Capshaw v. Gulf Ins. Co.

Decision Date08 February 2005
Docket NumberNo. 99,093.,99,093.
Citation2005 OK 5,107 P.3d 595
PartiesTerry CAPSHAW, Plaintiff/Appellee, v. GULF INSURANCE COMPANY, a Missouri Insurance Carrier, Koch Trucking, Inc., a foreign corporation, Stan Koch & Sons Trucking, Inc., a foreign corporation, and Sam Coronado, Defendants/Appellants.
CourtOklahoma Supreme Court

Barry K. Roberts, Norman, OK, Joe Farnan and Steve Langer, Purcell, OK, for Appellee.

Earl D. Mills, Dan K. Jones, Oklahoma City, OK, for Appellants.1



¶ 1 Two issues are presented on certiorari: (1) Did COCA err when it reversed the nisi prius judge's new-trial order? and (2) Did COCA identify and apply on appeal the correct standard of review? Because both questions are answered in the negative, we reverse the nisi prius new-trial grant by applying an analysis that differs from that used by COCA.


¶ 2 This action arose from an automobile accident in which a pickup truck driven by Terry Capshaw (Capshaw, plaintiff or appellee) was struck from the rear by a semi tractor driven by Sam Coronado, an employee of Koch Trucking, Inc. (together with Stan Koch & Sons Trucking Inc., and Gulf Insurance Co., collectively to be known as Coronado, defendant or appellant). The basic facts are uncontested. Immediately preceding the accident Capshaw was stopped at an intersection awaiting a green traffic signal. Coronado came to a stop behind him. Capshaw proceeded through the intersection and then stopped to make a left turn. Coronado's truck rear-ended plaintiff's pickup.

¶ 3 A trial by jury dealt with contested issues of liability and with whether Capshaw sustained any injury from this collision.2 Coronado also urged Capshaw's contributory negligence. At the close of the evidence, after instructions were read, the verdict form was handed to the jury. Although the parties tendered for the court's use in the case Oklahoma Uniform Jury Instruction (OUJI) verdict forms,3 none objected to the nonstandard form selected by the judge.4 By a unanimous verdict, the jury found none of the parties to have been negligent and awarded no recovery.5 The trial judge — in conversation with both parties' counsel and outside the jury's hearing — then expressed sua sponte his concern that he submitted to the jury a flawed verdict form.6 Although the form permitted a no-negligence finding, the judge did not think the jury was free to find, under the submitted theories of the case, none of the parties negligent but rather was required to find the sum of the parties' negligence to be no less than one hundred percent.7 Both parties' counsel seemed deferential to the judge's concern. Capshaw's lawyer suggested a mistrial. Coronado's counsel urged that the jury be re-instructed and afforded the opportunity to deliberate further. The judge accepted neither suggestion. He directed the verdict be read and accepted. The jury was discharged. Upon the judge's request for post-verdict motions, Capshaw moved for a mistrial, a new trial or judgment notwithstanding the verdict. When the new-trial motion was sustained, Coronado appealed.

¶ 4 On appeal Coronado urged the trial judge abused his discretion because: (1) the record is silent concerning the basis for a new-trial grant; (2) if the basis is an alleged error in the blank verdict form, Capshaw, by his failure timely to preserve this perceived defect, waived the error he now alleges in his motion for new trial;8 (3) the trial judge could have used less drastic means to correct the verdict; and (4) there was competent evidence to support the jury's verdict.9 According to Capshaw, the trial court did not err. This is so because the verdict form — which permitted the jury to find that none of the litigants was negligent even though the defense of unavoidable accident was not urged — is fraught with fundamental (manifest) error. According to plaintiff, this error misled the jury and detrimentally affected its assessment of damages.

¶ 5 COCA did not address itself to whether the verdict form was tainted by fundamental error. Its opinion is bottomed on the rationale that a jury may find liability and yet limit or assess no damages.10 It concluded that although insofar as it dealt with the litigants' negligence the jury verdict could have been corrected, its decision not to award damages adequately serves as a resolution of the dispute and as grounds to deny the new-trial motion.11 Any defect in the form was not fatal, and a new trial should not have been granted. COCA reversed the trial court's order and remanded the cause with instructions to reinstate the jury's verdict that allowed no recovery. Capshaw sought certiorari relief.


¶ 6 We first turn to Capshaw's argument that COCA's pronouncement fails to apply the correct standard of appellate review. COCA's opinion reveals that the issue before it was reviewed as one of law12 and the standard to be used as that of abused discretion.13 It then references the terms of 20 O.S.2001 § 3001.1,14 whose review standard deals with appellate reversal of a jury verdict by granting a new trial. This confusion is magnified by some of COCA's language that appears later in the opinion and, according to Capshaw, incorrectly places the burden of proof on him as the appellee.15

¶ 7 A motion for new trial is addressed to the sound discretion of the trial court.16 When a trial court grants a new trial and its decision is appealed, we will indulge every presumption in favor of that decision's correctness.17 In reviewing a trial court's grant of new trial, the standard of review an appellate court must apply is whether the trial court abused its discretion.18 Because a trial court's discretion is broad its ruling will not be disturbed by the reviewing tribunal in the absence of a clear showing of a manifest error or abuse of discretion with respect to a pure, simple and unmixed material question of law.19

¶ 8 An appellate court's standard of review is not mere ritualistic legal liturgy. It defines the permissible sweep of critical testing to be undertaken by a reviewing court. Its recitation must be correct and serve more significantly than as an empty gesture.20 Although initially identifying and appearing to apply the correct standard of review — abuse of discretion — COCA also injects a different standard, that embodied in the terms of § 3001.1.21 The cited provision is inapplicable to today's procedural scenario. That section targets only appellate dispositions that reverse judgments on jury verdict by granting a new trial. Today's cause does not deal with that type of disposition. Even if we were to conclude that the § 3001.1 criteria were not employed by COCA — and hence their insertion merely superfluous — COCA's reference to those statutory terms appears misleading.

¶ 9 Moreover, the burden to establish a trial court's abused discretion when granting a new trial rests upon the appellant, not on the appellee. COCA's choice of words — "Capshaw has not show(n) otherwise" — seemingly infers that appellee has not met his burden to show the trial court's decision is error free. It was Coronado's, not Capshaw's, burden on appeal to show that the trial judge abused his discretion in deciding a critical question of law. In view of its reference to conflicting tests and of COCA's oblique language for defining an appellant's burden on review, we cannot say that COCA's pronouncement was guided by the correctly applicable standard of review.




¶ 10 Having settled the proper review standard to be used, we now turn to whether the trial court erred as a matter of law when it granted plaintiff's new-trial motion. COCA's opinion rests on the teaching that a jury may legitimately find negligence without assessing damages.22 Capshaw agrees that this is indeed a correct statement of Oklahoma jurisprudence, but that a jury determination carries legitimacy only if the triers were properly instructed. He asserts use either of a flawed verdict form or of confusing instructions that mislead the jury and result in a verdict that is different from that which it otherwise would have rendered may not be allowed to stand.23 Here, the form permitted no-negligence findings for any party which, he contends, is a fundamentally flawed statement of Oklahoma law.24 This confused and misled the jury. According to plaintiff, the critical rule of law which might have been used here — that the apportioned aggregate negligence by all parties must total one hundred percent — was omitted from the non-standard verdict form.25 The trial judge, urges Capshaw, recognized an error because no proper evaluation of the evidence can justify a finding of no negligence by the defendant.26 According to plaintiff, this error led the jury to make findings about damages that would have been different but for this defect.27 The trial judge did not hence err in exercising his discretion by a new-trial grant.

¶ 11 Coronado responds (1) plaintiff's contention the verdict form confused the jury and tainted the trial's outcome is merely speculative and hence cannot stand as the basis for a new trial and (2) even if the verdict form were incorrect there is here competent proof to support the jury's verdict.28


¶ 12 Capshaw's contention is, in essence, twofold: (1) the blank verdict form was fraught with a fatal facial defect and (2) this defect operated to taint the jury's decision against awarding damages. Coronado's COCA briefs (although not his certiorari materials) urge that Capshaw failed timely to except to the verdict form and hence waived the error he later alleged in his new-trial motion.2...

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