Blankenbecler v. Rogers
| Decision Date | 24 February 2015 |
| Docket Number | No. A-13-894.,A-13-894. |
| Parties | MARTHA BLANKENBECLER, APPELLANT, v. GINGER L. ROGERS, CHANEL OWENS, AND SHANICE ROSS, APPELLEES. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge. Affirmed in part, and in part reversed and remanded for a new trial.
Robert S. Sherrets and Jason M. Bruno, of Sherrets, Bruno & Vogt, L.L.C., for appellant.
Karen Weinhold and Angela D. Jensen-Blackford, of Engles, Ketcham, Olson & Keith, P.C., for appellees.
Martha Blankenbecler brought suit against the Appellees for damage to her vehicle. A jury verdict was entered in Blankenbecler's favor against Shanice Ross, which verdict was accepted by the district court for Douglas County. On appeal, Blankenbecler challenges the district court's denial of her motion for sanctions, the admission of certain evidence regarding the value of her vehicle, and the denial of her motion for new trial. We find no abuse of discretion by the district court in denying Blankenbecler's motion for sanctions. However, we find the admission of certain exhibits was prejudicial error. We therefore reverse the judgment of the district court and remand the cause for a new trial.
On November 15, 2011, Blankenbecler filed a complaint in the district court for negligence and negligent entrustment against Ginger L. Rogers, Chanel Owens, and Shanice Ross. Blankenbecler alleged that on June 29, Ross recklessly, carelessly, and negligently drove a vehicle owned by Rogers and entrusted to Ross by Rogers and Owens into a parked pickup truck owned by Blankenbecler, totaling the pickup. Blankenbecler later voluntarily dismissed the action as to Rogers and Owens, and the action proceeded only against Ross.
On January 3, 2012, Ross answered, through counsel, admitting liability but denying the extent of Blankenbecler's damages.
On March 16, 2012, Blankenbecler filed a motion to compel, seeking an order requiring Ross to provide sufficient answers to certain interrogatories and verify her answers to interrogatories under oath. On April 9, the district court entered an order granting this motion in part. The court ordered Ross to answer a particular interrogatory and to produce any statements in her possession and gave her 15 days to verify her answers to interrogatories under oath. On April 25, Blankenbecler filed a subsequent motion to compel Ross' deposition, alleging that after requesting dates for Ross' deposition, her counsel indicated she was unable to provide any such dates because she had never been able to reach Ross. On May 16, the court granted the subsequent motion to compel filed by Blankenbecler and ordered Ross to appear for a deposition within 30 days.
On July 9, 2012, Blankenbecler filed a motion pursuant to Neb. Ct. R. Disc. § 6-337 in which she asked for sanctions as Ross had failed to comply with the district court's previous orders. Blankenbecler sought attorney fees and asked the court to designate as established fact that her damages were $9,500 and to prohibit Ross from offering evidence on the issue of damages and/or enter a default judgment against Ross. On August 6, Ross' counsel filed an opposition to Blankenbecler's motion and a counter motion for sanctions, including attorney fees, pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2008). Ross' counsel attached documentation of her communications with Blankenbecler's counsel about issues with respect to Ross.
The district court heard the parties' motions for sanctions on August 15, 2012. Dialog during the hearing between the court and the parties' counsel reveals that Ross' counsel did not know where Ross was and had never been able to make contact with her, despite making various attempts. Ross' counsel also had agreed to accept service for her in exchange for admitting liability with the further agreement that any award would be paid. Given the admission of liability, Ross' counsel questioned the need for a deposition as Ross would only be able to testify to the facts of the accident and not to Blankenbecler's damages.
On August 16, 2012, the court entered an order denying Blankenbecler's motion for sanctions but continuing Ross' motion for sanctions until further notice. Ross' motion for sanctions was eventually denied.
A jury trial was held on May 6, 2013. As Ross had admitted liability, the only issue was Blankenbecler's damages. Blankenbecler purchased the 1994 Ford Ranger XLT at issue in this case as new in either 1994 or early 1995. According to Blankenbecler, the Ranger was in very good condition at the time of the accident and only had 73,000 miles on it. The Ranger did have some rust damage around the wheel wells and minor hail damage on the hood. Blankenbeclerwas not able to drive the Ranger after the accident and obtained a rental car for two weeks at a charge of $36.80 per day. She valued the Ranger, prior to the accident, at $7,248 and testified that after the accident it was "not worth a penny." On cross-examination, Blankenbecler testified that she no longer owned the Ranger, asserting when asked where the Ranger was,
Blankenbecler presented testimony from Dennis Troy Robey, an individual with more than 20 years' experience in the car business. Robey lived in Florida at the time of trial, but he had previously owned two used car lots and a Mitsubishi dealership in Nebraska. Robey described his experience with and process used for valuing vehicles in the course of his business, and he valued the Ranger, prior to the accident, at $6,750. Robey did not inspect the Ranger personally, but used photographs and information obtained from Blankenbecler in valuing it. He also used "some of the normal guides," such as the "National Auto Dealers Association (NADA)" book and "Kelly Blue Book," but felt that those guides were not as accurate as "Manheim Market Reports and other things" because "in the automotive industry . . . the guides . . . are founded by depreciation matrixes rather than real numbers," which means "you have to base your decision largely on your experience with similar vehicles." He did not determine the Ranger's value after the accident but agreed that it appeared to be a total loss.
Ross' counsel presented testimony from Shelly Marsolek, who had worked for six years as an auto estimator at the time of trial. Over the course of her career, she has prepared 16,000 to 17,000 separate vehicle estimates. Prior to her work as an estimator, she attended school to learn collision repair. According to Marsolek, she has been involved in the car industry for almost 20 years. Marsolek has received training from her employer on various estimating systems, including the "Audatex system." We note that Marsolek referred to both "Audatex" and "AutoSource" at trial but the distinction or relationship between the two terms is not clear from the record.
Marsolek described the process she uses in preparing a damage estimate, which includes a personal inspection of the vehicle, taking photographs, and notation of any prior damage. Marsolek then prepares a Vehicle Inspection Report which lists all the options on the vehicle, the overall condition of the vehicle, and any prior damage. Marsolek personally enters the relevant data about the vehicle into the electronic estimating system, which system performs the mathematical equations and arrives at the estimate of damage. In the event that the vehicle is a total loss, the system determines the fair market value. Marsolek testified that the Audatex estimating system is a computerized system which generates information that was previously done by hand.
In determining the fair market value of a vehicle that is a total loss, Marsolek stated that most of the time "they" use the NADA book, which takes into consideration the geographic area where the vehicle is located, something according to Marsolek that the Kelly Blue Book does not do. Marsolek looked at the NADA book when working on the evaluation of the Ranger in this case and indicated that the valuation prepared by AutoSource was actually a little higher than that shown in the book. Marsolek considers the NADA a reliable source.
In valuing the Ranger, Marsolek inspected it in person and noted certain damage not caused by the accident. Such other damage included damage to the hood, along with hail and rust damage. Marsolek testified that the hail damage does not show up in the photographs of theRanger and that hail damage is often difficult to see. She also indicated that some of the rust she observed on the Ranger is not shown in the photographs. During her inspection of the Ranger, Marsolek prepared a Vehicle Inspection Report using the Audatex program, which was marked as exhibit 9. Exhibit 9 is a preprinted report, dated July 6, 2011, showing various attributes for Blankenbecler's Ranger, noting and valuing prior damage, and determining that the damage to the vehicle from the accident resulted in a total loss. Marsolek testified that the report contains the vehicle information she obtained during her inspection, that it is the regular practice of her company to create such records when a vehicle is a total loss, and that such records are kept in the ordinary course of her company's regularly conducted business activity. Marsolek testified that the report contained information she relied upon at least in part in determining her opinion as to the Ranger's fair market value. The district court admitted exhibit 9 into evidence over Blankenbecler's foundation, hearsay, and relevance objections.
After performing her inspection and preparing the Vehicle Inspection Report, Marsolek obtained a valuation of the Ranger through the...
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