Asal v. Mina
| Decision Date | 18 March 2021 |
| Docket Number | 19-CV-642,Nos. 18-CV-534,& 19-CV-643,s. 18-CV-534 |
| Citation | 247 A.3d 260 |
| Parties | Ehab Anwar ASAL et al., Appellants, v. Fayez F. MINA, as Administrator and Legal Representative of the Estate of George Fayez Mina, Appellee. |
| Court | D.C. Court of Appeals |
Patricia Lambert, Towson, MD, with whom Brian Cathel and Emily Devan, Towson, MD, were on the brief, for appellants Ehab Asal and Hala Asal.
Laura Basem Jacobs, Bethesda, MD, for appellant Nationwide Property & Casualty Insurance Co.
Peter Scherr, Rockville, MD, with whom Scott Futrovsky was on the brief, for appellee.
Before Blackburne-Rigsby, Chief Judge, Thompson, Associate Judge, and Ruiz, Senior Judge.
Opinion by Associate Judge Thompson, dissenting in part, at page 284.
In this appeal, we address the rights and respective duties of drivers and pedestrians when crossing at unsignalized crosswalks. It arises from a jury verdict finding Ehab and Hala Asal liable for the death of George F. Mina after he was struck by the Asals’ vehicle. The Asals appeal the trial court's directed verdict on the issues of negligence and contributory negligence in favor of Mr. Mina's estate, as well as its decision to leave undisturbed the jury's $275,000 non-economic damages award on the survival action. Nationwide Property & Casualty Insurance Co. ("Nationwide"), the Asals’ auto insurer, appeals the trial court's ruling that Mr. Mina's estate is entitled to garnish the benefits of the Asals’ insurance policy. Finding no error, we affirm.
In June 2015, driver Ehab Asal struck and killed pedestrian George F. Mina. Mr. Mina's father, Fayez Mina, acting as the personal representative of Mr. Mina's estate (the "Estate"), filed a complaint against Mr. Asal and his wife, Hala Asal, alleging, in relevant part, claims under the District of Columbia's Survival Act, D.C. Code § 12-101 (2012 Repl.), and Wrongful Death Act, D.C. Code § 16-2701 (2012 Repl.).1 A one-day jury trial was held on November 15, 2017, which established largely undisputed facts, as the collision was caught on video camera.
The following facts are derived from the trial testimony, which was corroborated by the surveillance footage viewed by the trial court and the jury. On June 10, 2015, at approximately 5:06 p.m., Mr. Mina waited in the bus lane inside the crosswalk on the southeast corner of Wisconsin Avenue and Veazey Street NW to cross Wisconsin Avenue. Wisconsin Avenue is a busy, six-lane roadway with three northbound and three southbound lanes of traffic. At Veazey Street, an unsignalized crosswalk divides Wisconsin Avenue, with several pedestrian crossing signs facing drivers in both directions – including a sign in the middle of Wisconsin Avenue; the intersection does not have a stop sign. Emma Rigney, who was driving a red SUV northbound in the middle lane on Wisconsin Avenue, testified that she stopped just before the crosswalk to let Mr. Mina cross. The two made eye contact, Mr. Mina smiled and waved, and he proceeded to cross. While walking past Ms. Rigney's stopped car, Mr. Mina turned his head and attention away from the oncoming northbound lanes (the direction of Ms. Rigney's car) and toward the opposite, southbound lanes to observe oncoming traffic. He then turned his attention back, to observe the innermost northbound lane.
At that time, Mr. Asal's vehicle, which was proceeding in that lane, collided with Mr. Mina. Mr. Mina's body hit the side of Mr. Asal's car, his head hit the windshield, and he was thrown five to six feet onto the pavement, where he lost consciousness.
Mr. Asal testified that he knew the area well because he passed through it every day driving to his job at a restaurant located approximately four blocks from the intersection. He was also aware of the crosswalk at that location and that it was marked by several pedestrian warning signs facing his direction. Approaching Veazey Street at the time of the collision, Mr. Asal was driving northbound in the left, innermost northbound lane of Wisconsin Avenue at approximately twenty to thirty miles per hour. Mr. Asal observed Ms. Rigney's car (in the middle northbound lane) slow down as it approached the crosswalk, but testified that he did not see her car stop.2 The car immediately in front of Mr. Asal in his lane and an oncoming southbound car both drove through the intersection without stopping. Mr. Asal testified that he did not see a pedestrian in the crosswalk, and he did not slow down or stop at the crosswalk. Mr. Asal testified that he did not see Mr. Mina until the collision, when Mr. Mina struck his windshield.
Dr. John Davitt, a medical resident at Washington Hospital Center, testified that he was sitting at a restaurant adjacent to the crosswalk when he heard the collision and saw Mr. Mina being tossed from Mr. Asal's car onto the pavement. Dr. Davitt immediately went to the crosswalk, where he found Mr. Mina bleeding, unconscious, and unarousable, though breathing and with a pulse. Dr. Davitt stabilized Mr. Mina's head and neck while waiting for an ambulance to arrive.
An ambulance transported Mr. Mina to the George Washington University Hospital emergency room. Dr. Babak Sarani, Mr. Mina's treating physician and the Estate's expert witness, testified that Mr. Mina was "radioed [in] as being unconscious" and confirmed that he was "in a very deep state of coma" upon his arrival at the emergency room. Dr. Sarani rated Mr. Mina a three on the Glasgow coma scale, the lowest score, indicative of "a deeply comatose person."3 Dr. Sarani testified regarding the extent of Mr. Mina's injuries and the medical procedures and therapies he underwent following his arrival at the hospital.4 Mr. Mina died on June 16, 2015, six days after the collision. Dr. Sarani testified that Mr. Mina was unconscious from the moment he arrived at the hospital until he died.
At the close of evidence, the trial court granted the Estate's motion for a directed verdict on the issues of Mr. Asal's negligence and Mr. Mina's contributory negligence. As to negligence, the trial court ruled that Mr. Asal – knowing there was a pedestrian warning sign and seeing Ms. Rigney's car slow down (if not stop) – had a duty to stop and did not. As to contributory negligence, the trial court ruled that, once Ms. Rigney's vehicle stopped to allow Mr. Mina to cross, Mr. Mina did not have a continuing obligation to expect wrongful conduct by other vehicles, i.e., that they would drive through the intersection while he was using the crosswalk. Thus, the only issue remaining for the jury was non-economic compensatory damages, e.g., for pain and suffering. The jury awarded the Estate a total of $801,779.30 in damages, including an award of $275,000 in non-economic damages in the survival action. The trial court entered judgment that same day, November 15, 2017.
Following the entry of judgment, the Asals, on December 12, 2017, moved for a new trial, arguing that the trial court erred in not submitting the issue of contributory negligence to the jury, or, in the alternative, for remittitur of the non-economic damages award because the $275,000 award was not supported by the evidence. The Asals also filed a motion to stay the execution of judgment pending a decision on the motion for a new trial. The Estate opposed and responded with a cross-motion, requesting as a condition for a stay that the Asals post adequate security through a bond, pursuant to Super. Ct. Civ. R. 62. On May 3, 2018, the trial court entered separate orders that, in relevant part, (1) denied the Asals’ motion for a new trial, and (2) granted the Estate's cross-motion, requiring that the Asals post a $808,226.00 bond as adequate security for a stay by June 4, 2018.5 The Asals timely appealed those orders.6
The Asals maintained a Personal Auto Policy with Nationwide (the "Policy"). Nationwide delivered the Policy to the Asals in Virginia for a vehicle they owned in Virginia. The relevant parts of that Policy provided as follows. Pursuant to Part B ("Liability Coverage"), Nationwide agreed to "pay damages for bodily injury ... for which any insured becomes legally responsible because of an auto accident" up to an applicable limit of $200,000, all defense costs incurred in settling or defending any claim or suit, and "[p]remiums on appeal bonds and bonds to release attachments in any suit" that Nationwide defends. Pursuant to Part E ("Duties After an Accident or Loss"), Nationwide may deny Liability Coverage under Part B "if failure to comply with the following duties is prejudicial to us," including the duty to "[c]ooperate with [Nationwide] in the investigation, settlement, or defense of any claim or suit." Part F provided:
Pursuant to the Policy, Nationwide paid all of the Asals’ defense and appeal costs in this matter.
On June 7, 2018, the Asals filed a motion to clarify the trial court's order of May 3, 2018, which required them to post a $808,226.00 bond by June 4, 2018. In their motion, the Asals asserted that Nationwide "indicated that it will not provide collateral for a bond in an amount over $200,000, which is the limit of the applicable insurance policy." Without providing any justification, the trial court declined to clarify its prior order.
Neither the Asals nor Nationwide posted the required bond...
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