Brimbau v. Ausdale Equipment Rental Corp.

• Citation: 376 A.2d 1058,119 R.I. 14
• Decision Date: 28 July 1977
• Docket Number: No. 76-276-A,76-276-A
• Parties: Agostinho BRIMBAU v. AUSDALE EQUIPMENT RENTAL CORPORATION.
• Court: United States State Supreme Court of Rhode Island

Page 1058

376 A.2d 1058

119 R.I. 14

Agostinho BRIMBAU v. AUSDALE EQUIPMENT RENTAL CORPORATION.

No. 76-276-A.

Supreme Court of Rhode Island.

July 28, 1977.

Raymond A. LaFazia, Patricia Ryan Recupero, Joseph A. Kelly, Providence, for plaintiff.

Keneth P. Borden, Higgins, Cavanagh & Cooney, Providence, for defendant.

OPINION

DORIS, Justice.

This is a civil action to recover for personal injuries allegedly caused by the negligence of the defendant, Ausdale Equipment Rental Corporation (Ausdale). The case was tried to a Superior Court justice, sitting with a jury. The jury found for the plaintiff, Agostinho Brimbau, in the amount of $370,550, and the defendant now appeals.

This case arose out of an accident which occurred on September 16, 1966. At that time, Brimbau was employed as a laborer by the Marzano Construction Company, Inc. (Marzano Construction) at a construction site in the city of Warwick. Marzano Construction was there engaged in the installation of storm drains, and Brimbau was part of a pipelaying crew. The crew consisted of Rocco Marzano, who was the backhoe ¹ operator, a backhoe oiler, and two laborers. While Rocco Marzano was operating the backhoe, a cable which supported the boom and bucket snapped, causing the boom and bucket to fall to the ground. Brimbau was struck by the machine and seriously injured.

One of the central issues in the case is the exact nature of Ausdale's involvement in the accident. Ausdale is a corporation which owned the backhoe in question. Rocco Marzano was the president and treasurer of Ausdale. It was undisputed that Ausdale had leased the backhoe to Marzano Construction several months before the accident. It was also undisputed that Rocco Marzano operated the backhoe while it was in Marzano Construction's possession and that he received an hourly wage from Marzano Construction. There was contradictory evidence as to who was responsible for maintenance of the machine.

Following the accident, Brimbau received payments under the Workmen's Compensation Act, G.L. 1956 (1968 Reenactment) chapters 35 and 37 of title 28. He also brought suit against Ausdale. One count of the complaint alleged negligence; the other count asserted liability on the basis of the "exclusive control" doctrine. The jury returned a general verdict for plaintiff. Ausdale appealed the verdict on the following grounds: that the trial justice erroneously denied the motion for a directed verdict; that the charge to the jury was incorrect; that certain evidentiary rulings were incorrect; and that its motion for a new trial was erroneously denied. For the reasons which follow we grant defendant's appeal and remand the case to Superior Court for a new trial.

I. The Motion for a Directed Verdict

We consider first the trial court's denial of defendant's motion for a directed verdict. The law is clear both as to the role of the trial justice in ruling on such a motion and as to our role in reviewing his decision:

"(T)he trial justice must view all the evidence in a light most favorable to the adverse party and is obliged to give such party the benefit of all reasonable and legitimate inferences which may be properly drawn therefrom without sifting or weighing the evidence or exercising the justice's independent judgment as to the credibility of witnesses; and, if after taking such a view, he finds that there exists issues upon which reasonable persons might draw conflicting conclusions, he should deny the motion and the issues should be left to the jury to determine. When the Supreme Court reviews the trial justice's decision on a motion for a directed verdict, the court looks at the evidence in the same manner and fashion as the trial justice and is bound by the same rules which govern him." Pimental v. D'Allaire, 114 R.I. 153, 156, 330 A.2d 62, 64 (1975).

The first ground advanced by defendant in support of its motion was plaintiff's alleged failure to demonstrate the existence of a compensation repayment agreement. In this case, prior to bringing suit plaintiff received workmen's compensation payments from Marzano Construction's compensation carrier pursuant to chapter 33 of title 28, as allowed by § 28-35-58. ² The plaintiff also received compensation payments from the "second injury fund", pursuant to § 28-37-4. ³ It is settled that one who is injured may not reap the benefits of a double recovery; that is, he cannot receive both workmen's compensation benefits and damages from the tortfeasor. Accordingly, one who has received workmen's compensation benefits may only sue a third party tortfeasor if he first agrees to repay those who paid him compensation. As we said in Colarusso v. Mills, 99 R.I. 409, 416, 208 A.2d 381, 385 (1965):

"(A) prior recovery of compensation benefits by an injured worker will not prohibit suit against the wrongdoer if he can establish either that he has agreed with his employer to reimburse him out of any recovery or that his employer has refused to enter into any such agreement. In the latter event, however, any ultimate recovery should be reduced by the amount of the compensation benefits received."

At trial plaintiff attempted to meet this burden by introducing a written repayment agreement. It appeared on its face to be signed by plaintiff. A representative of the compensation carrier who paid the compensation to plaintiff produced this document and testified that it came from the files which the carrier kept in the ordinary course of business.

The defendant argues that this agreement was deficient for several reasons. First, defendant asserts that the introduction of this agreement was erroneous because it lacked proper authentication. We cannot agree. It is true that a signed writing may not be introduced unless it is authenticated. But authentication need not necessarily be by way of direct testimony as to the authenticity of the signature: "(P)roof of any circumstance which will support a finding that the writing is genuine will suffice to authenticate the writing." McCormick, Evidence § 222 at 548 (2d ed. 1972). Proof of private custody of a document is one well-accepted mode of circumstantial proof of its authenticity. 7 Wigmore, Evidence § 2160 at 632 (3d ed. 1940); McCormick, supra, § 224 at 552. See United States v. Imperial Chem. Indus., 100 F.Supp. 504 (S.D.N.Y. 1951) (presence of unsigned memorandum in corporate files sufficient to authenticate it.)

In the case at bar, the testimony of the compensation carrier that the agreement was contained in plaintiff's file, which was kept in the ordinary course of business, provided a sufficient basis to support a finding that plaintiff's signature was genuine. In such circumstances, the likelihood of forgery seems remote. Accordingly, the trial justice did not err in admitting the document.

The defendant also argues that the purported agreement was in fact illusory, because plaintiff only agreed to reimburse the insurer "as provided by law" and there is no explicit provision in the statute requiring repayment. Again, we cannot agree. Neither the statute nor judicial interpretations thereof specify the exact form of agreement required. Here, plaintiff did agree to repay those who paid him compensation in the event that he recovered from the third party tortfeasor. This is all that is required. The statute does not require that the agreement be in writing, or that it be signed by the injured employee or by the insurer. The agreement need not be made at any specific time. As to the statement that repayment would be "as provided by law", we find it quite understandable in view of § 28-35-58 which provides for a pro-rata reduction of the required amount of repayment to allow for court costs, attorney's fees, and other out-of-pocket expenses incurred by the injured employee in his action against the third party tortfeasor.

The defendant next argues that, even assuming the facts were as stated by plaintiff, plaintiff's promise to repay was insufficient because the insurer did not specifically agree to it or, in the alternative, refuse to enter into such an agreement. It is true that a plaintiff must show such an agreement, or a refusal to agree, in order to maintain suit. This requirement is discussed at length in Colarusso v. Mills, supra. The reason for requiring such action on the part of the one who has paid compensation is to protect the third party tortfeasor. This protection is necessary because the carrier who pays compensation is subrogated to that extent to the injured employee's right of action against the tortfeasor. Unless the carrier consented to be repaid by the injured employee out of any tort recovery, this right of subrogation would persist. A tortfeasor who paid the injured employee in full would still be subject to suit by the carrier, on the basis of its subrogated rights, to recover any compensation payments previously made to the employee. Thus, the question we face is whether the facts in this case demonstrate that the carrier manifested sufficient assent to the agreement in question to protect defendant from a possible double recovery.

The precise manner in which such an agreement is intended to prevent a double recovery from the tortfeasor is not clearly specified in the statute. See generally Fireman's Fund Ins. Co. v. Lubash, 95 R.I. 311, 186 A.2d 722 (1962). Whether the agreement is intended to function as a release by the insurer of its right of action against the tortfeasor, which the tortfeasor may rely on as a third party beneficiary, or whether the agreement works on estoppel against the insurer, or whether some other principle operates, is unclear. Thus it is difficult to state with precision the standard against which we must measure the sufficiency of the repayment agreement. However, we have little doubt that in this case the insurer's conduct would give rise to an estoppel should the insurer try at some later time to recover from defendant. We base this conclusion...