Kathios v. General Motors Corp.

• Decision Date: 03 November 1988
• Docket Number: No. 88-1598,88-1598
• Citation: 862 F.2d 944
• Parties: Dennis KATHIOS, Plaintiff, Appellant, v. GENERAL MOTORS CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 944

862 F.2d 944

Dennis KATHIOS, Plaintiff, Appellant, v. GENERAL MOTORS CORPORATION, Defendant, Appellee.

No. 88-1598.

United States Court of Appeals, First Circuit.

Heard Nov. 3, 1988.

Decided Dec. 16, 1988.

Mark J. Welzenbach with whom Edward M. Kaplan and Sulloway Hollis & Soden, Concord, N.H., were on brief for plaintiff, appellant.

James M. Campbell with whom Richard P. Campbell, Matthew Kennedy, Timothy Wilton, Campbell and Associates, Boston, Mass., P.C. and Nicholas J. Wittner, Detroit, Mich., were on brief for defendant, appellee.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

SELYA, Circuit Judge.

This case offers food for thought in several senses of the phrase. Defendant says that plaintiff has had one bite of the apple and cannot take a second. Plaintiff contends that his initial bite was but a nibble, and that the fruit is not now forbidden. The district court found defendant's view of the prandial arrangements more palatable, and granted summary judgment accordingly. We affirm.

I. BACKGROUND

The facts germane to this appeal are not much in dispute. On August 16, 1981, plaintiff-appellant Dennis Kathios and two friends, Marc Spellman and Stephen Chick, mixed drinking and driving with predictably disastrous results. Following an afternoon of fishing and drinking beer, not necessarily in that order or priority, the trio repaired to Tortilla Flats (a restaurant in Portsmouth, New Hampshire) for food and additional doses of alcohol. At one point, the threesome left Tortilla Flats, replenished their funds, and returned to imbibe anew. When they departed for good in Spellman's car, a 1981 Camaro manufactured by defendant-appellee General Motors Corporation (GM), Spellman was behind the wheel. He was visibly intoxicated.

A police officer stopped the car. Spellman, emboldened by the grape, led police on a high-speed chase and eventually eluded the gendarmes. He and his passengers reached the Sand Dollar Bar in York, Maine, where their liquid intake continued. They left the bar in the wee hours of August 17. Spellman was still driving. By that time, he, Chick, and Kathios were indisputably intoxicated. When police again tried to halt the vehicle, Spellman took evasive action, but his luck had run out; the car crashed into a utility pole. Appellant sustained severe injuries, resulting in quadriplegia.

Initially, Kathios settled claims against Spellman ($100,000) and the Sand Dollar Bar ($100,233.33). He also brought a dram shop action in a New Hampshire state court against Tortilla of Portsmouth, Inc. (Tortilla), proprietor of Tortilla Flats. Kathios alleged that Tortilla breached statutory and common law duties of care by serving alcoholic beverages to the already crapulous Spellman. That case, which we shall call "Kathios I," was tried in May 1985. Plaintiff presented uncontested evidence that his "special damages"--that is, his lost earnings (past and future, reduced to present value), his hospital and medical bills to time of trial, and the present value of future-care expenses--exceeded $800,000. The jury returned a general verdict in Kathios's favor for $275,000.

Arguing that the award was inadequate in light of the evidence, plaintiff moved for an additur or a new trial on damages. The state court judge denied the motion. Plaintiff did not appeal. The $275,000 judgment, net of offsets for the other settlements, was satisfied.

Some two years later, Kathios took aim at a different target. He filed suit against GM in the United States District Court for the District of New Hampshire. The complaint alleged that the Camaro had been defectively designed because it lacked rear-seat shoulder harness, and that GM's negligence was a proximate cause of appellant's injuries. The defendant lost little time in moving for summary judgment. It contended that plaintiff's damages had been fully litigated in Kathios I, and that satisfaction of the resulting judgment extinguished any further claim. The district court allowed the motion. Kathios v. General Motors Corp., No. C-87-311-L, slip op. (D.N.H. Apr. 21, 1988) (Kathios II ) (unpublished). In substance, the court ruled that plaintiff was collaterally estopped from relitigating the amount of damages. Id. at 12.

II. ISSUE PRESENTED

This appeal presents a narrow, highly specific question. We phrase it thusly: can a plaintiff, having obtained a jury verdict that was subject to reduction under New Hampshire's comparative negligence statute, ¹ sue a new defendant for the same injuries and damages, after the first judgment has been satisfied?

Under Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), state law controls in this diversity action; and the parties agree that we should look specifically to New Hampshire jurisprudence.

III. DISCUSSION

As articulated by the highest court of the state, the doctrine of collateral estoppel bars a party from "contesting in a subsequent proceeding on a different cause of action any question or fact actually litigated and determined against [him] in a prior suit." Bricker v. Putnam, 128 N.H. 162, 512 A.2d 1094, 1097 (1986); see also Bricker v. Crane, 118 N.H. 249, 387 A.2d 321, 323 (1978) (same). In New Hampshire, the doctrine "is no longer grounded upon mechanical requirements of mutuality." Fiumara v. Fireman's Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir.1984). Instead, it "may be invoked ... by a party to a later case who was not a party or in privity with a party to the earlier case." Caouette v. Town of New Ipswich, 125 N.H. 547, 484 A.2d 1106, 1111 (1984); accord Sanderson v. Balfour, 109 N.H. 213, 247 A.2d 185, 187 (1968). Consequently, "[a] party who, after full litigation, has lost on an issue is thereafter barred from litigating the issue with new parties." Cutter v. Town of Durham, 120 N.H. 110, 411 A.2d 1120, 1121 (1980).

The New Hampshire Supreme Court has cautioned that "the preclusive effect of collateral estoppel extends only to matters that were actually litigated in the earlier case." Caouette, 484 A.2d at 1111. For this purpose, "an issue is actually litigated when it is 'properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.' " Id. at 1113 (quoting Restatement (Second) of Judgments Sec. 27, comment d); see also Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 693 (1987) (issue on which estoppel is sought "must have [been] resolved ... finally on the merits" in prior action). The core consideration is not whether a litigant put in his best case on the point during the first go-around, but whether he has had "a full and fair opportunity ... to litigate the issue barring him," Sanderson, 247 A.2d at 187. This benchmark has been achieved, GM asseverates, because Kathios I determined appellant's damages, taking into account the extent of his comparative fault, with binding effect. For analytic purposes, we split this assertion into its logical subsets.

A. Aggregate Damages. We think it obvious that the amount of damages was fully litigated in the state court. There, plaintiff averred in his writ that Tortilla should be held

fully liable, responsible and accountable for all damages that have been suffered by the plaintiff, including but not limited, to conscious pain and suffering, medical expense, loss of future earning capacity, and future medical care and treatment expenses which will be required due to the plaintiff's condition and all such other damages as are permissible by law or statute.

At trial in Kathios I, plaintiff pursued the course adumbrated by the writ. He presented plethoric proof on damages, including three expert witnesses. The judge charged on all the elements of a damage award. The jury set the sum. In denying Kathios's posttrial motion, the state judge necessarily rejected the argument that the jury verdict was unreasonably small. Plaintiff took no appeal.

We need polish this apple to no shinier a gloss. Appellant's counsel admitted during oral argument that the measure of damages for bodily injury would be the same in a dram shop suit and a product liability action. We are therefore constrained to conclude that the jury verdict in Kathios I, coupled with the unchallenged ruling upholding the award, caps any verdict which might be rendered in Kathios II. See O'Connor v. State, 126 A.D.2d 120, 512 N.Y.S.2d 536, 540 (3d Dept.) (where estate obtained tort verdict against bicyclist and later brought negligence action against State for same injuries, damages could not exceed total fixed in first action, since "issue was identical and common to both actions and was fully and fairly litigated with [plaintiff's] estate as an active participant in that trial"), aff'd, 70 N.Y.2d 914, 519 N.E.2d 302, 524 N.Y.S.2d 391 (1987). Thus, the resolution of the issue in Kathios I collaterally estops plaintiff from seeking redetermination of his damages in the instant action. See Cutter, 411 A.2d at 1121 (where no appeal was taken from prior judgment, decision was final and party was collaterally estopped from relitigating same issue in later case); see also Fiumara, 746 F.2d at 91 (similar).

Withal, a problem remains. Because the jury was charged in accordance with N.H.Rev.St.Ann. Sec. 507:7-a, see supra note 1, and only a general verdict was rendered, the panel could well have found aggregate damages in excess of $275,000 and reduced the award to that amount in consequence of appellant's relative fault. ² To illustrate, the jury might have determined $500,000 to be Kathios's aggregate damages, apportioned fault 45/55, and awarded him 55% of $500,000, viz. $275,000. Yet we know that, if the jury found appellant to be more than 50% at fault--that is, if his negligence was "greater than the causal negligence of the defendant," N.H.Rev.St.Ann. Sec. 507:7-a--he could not have recovered at all. Given the $275,000 award, then, the highest level of damages the jury could...