Cecil v. D AND M INC.
| Decision Date | 15 June 1999 |
| Docket Number | No. 25330.,25330. |
| Citation | 205 W.Va. 162,517 S.E.2d 27 |
| Court | West Virginia Supreme Court |
| Parties | Eric Calvin CECIL and Esther M. Cecil, Plaintiffs Below, Appellees, v. D AND M INCORPORATED, a West Virginia Corporation; J.H. Fletcher & Co., the Successor of D and M Incorporated; and Service Machine Company, a West Virginia Corporation, d/b/a SMC Electrical Products, Inc., Defendants Below, Appellees, Consolidation Coal Company, Defendant Below, Appellant. |
William Flanigan, Esq., Derek Craig Swope, Esq., Sanders, Austin, Swope & Flanigan, Princeton, West Virginia, Attorneys for the Cecils.
W. Warren Upton, Esq., Mychal S. Schulz, Esq., Jackson & Kelly, Charleston, West Virginia, Attorneys for Consolidation Coal Company.
This case is before this Court upon appeal of a final order of the Circuit Court of McDowell County entered on August 22, 1997. The appellee and plaintiff below, Eric Calvin Cecil, an employee of the appellant and defendant below, Consolidation Coal Company (hereinafter "Consolidation"), was injured when two rail vehicles collided in Consolidation's Amonate Mine. Mr. Cecil and his wife filed a complaint asserting a "deliberation intention" claim pursuant to W.Va.Code § 23-4-2(c)(2)(ii) (1991)1 against Consolidation and products liability claims against J.H. Fletcher & Co. (hereinafter "Fletcher"), and D and M, Inc. (hereinafter "D & M"). Prior to trial, the Cecils settled the product liability claims with Fletcher and D & M for $290,000.00. The case proceeded to trial against Consolidation and resulted in a judgment in favor of the Cecils in the amount of $617,593.46.2
In this appeal, Consolidation contends that the circuit court erred by (1) allowing certain evidence to be presented at trial; (2) denying its motion for judgment notwithstanding the verdict; and (3) refusing to reduce the verdict by the amount of the settlements between the Cecils and Fletcher and D & M and the amount of future medical expenses that will be incurred by Mr. Cecil. This Court has before it the petition for appeal, the designated record, and the briefs and argument of counsel. For the reasons set forth below, we affirm, in part, and reverse, in part, the final order of the circuit court.
This case arises out of an accident that occurred on January 15, 1993, in Consolidation's Amonate Mine in McDowell County. At that time, Eric Calvin Cecil, a roof bolter, was working in the B-Right Section of the mine. In order to reach that section of the mine, the miners rode in rail vehicles known as "manbuses." From the main track, the manbuses traveled down a 450-foot slope with a 10% grade to a stop block where the men exited the vehicle and walked the remaining distance to the area where they were working.
Just prior to the accident, Mr. Cecil and the other members of his crew had stopped working because a continuous miner had broken down. The crew had walked back to the manbus so they could exit the mine. Mr. Cecil was the first to arrive at the manbus, and he boarded and sat down to wait on the other men. After some of the other men had boarded, the driver of the manbus, Gene Hall, energized the vehicle and activated the radio. While waiting for clearance to exit the mine, shouts of "runaway" were heard over the radio and a light was seen coming down the B-Right section of the track. The light was coming from another small rail vehicle know as a "mechanics jeep" driven by Paul Pendleton, a maintenance foreman for Consolidation.
According to Mr. Pendleton, he was taking a part for the broken continuous miner to the B-Right section. He had received clearance to travel down the track and as he proceeded down the B-Right slope, he applied the electric brake, but the vehicle failed to slow down. He then grabbed the manual service brake, but it did not work either. At this point, Mr. Pendleton saw the lights of the manbus at the end of the track. He yelled "runaway" into the radio several times and then jumped out of the vehicle.
Mr. Cecil did not understand what was happening when he first heard the shouts on the radio, nor did he see the lights of the mechanics jeep. As soon as he realized what was happening though, he attempted to exit the manbus. Unfortunately, Mr. Cecil was unable to get off the vehicle before it was struck by the mechanics jeep. He was seriously injured in the collision.3
Following the accident, Mr. Cecil and his wife filed a complaint asserting a "deliberate intention" claim against Consolidation and product liability claims against Fletcher and D & M. The product liability claims centered around the design of the mechanics jeep. Prior to trial, the Cecils settled with Fletcher and D & M for $290,000.00. A jury trial was held January 29, 1996 through February 6, 1996, and resulted in a verdict in favor of the Cecils in the amount of $1,017,440.65. Thereafter, Consolidation filed several post trial motions.
On April 4, 1997, the circuit court granted an offset in the amount of $255,216.00 pursuant to W.Va.Code § 23-4-2(b) for the present-day value of the permanent total disability award granted to Mr. Cecil under the Workers' Compensation Act. The court also reduced the verdict by $70,766.02 which represented the total amount of past medical expenses incurred by Mr. Cecil that was paid by or through the Workers' Compensation Act. The circuit court further determined that Consolidation was not entitled to a reduction in the verdict for Mr. Cecil's future medical expenses because there was no evidence that the jury made an allowance in its verdict for this amount.4 Finally, the court denied an offset of $290,000.00, representing the good faith settlement between the Cecils and Fletcher and D & M. Accordingly, the judgment amount entered against Consolidation was $760,593.46.
On July 25, 1997, the circuit court denied Consolidation's motion for judgement notwithstanding the verdict and motion for a new trial. However, the circuit court reserved a remittitur issue raised through the motions. On August 22, 1997, the court granted Consolidation a remittitur for the difference between the jury award of $650,000.00 for lost wages and the calculation of $507,000.00 for lost wages by the Cecils' expert economist, Dr. Ben Tuchi. Accordingly, the jury verdict was reduced by $143,000.00 and a final judgment of $617,593.46 was entered. This appeal followed.
We first consider Consolidation's contention that the circuit court erred by allowing the Cecils to present certain evidence at trial. Specifically, Consolidation avers that the circuit court should not have allowed the Cecils to offer evidence of other alleged runaway accidents at the Amonate Mine to prove that Consolidation had "subjective realization and an appreciation of the existence of [a] specific unsafe working condition" as set forth in W.Va.Code § 23-4-2(c)(2)(ii)(B). Consolidation also contends that the circuit court should not have permitted evidence of subsequent remedial measures taken by Consolidation after the accident.
We have previously held that "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus Point 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983). See also Syllabus Point 4, Riggle v. Allied Chemical Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989); Syllabus Point 5, Grillis v. Monongahela Power Co., 176 W.Va. 662, 346 S.E.2d 812 (1986). "Thus, evidentiary decisions of a trial court are entitled to substantial deference." McDougal v. McCammon, 193 W.Va. 229, 235 n. 5, 455 S.E.2d 788, 794 n. 5 (1995).
Consolidation argues that testimony regarding prior runaway incidents at the Amonate Mine should have been excluded from evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.5 Consolidation claims that the other runaway incidents were not "substantially similar" to the accident involving Mr. Cecil and therefore, this evidence should not have been considered by the jury to determine whether Consolidation had "subjective realization and an appreciation of the existence of such specific unsafe working condition." Citing Syllabus Point 3, in part, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991) ().
The record indicates that the circuit court considered whether to exclude evidence of other alleged runaway accidents prior to trial pursuant to a motion in limine filed by Consolidation. Apparently, the Cecils planned to present evidence at trial of several other alleged runaway accidents that had occurred in the Amonate Mine. However, the circuit court struck part of the evidence finding that it was too remote and that the prejudicial effect would outweigh its probative value. The court did find that two prior alleged accidents were relevant to the plaintiffs' theory of the case and allowed that evidence to be introduced at trial. One runaway accident involved Consolidation's mine foreman, Danny Crutchfield. The other runaway accident involved two other Consolidation employees. After reviewing the trial testimony and the circuit court's ruling on this issue, we do not find that the circuit abused its discretion by allowing this evidence to be considered by the jury.
Consolidation also argues that the circuit court erred by allowing the Cecils to introduce evidence that it installed a derail device in the B-Right section of the mine following Mr. Cecil's accident. Consolidation contends that this evidence should have been excluded pursuant to Rule 407 of the West Virginia Rules of Evidence.6 The trial transcript indicates that the circuit court permitted the Cecils to introduce this evidence under the "feasibility" exception...
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...miners being crushed and mangled while they were sitting inside passenger-carrying rail cars. A classic example is Cecil v. D and M Inc., 205 W.Va. 162, 517 S.E.2d 27 (1999) where the plaintiff (who, like the appellant, was working for a Consolidated Coal Company subsidiary) was seriously i......
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