Bierman v. Aramark Refreshment Services
| Decision Date | 01 April 2008 |
| Docket Number | No. 104,421.,No. 104,434.,104,421.,104,434. |
| Citation | 198 P.3d 877,2008 OK 29 |
| Parties | Donald J. BIERMAN, Plaintiff/Appellee, v. ARAMARK REFRESHMENT SERVICES, INC., Defendant/Appellant. |
| Court | Oklahoma Supreme Court |
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY; Barbara G. Swinton, Trial Judge.
¶ 0 On May 13, 1998, a delivery van owned by Aramark Refreshment Services, Inc. (employer) and driven by its employee, Laura E. Konelick (employee) struck Donald Bierman's (injured party) vehicle, injuring him. The injured party brought suit against the employer and the employee. District Judge Daniel L. Owens entered default judgment against the employee and awarded the injured party $650,000 in compensatory and $650,000 in punitive damages. At the first trial, the jury found the employer was not liable under the doctrine of respondeat superior. On appeal, the Court of Civil Appeals reversed the judgment on liability and remanded the matter for a hearing on damages. We denied certiorari, and the cause was remanded. At the second trial, before District Judge Barbara G. Swinton, the jury awarded the injured party $81,100 in compensatory damages from the employer. Both parties appealed, and we retained the cause. We hold that: 1) the Court of Civil Appeals' finding that the employer is liable through respondeat superior is the law of the case; 2) the trial court abused its discretion by striking the injured party's claim for punitive damages; and 3) the trial court did not err by refusing to include jury instructions on mortality tables and aggravation of a pre-existing condition at the second trial.
TRIAL COURT AFFIRMED IN PART; REVERSED IN PART. CAUSE REMANDED FOR A NEW TRIAL SOLELY ON THE ISSUE OF PUNITIVE DAMAGES.
Matthew B. Free, Angela L. Smoot, Oklahoma City, Oklahoma, for Appellant.
R. Stephen Haynes, Oklahoma City, Oklahoma, for Appellees.
¶ 1 The issues presented are: 1) whether the employer is liable for the accident under the doctrine of respondeat superior; 2) whether the trial court erred by striking the injured party's claim for punitive damages; and 3) whether the trial court erred by failing to instruct the jury on life expectancy and prior existing condition. We find that: 1) the Court of Civil Appeals' finding that the employer is liable under the doctrine of respondeat superior is the law of the case; 2) the trial court abused its discretion by striking the claim for punitive damages; and 3) the trial court did not err by refusing the inclusion of jury instructions on mortality tables and aggravation of a pre-existing condition.
¶ 2 On May 13, 1998, the injured party, the appellee, was driving northbound on the access road on the east side of the Broadway Extension in north Oklahoma City. A delivery van owned by the employer, the appellant, and driven by the employee, struck the injured party's vehicle. The van was traveling south on the Broadway Extension and had crossed the northbound lanes of the highway and the southbound lanes of the east access road before colliding head-on with the injured party's vehicle. At the hospital, over two hours after the accident, the employee's blood alcohol content measured 0.122 gm/dl, a level above the legal limit.1 An inventory of the van conducted by the employer after the accident uncovered an open container of peach schnapps.
¶ 3 On February 24, 1999, the injured party filed suit in Oklahoma County District Court against the employee. He alleged that her negligence was the cause of severe and permanent injuries to his person.2 He also named the employer as a defendant under the theory of respondeat superior,3 alleging that the employee was employed by the employer and the accident occurred while the employee was performing her duties for the employer. He also alleged that the employer was liable because it failed to properly investigate the hiring of the employee and knew or should have known that she was not adequately trained for the position because she had a prior history of driving under the influence of alcohol. The injured party sought both actual and punitive damages.
¶ 4 The employee could not be located for personal service and was served by publication. On October 15, 1999, the injured party moved for a default judgment against the employee because she had not filed an answer. On October 25, 1999, the employer's counsel filed an answer on the employee's behalf. On October 28, 1999, the injured party and the employer filed a joint motion for withdrawal of the injured party's motion for default judgment, which was granted by the trial court. On August 15, 2000, the employer's counsel withdrew from representation of the employee because she had still not been located by either party. On May 9, 2002, the injured party renewed his motion for a default judgment against the employee. On June 17, 2002, because he had located the employee, the injured party again withdrew his motion for default judgment against her, and served her with actual notice to appear at trial.
¶ 5 The first trial was held September 9-11, 2002. Prior to trial, the employer stipulated that the employee was intoxicated at the time of the accident and that her intoxication was the cause of the accident. The employee did not appear, and the trial court granted a default judgment against her.4 At the conclusion of the trial, the jury entered a finding that the employee was not acting within the scope of employment at the time she became intoxicated and caused the accident with the injured party. On September 24, 2002, the trial court entered the journal entry of judgment. On October 4, 2002, the injured party moved for a judgment notwithstanding the verdict and a new trial. Both motions were denied by journal entry on November 8, 2002. On December 6, 2002, the injured party filed his petition in error.
¶ 6 On January 9, 2003, the trial court held a hearing for assessment of damages against the employee. The employee did not appear at the hearing. The employer's counsel did appear, but did not participate in the proceedings. On February 7, 2003, the trial court filed a journal entry of judgment assessing damages against the employee in the amount of $650,000 in compensatory damages and $650,000 in punitive damages.5
¶ 7 On September 18, 2003, the cause was assigned to the Court of Civil Appeals.6 On February 17, 2004, the Court of Civil Appeals, in an unpublished opinion, reversed the decision of the trial court, finding that no evidence presented at trial indicated that the employee had deviated from her delivery route or was using the van for her own purposes. Therefore, the only reasonable conclusion that could be drawn was that she was acting within the scope of employment at the time of the collision and that the employer was liable, as a matter of law, through the doctrine of respondeat superior. The Court of Civil Appeals remanded the cause for a new trial on damages. On March 9, 2004, the employer filed its petition for certiorari, and it was denied on April 19, 2004. Mandate was issued on April 30, 2004.
¶ 8 On October 6, 2004, the cause was transferred to the trial court for a new trial on damages. After several motions in limine filed by both parties, on November 10, 2005, the trial court entered an order striking the injured party's claim for punitive damages against the employer, and then certified a petition for certiorari of the interlocutory order.7 On March 28, 2006, we denied the petition for certiorari.
¶ 9 The second trial was held on December 11-12, 2005. On December 12, 2005, the jury awarded the injured party $6,100 in property damages and $75,000 in personal injury damages. On February 16, 2007, the trial court filed its journal entry of judgment. On March 16, 2007, the employer filed its petition in error, and on March 19, 2007, the injured party filed his petition in error. The parties then filed countermotions to retain. On April 6, 2007, the appeals were consolidated.8 On May 30, 2007, we granted the employer's motion to retain. The briefing cycle was completed on January 28, 2008.
THE COURT OF CIVIL APPEALS' FINDING THAT THE EMPLOYER IS LIABLE AS A MATTER OF LAW FOR THE ACCIDENT THROUGH THE DOCTRINE OF RESPONDEAT SUPERIOR IS THE LAW OF THE CASE.
¶ 10 The employer argues that the Court of Civil Appeals' determination in the first appeal that it was liable under the doctrine of respondeat superior was erroneous. The injured party responds that the Court of Civil Appeals' finding is the law of the case and does not meet any of the exceptions to that doctrine.
¶ 11 Determinations made on a prior appeal of a cause are res judicata,9 and the decision of the appellate court on an issue of law becomes the law of the case once the decision is final and unreversed, in all subsequent stages.10 It is immaterial whether the final decision is made by the Court of Civil Appeals or this Court. When an issue has been presented to the Court of Civil Appeals, and a decision is reached on that issue, the first determination becomes conclusive and cannot be re-examined once it is final. The sole remedy available from an erroneous decision of that Court is the writ of certiorari.11
¶ 12 No question of law expressly decided or impliedly determined on a former appeal can be reversed on a second appeal between the same parties in regard to the same subject matter.12 This doctrine is a rule of judicial economy designed to prevent an appellate court from twice having to decide the same issue.13 Whether the issue was wrongfully or rightfully decided is not to be determined. Once settled on appeal, the appellate court will not review the issue on the second appeal.14
¶ 13 The exception to the doctrine of law of the case is that the doctrine is not applied if the prior decision is palpably erroneous and this Court is convinced that failure to reverse it will result in a gross or manifest injustice.15 This exception is one of...
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