for defendant-appellant Wesco Ins. Co.

Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

These consolidated appeals stem from a car-motorcycle accident which occurred June 23, 1972, in Las Cruces, New Mexico. In the first appeal, Angie Quinones, the driver of the car involved in the accident and the defendant below, appeals peals from an order granting a new trial to the plaintiffs, Harris, the driver of the motorcycle, and the United States, 1 following a jury verdict in her favor at the first trial. The second appeal is brought by Quinones' insurance carrier, Wesco Insurance Company (Wesco), from a declaratory judgment holding that at the time of this accident the car driven by Quinones was covered by an insurance policy issued by Wesco.

I.

Angie Quinones was driving her car in a westerly direction on Mesquite Street in Las Cruces in the late afternoon of June 23, 1972. Having stopped at an intersection where Mesquite crosses Main Street-- a four-lane highway running generally North-South-- Miss Quinones proceeded across the intersection in spite of the fact that, because of the glare from the sun, she was unable to clearly observe traffic on Main to which she was obligated to yield. At the far side of the intersection her car collided with a motorcycle driven by plaintiff Harris who was traveling in a southerly direction on Main. Neither driver, apparently, observed the other until the moment of impact.

At the first trial the jury returned a verdict in favor of Miss Quinones, finding that she was not 'guilty' of negligence and that the plaintiff Harris was 'guilty' of contributory negligence. On Motion by Harris, the trial judge granted new trial on the ground that the evidence was insufficient to support the verdict. At the second trial Harris was awarded a judgment of $40,000 and the United States was awarded $3,443.80 for medical services provided to Harris. Miss Quinones contends that the trial court erred in granting a new trial to Harris following the first verdict in her favor. We disagree.

We have consistently recognized that a motion for a new trial made on the ground that the verdict of the jury is against the weight of the evidence normally presents a question of fact and not of law and is addressed to the discretion of the trial court. Community National Life Insurance Company v. Parker Square Savings and Loan Association, 406 F.2d 603 (10th Cir. 1969); Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967); Peter Kiewit Sons Company v. Clayton, 366 F.2d 551 (10th Cir. 1966); Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811 (10th Cir. 1962). On review, we will not reverse a decision granting or refusing to grant a motion for new trial absent an unusual situation, Moore v. Shultz,491 F.2d 294 (10th Cir. 1974), U.S.App.Pndg., or the showing of a gross abuse of discretion on the part of the district court judge, Holmes v. Wack, 464 F.2d 86 (10th Cir. 1972).

From the jury's verdict, which contained an unauthorized written message from the foreman, 2 the trial judge was here able to deduce that the jury, in finding the defendant 'not guilty': (1) had ignored the uncontroverted evidence that Miss Quinones had proceeded blindly across the intersection; and (2) had relied upon evidence of little or no credible weight in finding Harris 'guilty' of contributory negligence. The cases cited by appellant for the rule that failure to keep a lookout may constitute contributory negligence, and that evidence of such a failure may support a verdict, are inapposite. In each of those cases there existed strong evidence, lacking here, that the party charged with failure to keep a lookout had either seen the other vehicle and had failed to react properly, or that he clearly should have been able to see the other party (or vehicle) involved in the accident prior to its occurrence. Here the only evidence tending to show that Harris had failed to keep a proper lookout was conjectural testimony that if Harris had seen the Quinones' vehicle he may have been able to avoid the accident. No witness testified that under the conditions presented here Harris should have been able to see the Quinones' vehicle. In fact, the only witness who was in the near vicinity of Harris (following at an unspecified distance) did not herself see the Quinones' vehicle until near the moment of impact and she also observed that Harris appeared to be operating the motorcycle in a careful immediately prior to the collision. The mere fact that Harris' view of this wide intersection was unobstructed not strong evidence that he should have been aware of the Quinones vehicle suddenly approaching from the side.

Similarly, the evidence presented that Harris had been drinking and that he was speeding was so slight that it lent little or no weight to the allegation of contributory negligence. Finally, evidence that Harris did or did not take 'evasive' action is inconsequential where, as here, no convincing evidence was offered that he had or should have had an opportunity to take such action.

Under the totality of these circumstances evidenced by our careful review of the entire record we hold that the trial court did not err in ruling that the verdict returned was against the decided weight of the evidence. The trial court did not commit a gross abuse of discretion.

II.

In this consolidated appeal Wesco appeals from an adverse declaratory judgment holding that on the date of the accident in the above cause there was in existence a valid insurance policy issued by it covering the vehicle driven by Angie Quinones and that Wesco in bad faith had failed to negotiate a settlement with the plaintiffs Harris and the United States and was therefore liable for an excess judgment award.

On January 13, 1972, Wesco issued an insurance policy to Joe Quinones (Angie's father) covering two vehicles, one of which was involved in this accident and was driven by Angie Quinones, an 'omnibus insured' under the policy. The policy period was from January 13, 1972, through January 13, 1973. The premiums for this policy were financed through Southwest Investment Company (S.E.C.), a finance company, in relation to which Wesco stood as a wholly-owned subsidiary. Joe Quinones executed a 'premium note' in favor of S.I.C. obligating himself to make monthly payments to S.I.C. Under the provisions of the note, S.I.C., upon default of Quinones, could opt to declare the note mature and collect the unpaid premiums. Also, Joe Quinones granted S.I.C. an irrevocable power of attorney to cancel his insurance policy with Wesco without notice to him upon default in payment. Joe did in fact miss a payment and was sent notice by S.I.C. that his insurance would be cancelled as of June 19, 1972. The accident here occurred June 23, 1972. On June 26, 1972, Joe went to the Wesco agent and signed a reinstatement form. It is unclear whether Joe was told at that time that the accident of June 23 would not be covered.

Prior to the trial of the personal injury suit between Angie Quinones and Harris, Wesco brought a declaratory judgment action in State court against Joe Quinones to determine if the policy was in force and effect on June 23. Angie Quinones and Harris were not named as parties. Joe did not answer or appear and the court entered a default judgment holding that the policy was not in effect on that date. After the personal injury trial (and the verdict against Miss Quinones), Angie Quinones and Harris brought a declaratory judgment action against Wesco in federal court, again on the issue of whether the policy was in force and effect on the date of the accident. Upon trial to the jury it was found that the policy was in effect on that date, and that Wesco had acted in bad faith in not negotiating for settlement of the case within the policy limits.

On this appeal Wesco contends the trial court erred in: (1) failing to dismiss the cause because of the res judicata effect of the prior state declaratory judgment; (2) instructing the jury as to the plaintiffs' 'theory of the case' and failing to give certain of Wesco's requested instructions; (3) failing to grant Wesco's motion to dismiss the claims in excess of the policy limits; and (4) in admitting certain allegedly prejudicial exhibits.

A.

Wesco contends that the prior state declaratory judgment which held that this insurance policy had been cancelled was binding not only upon Joe Quinones (the named insured), but also upon Angie Quinones and Harris, even though they were not named in that action, because they were not 'necessary parties' to a decision as to whether the policy was in effect on the date of the accident. It is well established that for the doctrine of res judicata to apply the prior judgment must be one between the same parties or their privies. Glass v. United States Rubber Company, 382 F.2d 378 (10th Cir. 1967); Wight v. Chandler, 264 F.2d 249 (10th Cir. 1959).

Wesco has not established that Angie Quinones was in privy with any party to the prior action. Wesco's cases cited for the proposition that Angie Quinones was not a 'necessary party' for a determination as to whether this policy had been cancelled are not persuasive inasmuch as Wesco had failed to show that under New Mexico law Angie's rights are solely derivative from the policyholder, and that as an 'omnibus insured' she did not have a...

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