Bergeson v. Dilworth

• Decision Date: 29 November 1993
• Citation: 1992 WL 64887,959 F.2d 245
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 245

959 F.2d 245

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Eldon L. BERGESON, individually and as administrator of the estate of Sheryl L. Bergeson, deceased, Plaintiff-Appellee, v. Edward K. DILWORTH and Nathan O. Dilworth, Defendants-Appellants.

No. 90-3170.

United States Court of Appeals, Tenth Circuit.

March 30, 1992.

Before HOLLOWAY, BALDOCK and SETH, Circuit Judges.

BALDOCK, Circuit Judge.

Defendants-appellants, Edward K. Dilworth ("Edward") and Nathan O. Dilworth ("Nathan"), appeal from a judgment entered against them in a diversity action for the wrongful death of Sheryl L. Bergeson ("Sheryl") resulting from an automobile collision. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Defendants worked together as general contractors under the name Ed Dilworth Construction ("EDC"). In September 1986, EDC had two contracts with the Army Corps of Engineers for construction work near Marion Lake and Cherryvale, Kansas. Both contracts listed Edward and Nathan as co-owners of EDC.

On the evening of September 4, 1986, Defendants jointly decided to move their construction equipment from the Marion Lake job to the Cherryvale job. Defendants loaded a backhoe weighing over five tons on a homemade, twenty-foot trailer attached to three-quarter ton Ford pickup. ¹ The hitch ball on the pickup was loose due to earlier wear. Additionally, the brake shoes on the wheels attached to two of the three trailer axles had been removed rendering the trailer brakes inoperative. Both Defendants were aware of the condition of the hitch and trailer brakes yet proceeded to use the trailer and pickup to haul the backhoe.

At approximately 9:30 p.m., Defendants left Marion and proceeded on U.S. Highway 77. ² Edward drove a Freightliner tractor pulling a 28-30 foot end-dump rock trailer. Nathan followed, approximately fifty feet behind, in the pickup pulling the trailer and backhoe. Edward maintained visual contact in his rear-view mirror with the pickup truck. A driver who passed the caravan prior to the collision testified that the trailer attached to the pickup driven by Nathan was weaving over the center line. As the pickup came over a hill, the ball on the trailer hitch broke leaving the trailer attached solely by the safety chains and causing the trailer to swerve across the center line. Unfortunately, Sheryl was driving in opposite direction, and she collided with the trailer as she came over the top of the hill. She died shortly thereafter as a result of injuries sustained in the collision.

Plaintiff-appellee, Eldon L. Bergeson, brought this action seeking compensatory and punitive damages. Shortly before trial, Nathan admitted liability but disputed the amount of compensatory damages and the appropriateness of punitive damages. Edward denied liability as well as disputing the damages.

At trial, the district court permitted two letters written by Edward to be read into the record over Defendants' objection. The first, dated September 25, 1987, from Edward to Plaintiff's counsel, indicated that Sheryl was at fault in the collision. Specifically, Edward stated in the letter that Sheryl came at Edward (who was driving the Freightliner), that he witnessed the collision in the rear view mirror, and that "Sheryl ... was either asleep or putting cassette tapes in to play, or was trying to commit suicide." Edward also admitted ownership of the pickup truck, and stated that he would hold Sheryl and Plaintiff's counsel liable for the damage to the pickup. The second letter, dated April 22, 1988, was from Edward to Robert Laughridge, a motorist who collided with the pickup truck driven by Nathan shortly after the collision with Sheryl's car. This letter stated that the first group of police officers who investigated the collision were intoxicated, apparently attempting to discredit the police report prepared by these officers which exonerated Laughridge of fault for the subsequent collision. The letter also indicated that Edward and Nathan believed that Laughridge was drunk. The letter requested payment for damages to the pickup. The district court instructed the jury that the letters could be considered on the issue of Edward's credibility, and could be considered in determining the state of mind or knowledge of Defendants at the time of and prior to the collision. I R. doc. 66 (instruction no. 19).

The jury was instructed on seven theories of negligence based on Defendants' conduct. ³ I R. doc. 66 (instruction no. 2). The district court also instructed the jury that Plaintiff had claimed punitive damages against Defendants because of gross and wanton negligence in doing at least one of the seven acts. Id. Two theories of vicarious liability were also submitted to the jury. First, the court instructed on a "business enterprise joint venture" theory which provides that the actions of one party in the enterprise are considered the actions of the other. ⁴ Id. (instruction no. 16). Second, the court instructed on a partnership theory which provides that each partner is liable for the acts of another partner. ⁵ Id. (instruction no. 17). The court instructed the jury that it had to find either a partnership or a business enterprise in order to "find[ ] liability for actual and/or punitive damages as to the named defendants in this case...." Id. (instruction no. 18). The jury was also given a specific instruction on punitive damages. ⁶ See id. (instruction no. 25). Additionally, the jury was instructed that it was not required "to assess damages against each defendant individually." ⁷ Id. (instruction no. 26).

The jury returned a special verdict holding both Defendants liable for compensatory and punitive damages. The special verdict specifically found that Edward and Nathan "were members of a business enterprise on the date of the accident," and that Nathan's acts "were in furtherance of the business enterprise." I R. doc. 68. The special verdict also specifically found that "the defendants acted in a wanton manner on the date of the accident," and that "punitive damages should be assessed against the defendants." Id. Plaintiff was awarded $256,795 in compensatory damages ⁸ and $500,000 in punitive damages. In a published opinion, the district court denied Defendants' motion for a remittitur of the punitive damages. See Bergeson v. Dilworth, 738 F.Supp. 1361 (D.Kan.1990).

On appeal, Defendants contend that the district court erred in admitting the letters written by Edward which Defendants claim were irrelevant and so prejudicial that a new trial on compensatory and punitive damages is required. Additionally, Edward contends that the district court erred by instructing the jury on a theory of vicarious liability for punitive damages, and that he was entitled to a directed verdict on the issue of punitive damages.

I.

We review the district court's ruling on the admissibility of the evidence for an abuse of discretion. K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir.1985); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862 (1978). ⁹ "The admissibility of evidence in diversity cases in federal court is generally governed by federal law." Romine v. Parman, 831 F.2d 944, 944 (10th Cir.1987) (citations omitted). "[T]he Federal Rules of Evidence should be applied in a diversity case in federal court to determine whether evidence is relevant or prejudicial." Id. at 945. Under the Federal Rules of Evidence, all evidence which has any tendency to make a material fact more or less probable is considered relevant and is admissible "except as otherwise provided by the Constitution of the United States, by Act of Congress, by the[ ] [Federal] [R]ules [of Evidence], or by other rules prescribed by the Supreme Court pursuant to statutory authority." Fed.R.Evid. 401, 402. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Id. 403.

Defendants contend that the letters were not relevant to their state of mind at the time of and prior to the collision because Edward wrote them over a year later. Defendants rely on O'Gilvie v. International Playtex, Inc., 821 F.2d 1438 (10th Cir.1987), cert. denied, 486 U.S. 1032 (1988), for the proposition that a defendant's subsequent conduct is irrelevant to the issue of punitive damages. ¹⁰ O'Gilvie is distinguishable on several grounds. First, at issue in O'Gilvie was the propriety of a remittitur, not the admissibility of evidence. Second, the subsequent conduct there occurred post-trial whereas the subsequent conduct here occurred after the incident giving rise to liability but before trial. Moreover, the specific language in O'Gilvie on which Defendants rely expressly states that our determination as to lack of relevance was particular to that case. In short, O'Gilvie simply does not stand for the broad proposition that Defendants would like. ¹¹

The district court indicated that Edward's accusations in the April 22 letter that the investigating officers and Laughridge were intoxicated, and his attempt to place fault with Sheryl by stating that she was "asleep, or putting cassette tapes in to play, or was trying to commit suicide" in the September 25 letter could lead the jury to properly infer that he was attempting to conceal his knowledge of the danger existing at the time of the accident. Bergeson, 738 F.Supp. at 1364 (citations omitted). Evidence of other acts may be admissible to show knowledge. Fed.R.Evid. 404(b). The fact that...