Bee v. Anheuser-Busch, Inc.

• Decision Date: 12 February 2009
• Docket Number: No. 20070804-CA.,20070804-CA.
• Citation: 204 P.3d 204,2009 UT App 35
• Parties: Michael BEE, Plaintiff and Appellant, v. ANHEUSER-BUSCH, INC., a Missouri corporation, Defendant, Third-party Plaintiff, and Appellee, v. Prominence, Inc., a Nevada corporation, Third-party Defendant and Appellee.
• Court: Utah Court of Appeals

204 P.3d 204

2009 UT App 35

Michael BEE, Plaintiff and Appellant, v. ANHEUSER-BUSCH, INC., a Missouri corporation, Defendant, Third-party Plaintiff, and Appellee, v. Prominence, Inc., a Nevada corporation, Third-party Defendant and Appellee.

No. 20070804-CA.

Court of Appeals of Utah.

February 12, 2009.

Matthew H. Raty and Cory B. Mattson, Sandy, for Appellant.

Peter H. Christensen and Ryan P. Atkinson, Salt Lake City, for Appellee Anheuser-Busch, Inc.

Donald L. Dalton, Salt Lake City, for Appellee Prominence, Inc.

Before GREENWOOD, P.J., THORNE, Associate P.J., and DAVIS, J.

OPINION

DAVIS, Judge:

¶ 1 Plaintiff Michael Bee appeals several decisions of the trial court in his personal injury action against Defendants Anheuser-Busch, Inc. and Prominence, Inc. (collectively, Defendants). He asserts that the trial court erred by granting Defendants separate sets of peremptory challenges, by failing to question potential jurors regarding tort reform, and by disallowing the admission of evidence regarding Anheuser-Busch's marketing and advertisements. We reverse and remand.

BACKGROUND

¶ 2 During the 2002 Winter Olympics, Bee attended the Bud World Party and there participated in a hockey puck shooting contest. Bee, who was intoxicated by the time he entered the rink, slipped and fell on the ice and sustained brain, head, and neck injuries. Bee sued Anheuser-Busch for compensation for his injuries, as well as for punitive damages. Anheuser-Busch then filed a third-party complaint against Prominence, which was the event manager hired by Anheuser-Busch to run the Bud World Party during the Olympics. Bee then amended his complaint to include Prominence in his claims.

¶ 3 Prior to jury selection, Defendants requested separate sets of peremptory challenges, which the trial court granted over Bee's objection. The trial court reasoned that there was "a substantial matter of controversy" between Defendants because Anheuser-Busch was trying to show that Prominence acted negligently and because Anheuser-Busch's third-party complaint against Prominence raised breach of contract and indemnification issues. Bee again objected to the trial court's decision regarding the additional peremptory challenges when Defendants disclosed, after the jury selection process had commenced, that they had stipulated that Prominence would pay Anheuser-Busch for any judgment against Anheuser-Busch as well as for all attorney fees and costs incurred by Anheuser-Busch in this case. The trial court refused to alter its decision, reasoning that it still believed that Defendants "very well may be" in controversy with one another.

¶ 4 During jury selection, Bee submitted four questions regarding personal injury cases and tort reform that he desired the court to ask prospective jurors. The trial court initially determined not to ask all four questions, stating, "I may reduce them down. I don't know as I'm going to go into the detail. I think more of a general flavor of some of these questions would be fine." The trial court, however, never asked any questions regarding tort reform during voir dire. Bee asserts that he again raised the issue of the tort reform questions during a sidebar held off the record at the close of voir dire but that the trial court rejected his request to question the potential jurors on the issue.

¶ 5 After the jury was empaneled, trial commenced. During trial, Bee attempted to introduce evidence regarding the marketing and advertising practices of Anheuser-Busch to argue that these were a substantial contributing factor to Bee's injuries. But the trial court precluded the introduction of such evidence, reasoning that it was irrelevant to "the accident and the negligence that [Bee] alleged."

¶ 6 At the end of the trial, the jury rendered its verdict. The jury determined that Defendants were both negligent and that their negligence contributed to Bee's injury. The jury apportioned fault as follows: 10% to Anheuser-Busch, 10% to Prominence, 5% to Bee's wife, and 75% to Bee. Bee now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Bee contests the trial court's grant of separate sets of peremptory challenges to Defendants. A trial court may grant separate sets of peremptory challenges only when it determines that a "substantial controversy" exists between the co-defendants. Utah R. Civ. P. 47(e); see also Carrier v. Pro-Tech Restoration, 944 P.2d 346, 351 (Utah 1997). "This determination is a mixed question of fact and law," Carrier, 944 P.2d at 351, and the trial court is granted "limited discretion" in its determination, id. at 353. "On the spectrum of discretion, running from `de novo' on the one hand to `broad discretion' on the other, the appropriate discretion on this issue lies close to, although probably not at, the `de novo' end." Id. (omission and internal quotations marks omitted).

¶ 8 Bee also contests the trial court's failure to question the jury regarding personal injury cases and tort reform. "We review challenges to the trial court's management of jury voir dire under an abuse of discretion standard. Generally, the trial court is afforded broad discretion in conducting voir dire, `but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors.'" Barrett v. Peterson, 868 P.2d 96, 98 (Utah Ct.App.1993) (citations omitted) (quoting State v. Hall, 797 P.2d 470, 472 (Utah Ct. App.1990)).

¶ 9 Finally, Bee argues that the trial court erroneously precluded him from presenting evidence of Anheuser-Busch's marketing and advertising practices. "The trial court is `granted broad discretion in determining the relevance of proffered evidence,' and [the appellate court] review[s] the trial court's decision for abuse of that discretion." Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 17, 979 P.2d 317 (quoting Hall v. Process Instruments & Control, 890 P.2d 1024, 1028 (Utah 1995)).

ANALYSIS

I. Peremptory Challenges

¶ 10 Bee argues that the trial court erred in granting separate sets of peremptory challenges to Defendants. The number of peremptory challenges allowed to litigating parties is governed by rule 47(e) of the Utah Rules of Civil Procedure, which states:

Each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs shall be considered as a single party for the purposes of making peremptory challenges unless there is a substantial controversy between them, in which case the court shall allow as many additional peremptory challenges as is just.

Utah R. Civ. P. 47(e). Of course, there will often be some degree of adverseness between co-defendants, but this is not always sufficient to create a substantial controversy and to thus support allowing co-defendants separate sets of peremptory challenges.¹ See Randle v. Allen, 862 P.2d 1329, 1333 (Utah 1993); see also Carrier v. Pro-Tech Restoration, 944 P.2d 346, 352 (Utah 1997) (stating that the following scenarios do not create a substantial controversy between defendants: "separate counsel, uncooperativeness, liability shifting, different defenses or claims resting on different facts or legal theories, and derivative cross-claims" (citing Randle, 862 P.2d at 1332-33)). "To avoid favoring one side of a lawsuit over another, a trial judge must carefully appraise the degree of adverseness among co-parties and determine whether that adverseness truly warrants giving that side more challenges than the other." Randle, 862 P.2d at 1333.

¶ 11 The trial court here determined that there was a substantial controversy between Defendants and allowed them each three peremptory challenges. Defendants argue that such a determination was appropriate because the third-party complaint filed by Anheuser-Busch against Prominence raised issues of indemnification, apportionment of fault, and breach of contract. Defendants contend that such claims were sufficient to create a substantial controversy between them. We disagree.

¶ 12 The degree of adverseness between Defendants did not rise to the level of a substantial controversy.

[A] `substantial controversy' exists when a party on one side of a lawsuit has a cross-claim against a co-party that constitutes, in effect, a separate, distinct lawsuit from the action existing between the plaintiffs and defendants. When, however, a cross-claim is merely a derivative of the original action, such as a cross-claim for indemnification or contribution, a `substantial controversy' does not exist for the purposes of Rule 47.

Id. Thus, the indemnification and apportionment of fault issues do not amount to a substantial controversy for purposes of granting extra peremptory challenges. Moreover, these issues were resolved prior to trial when Defendants stipulated that "[Anheuser-Busch] will have an automatic judgment against Prominence, for any damages, judgment, expenses, costs, and reasonable attorney[] fees, either awarded by the jury against [Anheuser-Busch], or incurred by [Anheuser-Busch] in defense of [Bee's] claims." And Prominence's counsel effectively conceded that these issues were resolved when he commented that "[Defendants] do not have an issue for this jury to decide" and that "[Defendants] do not have claims in this case against each other."

¶ 13 This leaves only the breach of contract claim based on Prominence's duty to maintain general liability insurance and to defend Anheuser-Busch during litigation. We do not see that this claim, which was not adjudicated in the instant case, qualifies as a separate, distinct claim under these circumstances. Even assuming that the possibility of future litigation is sufficient to create a substantial controversy, we do not see how, as Anheuser-Busch argues, a judgment that Prominence's negligence caused Bee's injuries—as opposed to a judgment that Bee was himself at fault—would improve a future Anheuser-Busch claim alleging that Prominence had breached the contract by failing to maintain insurance or to defend...