Anderson v. Werner Enterprises, Inc.

• Decision Date: 30 December 1998
• Docket Number: No. 97-684,97-684
• Citation: 292 Mont. 284,1998 MT 333,972 P.2d 806
• Parties: , 1998 MT 333 Raymond G. ANDERSON, Plaintiff and Respondent, v. WERNER ENTERPRISES, INC., a Nebraska Corporation; and Paul Anthony Freeman, Defendants and Appellants, and Georgia M. Davis, Defendant.
• Court: Montana Supreme Court

Page 806

972 P.2d 806

292 Mont. 284, 1998 MT 333

Raymond G. ANDERSON, Plaintiff and Respondent, v. WERNER ENTERPRISES, INC., a Nebraska Corporation; and Paul

Anthony Freeman, Defendants and Appellants,

and

Georgia M. Davis, Defendant.

No. 97-684.

Supreme Court of Montana.

Submitted on Briefs April 30, 1998.

Decided Dec. 30, 1998.

Gig A. Tollefsen, Berg, Lilly, Andriolo & Tollefsen, Bozeman, Montana, for Appellant

Michael R. McKinstry, Seattle, Washington; Stephen C. Pohl, Bozeman, Montana, for Respondent

Justice WILLIAM E. HUNT, J., delivered the Opinion of the Court.

¶1 Raymond G. Anderson (Anderson) brought suit against Paul Anthony Freeman(Freeman), Freeman's employer, Werner Enterprises, Inc. (Werner)(collectively Werner/Freeman), and Georgia Davis Bennett (Bennett) to recover damages he sustained as a result of a three-vehicle accident. Anderson settled his claim against Bennett and Bennett was dismissed from the action. Anderson's claim against Werner/Freeman proceeded to a jury trial in June 1997, and a jury verdict and judgment was rendered in favor of Anderson by the Eighteenth Judicial District Court, Gallatin County. Werner/Freeman appeals the jury verdict and certain pre-trial, trial, and post-trial rulings made by the District Court. We affirm.

¶2 The following issues are presented for review:

¶3 1. Did the District Court err in denying Werner/Freeman's motion for a Rule 35, M.R.Civ.P. examination of Anderson?

¶4 2. Did the District Court err in applying Plumb to the instant case and dismissing Werner/Freeman's cross-claim against Bennett?

¶5 3. Did the District Court err in granting Anderson's motion for judgment as a matter of law on the issue of Anderson's comparative negligence?

¶6 4. Did the District Court err in denying Werner/Freeman's renewed motion for judgment as a matter of law and motion for a new trial?

BACKGROUND

¶7 This accident occurred on March 17, 1993, at approximately 10:00 p.m. Anderson was driving a loaded semi-truck northbound on Highway 191, a two-lane road, a few miles north of West Yellowstone, Montana. Bennett was driving her car southbound on Highway 191. Behind Bennett was Freeman, also driving a loaded semi-truck. The particular stretch of road on which the three drivers were traveling was extremely icy.

¶8 Bennett was rounding a curve and approaching the incline of Horseshoe Hill when she lost control of her car, skidded into the snowbank on the side of the road, and began spinning. At this same time, Anderson had just reached the crest of Horseshoe Hill and was on the decline when he spotted Bennett's car spinning on the road. Anderson was approximately one half mile from Bennett when he spotted her on the road. Anderson managed to avoid a collision by driving his truck off the road into the snowbank without jackknifing or losing control. Bennett's car slid past Anderson's truck. Meanwhile, Freeman, traveling approximately 700 feet behind Bennett, rounded the curve and saw Bennett's car spinning in the road and Anderson's oncoming truck. He applied his brakes but could not stop in time to avoid a collision. Freeman's truck jackknifed and began spinning. On the third revolution, the rear end of Freeman's trailer collided with the front end of Anderson's truck. Before the impact, Anderson's truck was still slowly moving, but the impact immediately stopped Anderson's truck "in its tracks." Bennett's car came to rest at a point 170 feet from where Freeman's and Anderson's trucks collided.

¶9 As a result of the accident, Anderson suffered a fractured, dislocated hip. On July 28, 1995, Anderson filed suit against Freeman and Freeman's employer, Werner, because Freeman was in the course of employment at the time of the accident. In the same complaint, Anderson named Bennett as a co-defendant. Anderson alleged that Werner/Freeman and Bennett were negligent in causing the accident, and sought damages for medical expenses, pain and suffering, loss of earning capacity, and loss of established course of life. Werner/Freeman and Bennett filed cross-claims against each other for contribution and indemnity. On May 9, 1997, Anderson settled his claim against Bennett. On May 27, 1997, the District Court dismissed Anderson's claim against Bennett and, over the objection of Werner/Freeman, dismissed Bennett's and Werner/Freeman's cross-claims against each other. Anderson's claim against Werner/Freeman proceeded to trial which was held June 2 through June 6, 1997.

¶10 At trial, Werner/Freeman admitted that Freeman was negligent for driving too fast for the conditions. However, Werner/Freeman alleged that Anderson was comparatively negligent for also driving too fast for the conditions and for failing to slow or stop when he had time to do so. At the conclusion of the presentation of evidence, Anderson moved for judgment as a matter of law on the issue of liability, leaving for the jury only the issue of damages. The District Court granted the motion, concluding that there existed no legally sufficient evidentiary basis for a reasonable jury to have found that Anderson was comparatively negligent.

¶11 At the conclusion of the trial, the jury awarded Anderson $690,800 in damages from which the court subtracted $25,000, the amount of Bennett's settlement. Werner/Freeman renewed its motion for judgment as a matter of law and moved for a new trial. The court denied the motions. More facts will be provided as necessary to dispose of the issues presented.

Issue 1

¶12 Did the District Court err in denying Werner/Freeman's motion for a Rule 35, M.R.Civ.P. examination of Anderson?

¶13 The District Court has inherent discretionary power to control discovery based on its authority to control trial administration. State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 67-68, 634 P.2d 648, 650. "Control over pretrial discovery is best exercised by the District Court which is in a better position than this Court to supervise the day to day operations of pretrial discovery." State ex rel. Guar. Ins., 194 Mont. at 68, 634 P.2d at 650. We review discretionary trial court rulings for abuse of discretion. Eagle Ridge Ranch Ltd. Partnership v. Park County (1997), 283 Mont. 62, 65, 938 P.2d 1342, 1344. Furthermore, the party assigning error to the trial court's discovery rulings must show prejudice. In interpreting discovery rules, this Court will reverse the trial judge only when his or her judgment may materially affect the substantial rights of the complaining party and allow the possibility of a miscarriage of justice. Granite County v. Komberec (1990), 245 Mont. 252, 261, 800 P.2d 166, 171, overruled on other grounds by Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 214-15, 879 P.2d 715, 722.

¶14 In November 1995, Werner/Freeman sent interrogatories to Anderson asking him whether he was claiming lost earnings and, if so, in what amount. The interrogatories also asked how lost earnings would be calculated, who would testify as to the lost earnings, and with whom Anderson had been employed since the date of the accident. Anderson answered the interrogatories, stating that he was seeking lost earnings in the amount of$87,170, as of October 20, 1995, and that economist Joseph Kasperick would testify as to his lost earnings. Anderson attached Mr. Kasperick's worksheet calculations, and listed Mike Bartholomew, his friend and owner of a logging business, as an employer. In April 1996, Werner/Freeman deposed Anderson and asked him several questions concerning his lost earning capacity and future employability. Anderson stated that he was working for Mike Bartholomew driving logging trucks. When asked whether he expected this employment to continue in the foreseeable future, Anderson replied, "I think that's a good possibility, yeah, I don't know why it wouldn't be."

¶15 Approximately two weeks after Anderson's deposition, his employment with Mike Bartholomew terminated. According to the testimony of Anderson and Mr. Bartholomew, Anderson was terminated because he was no longer healthy enough to do the tasks required of him. Werner/Freeman did not learn of Anderson's termination from employment until January 22, 1997, approximately nine months after Anderson's deposition, and well after the close of discovery. Werner/Freeman learned of Anderson's change in employment status when Anderson supplemented his discovery responses by submitting a new economic report indicating that he had been unemployed for a substantial portion of 1996.

¶16 Upon learning of Anderson's change in employment status, Werner/Freeman moved the court to reopen discovery to allow a Rule 35, M.R.Civ.P. examination (hereinafter Rule 35 examination) of Anderson to ascertain whether Anderson could continue being a logging truck driver and, if not, to ascertain what other employment would be available to Anderson. A hearing was held on the discovery motion at which time Werner/Freeman clarified that it wanted a Rule 35 examination conducted by a vocational rehabilitation expert.

¶17 Anderson opposed the motion on two grounds. First, Anderson refuted allegations that he violated Rule 26(e)(2), M.R.Civ.P., by failing to supplement his prior discovery responses. Anderson claimed that Werner/Freeman's interrogatory asked only for the names of any employers for whom Anderson had worked since the date of the accident, not whether or not Anderson was employed. Upon this distinction, Anderson argued he had no duty to notify Werner/Freeman of his change in employment status.

¶18 Second, Anderson argued that Werner/Freeman's motion was not warranted because Werner/Freeman was on notice that Anderson was claiming an inability to continue working as a truck driver since the commencement of the lawsuit and had ample opportunity to have Anderson examined by an independent vocational expert. Anderson argued that Werner/Freeman made a tactical decision to forego securing a vocational expert, and should not now...