Berra v. Danter

• Decision Date: 27 October 2009
• Docket Number: No. ED 92279.,ED 92279.
• Citation: 299 S.W.3d 690
• Parties: James BERRA, Plaintiff/Respondent, v. Charles E. DANTER, Defendant/Appellant.
• Court: Missouri Court of Appeals

299 S.W.3d 690

James BERRA, Plaintiff/Respondent, v. Charles E. DANTER, Defendant/Appellant.

No. ED 92279.

Missouri Court of Appeals, Eastern District, Division One.

October 27, 2009.

Application for Transfer to Supreme Court Denied December 7, 2009.

Application for Transfer Denied January 26, 2010.

Paul Hasty, Jr., Schmitt Manz Swanson & Mulhern, P.C., Overland Park, KS, Kathryn M. O'Shea, Kansas City, MO, for appellant.

Jess W. Ullom, Doster, Ullom LLC, Chesterfield, MO, David N. Damick, St. Louis, MO, for respondent.

Leland F. Dempsey, Dempsey & Kingsland, P.C., Kansas City, MO, for Amicus Curiae.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff filed a lawsuit against defendant to recover damages for injuries sustained and medical expenses incurred as a result of being struck by a vehicle driven by defendant as plaintiff was crossing a street. The jury returned a verdict assessing eighty-five percent fault to defendant and fifteen percent fault to plaintiff. It found the total amount of plaintiff's damages, disregarding plaintiff's fault, to be $300,000. The trial court reduced the damages by the percentage of fault assessed against plaintiff and entered judgment in plaintiff's favor in the amount of $255,000.

On appeal, defendant challenges (1) plaintiff's introduction of defense counsel as an insurance company employee; (2) the trial court's pre-trial order, entered after both parties submitted motions to determine the value of medical services pursuant to section 490.715.5 RSMo (Cum. Supp.2008),¹ finding that the amount of medical expenses reflected in plaintiff's billing statements was the reasonable value of medical services; (3) the sufficiency of the evidence of negligence; (4) a voir dire question on whether the panel could make a substantial award of damages; and (5) the submission of plaintiff's non-MAI jury instruction on a driver's duty of care. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We view the facts in the light most favorable to the verdict. In April 2001, at approximately 9:00 p.m., defendant left Spiro's restaurant on Watson Road and was driving southbound on Watson Road with his vehicle's headlights turned on. Watson Road generally runs north-south and has two traffic lanes running in each direction with an additional parking lane on either side of the street. Defendant was driving at or below the 30 mile per hour (m.p.h.) speed limit, and could have been driving at a speed of 25 m.p.h. He was driving in the left southbound traffic lane because he anticipated making a left turn. There was little or no other traffic. The sky was clear that evening, and the street was dry.

In the meantime, plaintiff had parked his vehicle in the southbound parking lane on the west side of Watson Road in the middle of the block between Arthur and Fyler Streets which was down the street from Spiro's. He began to walk directly across Watson Road towards Hatfield's on the east side of Watson. The area where plaintiff was walking was well-illuminated by mercury vapor streetlights. Plaintiff looked for traffic before he started to cross the road and continued to look in all directions for any traffic while crossing. There were no obstructions to vision. Plaintiff began crossing the street at a normal walking pace, crossed the first southbound lane of traffic, and was struck by defendant's vehicle as he had almost finished crossing the second southbound lane. Upon being struck, plaintiff was thrown up and onto the windshield of defendant's vehicle, directly in front of defendant. Defendant did not see plaintiff until plaintiff's face struck the windshield. At that moment, defendant applied his brakes and stopped within a few feet.

Plaintiff thereafter filed the underlying lawsuit against defendant. At the beginning of trial, the trial court took judicial notice that a driver has a reaction time of 3/4 of a second, and that a car traveling 1 m.p.h. travels 1.5 feet per second. The case was submitted to the jury on the alternative submissions of failure to keep a proper look out and failure to act after the danger of a collision became apparent. Plaintiff's comparative fault was also submitted.

DISCUSSION

I. Insurance Question

For his first point, defendant claims that the trial court erred in permitting plaintiff to introduce defense counsel as an employee of Safeco Insurance Company during voir dire. He maintains that this action unduly highlighted the existence of insurance.

Before trial, defendant filed a motion in limine that sought to prevent plaintiff from asking the venire panel whether any of the panel members had any connection to the insurance company representing defendant in this case. The court denied the motion in limine. The trial court allowed plaintiff's attorney to ask: "Ms. Schubert is in house counsel for Safeco Insurance— Is any one here or a family member an employee of or have a financial interest in or provide services for that company?" During the course of voir dire, plaintiff's attorney asked, "Miss Schubert is in-house counsel for Safeco Insurance. Is anyone here or one of your family members an employee of or have a financial interest in or provides services for that company?" Defendant did not object to this question when it was asked.

A motion in limine standing alone is insufficient to preserve error for appellate review; a party must object at the time of the alleged error to preserve the issue for appellate review. Roberson v. Weston, 255 S.W.3d 15, 18 (Mo.App.2008). Because defendant did not object to the voir dire question when it was asked, defendant failed to preserve this point for appeal. Id. There is no basis for plain error review. See Richter v. Kirkwood, 111 S.W.3d 504, 507-09 (Mo.App.2003). Point one is denied.

II. Section 490.715.5

Defendant's second point is directed to the trial court's pre-trial order entered pursuant to section 490.715.5, finding that the amount of medical bills reflected in plaintiff's billing statements to be the reasonable value of plaintiff's medical services. Defendant asserts that plaintiff failed to rebut the presumption contained in section 490.715.5 that the dollar amount necessary to satisfy the financial obligation to a health care provider represents the value of the medical treatment rendered. He contends that section 490.715.5 required the trial court to limit its determination of the value of plaintiff's medical treatment to the amount plaintiff actually paid for medical treatment. Although defendant characterizes this error as an abuse of discretion, his argument clarifies that he is really challenging the trial court's interpretation of section 490.715.5, and thus is challenging the trial court's application of law.

Section 490.715.5 provides:

5. (1) Parties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party.

(2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. Upon motion of any party, the court may determine, outside the hearing of the jury, the value of the medical treatment rendered based upon additional evidence, including but not limited to:

(a) The medical bills incurred by a party;

(b) The amount actually paid for medical treatment rendered to a party;

(c) The amount or estimate of the amount of medical bills not paid which such party is obligated to pay to any entity in the event of a recovery.

Notwithstanding the foregoing, no evidence of collateral sources shall be made known to the jury in presenting the evidence of the value of the medical treatment rendered.

In addition, section 490.525.2 RSMo (2000) provides:

Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

Before trial, plaintiff and defendant each filed a motion to determine the value of medical treatment pursuant to section 490.715.5(2). Plaintiff attached to his motion copies of his medical bills in the total amount of $90,062.52; health care provider affidavits attesting to the reasonableness of these charges; and a Medicare medical payment summary. The summary showed that plaintiff was billed $118,015.61, but had paid $28,734.37. Plaintiff requested the trial court to find that either the amount of bills reflected in the billing statements, $90,062.52, or the amount reflected in the Medicare summary, $118,015.61, constituted the reasonable value of plaintiff's medical treatment. The trial court found that the amounts reflected in the billing statements were the reasonable value of the medical services and allowed that amount, $90,062.52, to be presented to the jury.

Defendant asserts that plaintiff did not rebut the presumption in section 490.715.5(2), and that the trial court should have allowed in evidence only the amount that plaintiff actually paid to satisfy his medical bills. Defendant acknowledges that section 490.715.5(2)(a) allows the trial court to consider the medical bills "incurred" by a party in determining the value of the medical services rendered, but he argues that the phrase "medical bills incurred" refers to only those amounts actually paid for the services rendered, not the amounts billed.

The interpretation of a statute is a question of law that we review de novo. Nelson v. Crane, 187 S.W.3d 868, 869 (Mo. banc 2006). "The primary rule in statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if...