804 F.2d 1167 (10th Cir. 1986), 85-1665, Quinones v. Pennsylvania General Ins. Co.

Docket Nº:85-1665, 85-1680.
Citation:804 F.2d 1167
Party Name:Lubin QUINONES, Plaintiff-Appellant, v. PENNSYLVANIA GENERAL INSURANCE COMPANY, Defendant-Appellee. Lubin QUINONES, et al, Plaintiffs-Appellees, v. PENNSYLVANIA GENERAL INSURANCE COMPANY, Defendant-Third-Party Plaintiff- Appellant, v. William G. MOWAD, Third-Party Defendant-Appellee.
Case Date:November 10, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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804 F.2d 1167 (10th Cir. 1986)

Lubin QUINONES, Plaintiff-Appellant,



Lubin QUINONES, et al, Plaintiffs-Appellees,



Defendant-Third-Party Plaintiff- Appellant,


William G. MOWAD, Third-Party Defendant-Appellee.

Nos. 85-1665, 85-1680.

United States Court of Appeals, Tenth Circuit

November 10, 1986

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Norman E. Todd (Keith S. Burn with him on the brief) of Keith S. Burn, P.A., Las Cruces, N.M., for plaintiff-appellant.

Neil E. Weinbrenner of Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, N.M., for defendant-appellee

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and defendant-third-party plaintiff-appellant.

Temple B. Ingram, Jr. of Studdard, Melby, Schwartz, Crowson & Parrish, El Paso, Tex., for third-party defendant-appellee.

Before BARRETT, McKAY and TACHA, Circuit Judges.

McKAY, Circuit Judge.

I. Facts

The plaintiff, Lubin Quinones, a resident of Dona Ana County, New Mexico, filed this action on an uninsured motorist policy issued by the defendant, Pennsylvania General Insurance Company (Penn General), a corporation organized under the laws of Pennsylvania, in the District Court of Dona Ana County, New Mexico. The action arose out of a claim for damages from an automobile collision occurring in El Paso, Texas, between plaintiff's vehicle and one driven by an uninsured motorist, William George Mowad, who is a citizen and resident of El Paso. Penn General removed the suit to the United States District Court for the District of New Mexico and filed a third-party complaint for indemnification or subrogation against Mr. Mowad. In addition, Penn General filed a motion to transfer the case to the United States District Court for the Western District of Texas. This motion was denied by an order directing that the case be tried in Las Cruces, New Mexico.

The third-party defendant, Mr. Mowad, was served pursuant to Rule 4(f) of the Federal Rules of Civil Procedure in El Paso, Texas, which is located approximately forty miles from Las Cruces, New Mexico. Mr. Mowad filed a motion to dismiss the third-party complaint, asserting that the court lacked personal jurisdiction and that Fed.R.Civ.P. 4(f) was unconstitutional if interpreted so as to expand personal jurisdiction beyond a state's boundary as opposed to merely prescribing satisfactory service of process in certain delineated situations. The trial court granted this motion and dismissed the third-party complaint.

The case was actually tried in Albuquerque, New Mexico. A Judgment on Special Verdict was entered, reflecting that Mr. Mowad was 100% negligent and that such negligence was the proximate cause of damage to Mr. Quinones. The jury found that Mr. Quinones had suffered damages in the amount of $25,000.00, and judgment was entered against Penn General for that amount plus costs and interest.

Plaintiff, Lubin Quinones, appeals the trial court's rulings disallowing certain testimony with respect to the extent of his economic loss. He also appeals the court's refusal to instruct the jury that recovery for past medical expenses is allowable even though such expenses had already been paid by Penn General under a separate clause in the insurance contract.

The defendant and third-party plaintiff, Penn General, appeals the dismissal of its third-party complaint against Mr. Mowad for lack of personal jurisdiction. In the alternative, if this court does not reverse the trial court's dismissal of the third-party complaint, it appeals the trial court's refusal to transfer the case to El Paso, Texas. We examine each contention in turn.

II. Evidentiary Rulings

Mr. Quinones was a self-employed watch repairman who owned a watch repair and jewelry store from 1970 to 1981 known as The Little Shop. He performed the watch repair work for the shop. After the 1981 accident, he was unable to continue working at his trade. To prove the loss-of-earning-capacity component of his damages, he attempted to introduce testimony from three witnesses, all of which was disallowed by the trial court. The primary evidence left before the jury establishing the dollar value of his loss of earning capacity was his income tax returns for the years 1978 through 1981, showing income of $1,548, $4,743, $0, and $0, respectively.

First, Mr. Quinones appeals the trial court's exclusion of certain testimony of Mr. Glenn Cutter, the operator of two jewelry stores for whom Mr. Quinones had performed some contract watch repair work in the 1970's. At the time of trial in

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1985, Mr. Cutter employed a full-time watchmaker to do such work. When Mr. Cutter was asked how much he paid his current watchmaker, the court sustained Penn General's objection that this testimony failed to show the earning capacity of Mr. Quinones.

An evidentiary ruling will only be reversed if the record shows that the trial court abused its discretion. Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331 (10th Cir.1984); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978). Mr. Quinones' counsel failed to lay a foundation regarding when Mr. Cutter last used the services of Mr. Quinones and what he paid him, and also failed to make an offer of proof as required under Fed.R.Evid. 103(a)(2). There is nothing in the record which demonstrates that a 1985 salary paid by Mr. Cutter to his full-time watchmaker was relevant to Mr. Quinones' loss of earning capacity sustained in 1981. Since "the determination of whether proffered evidence is relevant is a matter committed to the discretion of the trial court," Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir.1983), we find that the trial court in this instance did not abuse its discretion in disallowing Mr. Cutter's testimony. See also Whiteley v. OKC Corp., 719 F.2d 1051, 1057 (10th Cir.1983).

Second, Mr. Quinones appeals the trial court's exclusion of certain testimony of Mr. Quinones himself concerning the fate of his shop, which closed in 1981. Penn General asserts that such evidence is directed toward proving lost business profits or loss of going-concern value of Mr. Quinones' business rather than toward proving Mr. Quinones' lost earning capacity. Since a claim for lost profits in a torts case constitutes special damages which must be specifically stated under Fed.R.Civ.P. 9(g), and neither the complaint nor the pretrial order contained a claim for these damages, Penn General argues that the trial court's ruling was correct. See Moore v. Boating Industry Associations, 754 F.2d 698, 717 (7th Cir.1985) (lost profits considered special damages in tort case); Burlington Transp. Co. v. Josephson, 153 F.2d 372, 377 (8th Cir.1946) (must allege specific facts showing special damages under Fed.R.Civ.P. 9(g) to apprise defendant of nature of claim against him). Mr. Quinones counters that harm to the business that he owned and in which he worked can be recovered as part of lost earning capacity.

We need not reach the somewhat thorny issue of whether the business' loss of revenues represent losses due to Mr. Quinones' inability to repair watches, and thus may be a probative measure of his lost earning capacity, or whether the evidence of decreased revenues speaks only to a lost profits claim, which Mr. Quinones failed to specially plead. The only discussion in the record regarding decreased business revenue was as follows:

[Mr. Todd:] Do you still own The Little Shop in Las Cruces?

[Mr. Quinones:] No, sir, not any more.

[Mr. Todd:] What happened to The Little Shop?

Mr. Weinbrenner: I am going to object to that. There is no claim for loss--

The Court: Sustained.

Record, vol. 2, at 63. This cursory reference to The Little Shop's demise without an adequate foundation supporting its relevance with respect to lost earning capacity, and without an offer of proof to demonstrate such relevance, leaves us with no alternative under the cases cited above but to find that the trial court did not abuse its discretion in sustaining Penn General's objection and disallowing the evidence.

Finally, Mr. Quinones appeals the trial court's exclusion of certain testimony of an economist, John Meyers, Ph.D., regarding Mr. Quinones' lost earning capacity. In order to determine Mr. Quinones' future lost income, Dr. Myers attempted to extrapolate from published United States Department of Labor statistics on hourly wage figures for workers in the industrial category of "production workers in jewelry manufacturing." Record, vol. 2, at 114. No Department of Labor data were available

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which specifically reported on watchmakers or watch repairmen. The court disallowed the testimony as irrelevant, finding that there was no proper foundation for using the wage figures for factory workers who manufactured jewelry in computing the lost income of a self-employed watch repairman.

Mr. Quinones argues that Dr. Meyers' testimony was proper under Fed.R.Evid. 702 and 703, which deal with the admissibility of expert testimony. The admissibility of such testimony, however, is within the broad discretion of the trial court, and a district court's admission or exclusion of expert testimony is reviewed for abuse of discretion only. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962); Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1523 (10th Cir.1984), aff'd on other grounds, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985); Ramsey v. Culpepper, 738 F.2d 1092, 1101 (10th Cir.1984); United Telecommunications v. American Television & Communications Corp., 536 F.2d 1310, 1317 (10th Cir.1976). We find that the trial court did not...

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