687 F.2d 1361 (10th Cir. 1982), 81-1531, Harris v. Illinois-California Exp., Inc.

Docket Nº:81-1531, 81-2496.
Citation:687 F.2d 1361
Party Name:Kimberly HARRIS, Individually, and as Personal Representative of the Estate of Donnie L. Harris, Deceased, and Sherry L. Harden, Plaintiffs-Appellees, v. ILLINOIS-CALIFORNIA EXPRESS, INC., Transport Indemnity Company, Frank H. Williams, Sam Tanksley Trucking, Inc., Excalibur Insurance Company, Ronald W. Head, Defendants-Appellants, and William D. H
Case Date:September 03, 1982
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1361

687 F.2d 1361 (10th Cir. 1982)

Kimberly HARRIS, Individually, and as Personal

Representative of the Estate of Donnie L. Harris,

Deceased, and Sherry L. Harden,

Plaintiffs-Appellees,

v.

ILLINOIS-CALIFORNIA EXPRESS, INC., Transport Indemnity

Company, Frank H. Williams, Sam Tanksley Trucking,

Inc., Excalibur Insurance Company,

Ronald W. Head, Defendants-Appellants,

and

William D. Harden, Defendant-Appellee.

Nos. 81-1531, 81-2496.

United States Court of Appeals, Tenth Circuit

September 3, 1982

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Joseph Goldberg and William H. Carpenter, Albuquerque, N. M. (Bette R. Velarde, Albuquerque, N. M., and John G. Yantis of Lusk, Yantis, Mahn & Carter, Chattanooga, Tenn., with them on the brief), for plaintiff-appellee Kimberly Harris.

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George Foster Hannett, of Hannett, Hannett & Cornish, Albuquerque, N. M. (George J. Hopkins, of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., with him on the brief), for plaintiff-appellee Sherry L. Harden and defendant-appellee William D. Harden.

Kathleen Davison Lebeck and Richard C. Civerolo of Civerolo, Hansen & Wolf, Albuquerque, N. M., for defendants-appellants Illinois-California Express, Inc., Transport Indemnity Company and Frank H. Williams.

LeRoi Farlow of Farlow, Simone & Roberts, Albuquerque, N. M., for defendants-appellants Sam Tanksley Trucking, Inc., Excalibur Ins. Co. and Ronald W. Head.

Before BARRETT, BREITENSTEIN and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

These appeals are taken by defendants in the trial court against whom jury verdicts were returned and judgments entered thereon for damages incurred as a result of a three vehicle accident which occurred near Clines Corners, New Mexico, on January 29, 1979. The direct appeal is No. 81-1531. The appeal from the trial court's denial of a motion for new trial is No. 81-2496. The appeals were consolidated.

The action was filed on August 1, 1979 by Kimberly Harris individually and as personal representative of the estate of Donnie L. Harris, her late husband. On the day of the accident, the Harrises were passengers in a car driven by William D. Harden. Sherry L. Harden, William's wife, was also a passenger in the car. Kimberly Harris' original complaint named as defendants the drivers, owners, and insurers of the other two vehicles involved in the accident, both of which were trucks. The named defendants were: Frank H. Williams, Illinois-California Express Inc. (ICX), the owner of the truck driven by Williams, and Transport Indemnity, ICX's insurer; Ronald Head, Sam Tanksley Trucking Inc., owner of the truck driven by Head, and Excalibur Insurance Company, Tanksley's insurer (hereinafter collectively referred to as original defendants).

The accident occurred about 9:00 p. m. in the westbound lanes and shoulder of Interstate Highway I-40 on a stretch known as "Misery Hill" which is an incline on the four-lane highway which reaches the crest of a hill. The four-lane is separated by a median of grass and mud. The eastbound lanes are elevated above the westbound lanes. At the time of the accident, visibility was reduced to only a few car lengths due to fog and snow. The road was slick with ice from the top of the hill to the bottom in both lanes. The ICX truck, westbound, was the first vehicle involved in the accident. It lost traction on Misery Hill as the truck-trailer approached a curve to its left. Williams, the driver, thought he saw a truck in front of his vehicle. He applied his brakes to reduce speed, hoping to maintain control. The ICX truck skidded from the right to the left-hand lane and came to rest blocking the roadway. Williams did not set out flares. It was conflicting as to whether the ICX truck had its flashers on. Within a few seconds, the Harden Honda passenger vehicle crashed into the ICX truck. The right front of the Honda struck the wheels between the double trailers of the ICX truck. Almost simultaneously, the Tanksley trailer-truck struck the left side of the Harden Honda passenger car, forcing the Honda to impact with the ICX truck.

Harris' complaint was based upon diversity of citizenship. It is undisputed that as between Harris and the original defendants complete diversity existed. Subsequent to the filing of the original complaint, on October 19, 1979, the defendants filed a third-party complaint against William D. Harden as third-party defendant. On February 11, 1980 Harden answered the complaint and cross-claimed against the defendants, as third-party complainants.

On February 12, 1980 Sherry Harden moved to intervene as a party-plaintiff in

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the action filed by Kimberly Harris. Sherry Harden's motion to intervene was unopposed. On February 27, 1980 the motion was granted. Her intervention complaint asserted claims against the original defendants, but not against her husband, William. Sherry Harden and William Harden are both citizens of the State of Georgia. At this point, William Harden was not a defendant in Kimberly Harris' action; accordingly, complete diversity still existed between the plaintiffs, Kimberly Harris and Sherry Harden, and all of the defendants.

Kimberly Harris then moved to join William Harden as a defendant in her action. Her motion was granted and she filed an amended complaint which asserted an independent cause of action against William Harden. The motion and an order granting the motion were filed and granted on March 12, 1980. At this point, William Harden became a defendant to an action in which his wife had become a plaintiff. Thus, there were citizens of the same state on opposing sides of the action. The original defendants filed a motion to dismiss for lack of diversity jurisdiction on March 27, 1980. They contended that as a named defendant William Harden destroyed diversity jurisdiction. The defendants, for reasons unexplained in the record, subsequently withdrew this motion.

At trial, then, Sherry Harden was aligned as a plaintiff and William Harden was aligned as a defendant. The cross-claims of William Harden asserted a claim against the original defendants only. Sherry Harden did not assert a claim against William Harden and he did not assert a claim against her.

After an eight-day jury trial on all claims, the jury answered special verdict questions and found 40% negligence on the part of the Tanksley defendants, 60% negligence on the part of the ICX defendants and 0% negligence on the part of William Harden. Kimberly Harris was awarded damages in the amount of $400,000 individually and $400,000 in her capacity as personal representative of the estate of Donnie Lee Harris. Sherry Harden was awarded damages in the amount of $30,000. On his cross-claim, William Harden was awarded damages in the amount of $100,000.

On appeal in No. 81-1531, appellants present eight contentions of error: (1) the trial court and this court lack jurisdiction of this case; thus, the judgment is void and the case should be dismissed, (2) the trial court erred in admitting evidence regarding Amy Jolene Harris because such evidence is not relevant or probative and served only to inflame the passions and prejudices of the jury, resulting in a verdict based on jury sympathy, (3) the trial court erred in denying the motion of ICX and Tanksley to join plaintiffs' and co-defendants' insurance companies because those companies had a subrogated interest and because their joinder was necessary to guarantee equal protection and due process of the defendants, (4) the testimony of Leroy Banes was immaterial and prejudicial against Ronald Head and Tanksley and thus erroneously admitted, (5) the jury verdict was inconsistent and should be reversed, (6) the court erred in granting plaintiff's motion dismissing the issue of negligence on the part of Sherry Harden, (7) the court erred in its failure to instruct the jury that Kimberly Harris is required by New Mexico law to mitigate her damages, and (8) the case should be remanded because of New Mexico's pure form of comparative negligence.

In No. 81-2496, appellants contend that the trial court erred in denying their post-judgment motions for relief from judgment because of "newly discovered evidence" and to take additional depositions in support thereof, filed, respectively, pursuant to Fed.R.Civ.P. 60(b) and 27(b), 28 U.S.C.A.

We will discuss the issues in the order of importance we view them dispositive of this appeal. It should be observed that no contention has been posited challenging the sufficiency of the evidence.

I.

Appellants contend that both the trial court and this court lack diversity jurisdiction

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because "plaintiff-in-intervention Sherry Harden is a George (sic) resident and defendant David Harden (William D. Harden) is a Georgia resident. Plaintiff Harris alleging Tennessee residence originally filed suit against ICX and Tanksley claiming diversity of citizenship and amount in controversy in excess of $10,000. 28 U.S.C. 1332 .... Plaintiff subsequently amended her complaint to include David Harden, a Georgia resident, as a defendant .... Subsequently, Sherry Harden (wife of David) moved to intervene as a plaintiff ... and subsequently filed her complaint-in-intervention claiming damages against defendants ICX, Williams, Transport, Tanksley, Head and Excalibur." (Brief of Defendants-Appellants, p. 12, Case No. 81-1531).

The above recital of facts is erroneous in one vital respect: Sherry Harden's motion to intervene as a party-plaintiff in Harris' action was filed on February 12, 1980, and the order granting the motion was entered on February 27, 1980. It was not until March 12, 1980, that Kimberly Harris' motion to amend her complaint, so as to assert an independent cause of...

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