Cox v. Spangler

• Decision Date: 17 August 2000
• Docket Number: No. 67907-0.,67907-0.
• Citation: 5 P.3d 1265,141 Wash.2d 431
• Court: Washington Supreme Court
• Parties: Deborah E. COX and Gregory Cox, wife and husband, Respondents, v. Lynn M. SPANGLER and John Doe Spangler, wife and husband; and Ronald Spangler and Jane Doe Spangler, husband and wife, Petitioners.

5 P.3d 1265

141 Wash.2d 431

Deborah E. COX and Gregory Cox, wife and husband, Respondents, v. Lynn M. SPANGLER and John Doe Spangler, wife and husband; and Ronald Spangler and Jane Doe Spangler, husband and wife, Petitioners.

No. 67907-0.

Supreme Court of Washington, En Banc.

Argued January 25, 2000.

Decided August 17, 2000.

Stewart Andrew Estes, Seattle, for Amicus Curiae on Behalf of Washington Defense Trial Lawyers.

Harbaugh & Bloom, Gary Neil Bloom, Bryan Patrick Harnetiaux, Debra Leigh Stephens, Spokane, for Amicus Curiae on Behalf of Washington State Trial Lawyers Assoc.

Gregory John Wall, Port Orchard, for Petitioners.

Troup, Christnacht, Ladenburg & McKasy, John Joseph Durkin, Tacoma, for Respondents.

ALEXANDER, J.

Deborah Cox sustained injuries when an automobile she was driving at her employer's direction was struck from behind by another automobile. Because her injuries were work related, she received industrial insurance benefits for the injuries she sustained in the accident. Approximately six months later, she again suffered injuries when she was struck from behind by an automobile as she was driving her own automobile. Cox brought suit against Lynn Spangler, the person who caused the latter accident. At trial, the trial court excluded evidence that Spangler offered regarding industrial insurance benefits that Cox received following the November 1993 accident. It also instructed the jury that the burden of apportioning damages was on Spangler if the jury found that the injuries Cox received in the two accidents were indivisible. Cox prevailed at trial and the Court of Appeals affirmed the judgment. Spangler petitioned this court for review and we granted her petition. The issues before us are whether the trial court erred in preventing Spangler from introducing evidence that Cox received industrial insurance benefits after the November accident and whether it properly instructed the jury regarding the burden of apportioning damages. We conclude that it did not err in either instance and thus affirm the Court of Appeals.

I.

On May 19, 1993, Deborah E. Cox and some of her co-workers were driving Mazda cars to a shipping facility for their employer, Auto Warehouse, Inc. While Cox was stopped at a gate, waiting for it to be unlocked, a co-employee accidentally drove the Mazda he was driving into the rear end of the Mazda that Cox was driving. Although the impact was minor, causing less than $100 in damage to the automobile Cox was driving, Cox immediately experienced a headache and felt, in her words, that her "neck was just freaked out." Verbatim Report of Proceedings at 859. Cox was examined by a doctor, who concluded that she had suffered neck and lumbar spine strain.

Over the succeeding six months, Cox reported a variety of symptoms to several treating physicians. She complained mostly of neck pain and headaches, and indicated on several occasions that she was experiencing lower back pain.

In August, September and October Cox worked a total of only 13 days for Auto Warehouse. Cox's work schedule during this period was sporadic both because she occupied a low position on her employer's seniority list, and because her symptoms worsened upon increased activity. Because Cox was injured at work, she collected industrial insurance benefits during this period as compensation for loss of employment and for the medical expense she incurred.

By November of 1993, Cox's headaches had essentially stopped and the pain she had experienced in her neck and upper back had diminished. Unfortunately, on November 2, 1993, Cox was involved in another automobile accident. She testified that the second accident occurred when she was driving her own truck and was stopped at a crosswalk to allow some pedestrians to cross the street. A following driver, Maryanne Hummel, stopped her car five or six feet behind Cox's truck. Lynn Spangler, who was driving her automobile behind Hummel, was apparently unable to stop her automobile in time and, as a consequence, rear-ended Hummel's automobile. This had the effect of shoving Hummel's car into the rear bumper of Cox's truck. Like the earlier accident, the collision was a low-speed impact and Cox's vehicle sustained only slight damage. Although Cox refused medical assistance at the scene, she did see an orthopedic surgeon, Dr. Kunkle, the following day. According to Kunkle's written report, Cox complained at that time of "considerable pain" in her previously affected neck and upper back. For the first time, she complained of a lower backache that "radiated" down her right hip and leg. Verbatim Report of Proceedings at 202.

In the months following the November 1993 accident, Cox's physical condition deteriorated. She indicated that she continued to suffer pain and was never able to return to her job with Auto Warehouse. She also accumulated considerable medical bills following this accident, some of which were paid for by the Department of Labor and Industries (Department). Cox's pain increased to the point that, in December 1994, Dr. Kunkle referred her to Dr. Stephen Settle, a physical rehabilitation specialist. Cox complained to Dr. Settle of headaches and pains in her neck, low back, right hip, right lower extremity, and right upper extremity. Subsequent magnetic resonance imaging of Cox's neck and back indicated "a small disk protrusion" in her lower back which, according to Dr. Settle, could have pinched a nerve in her spine. Verbatim Report of Proceedings at 208.

Cox eventually brought suit against Spangler for the damages she claimed she incurred as a result of the November 1993 accident. The parties thereafter stipulated that Spangler was negligent, Deborah Cox was without fault, and no unnamed party was at fault for the accident. The stipulation preserved the issues of proximate cause and damages for trial.

Before trial, Cox filed a motion in limine to preclude the parties and their attorneys from "bringing to the [jury's] attention the fact that [Cox] may have received industrial insurance benefits from the Department of Labor & Industries as a result of a May 1993 industrial accident.". Clerk's Papers at 104. The trial court granted Cox's motion, concluding that the introduction of such evidence was precluded by the so-called collateral source rule, which bars the admission of evidence of compensation the victim received from a source independent of the tort-feasor. The court concluded that the rule was applicable because Cox suffered the "same injury" in both accidents. Verbatim Report of Proceedings at 62. At trial, the evidence established that some of Cox's injuries were not capable of apportionment between the two accidents and that her other injuries were attributable solely to the November accident. Dr. Settle testified that a lumbar sprain, like the one Cox sustained, would likely have caused Cox to experience pain or numbness during the period between the May and November accidents had the sprain been caused by the May 1993 accident. Dr. Settle therefore attributed Cox's lumbar sprain to the November accident. Dr. Settle also testified that the medical bills "relating to [treatment of Cox's] neck were a combination of the two [accidents]." Verbatim Report of Proceedings at 455. Dr. Cooper, who performed an independent medical examination of Cox for trial, testified that he made the following four diagnoses:

Cervical/dorsal strain, or neck and upper back strain, with myofascial pain in the cervical and dorsal regions, related to the motor vehicle accident of May 19, 1993, and exacerbated by the motor vehicle accident of November 2, 1993.

The second diagnosis, lumbar strain with right L5 radiculitis, due entirely to the motor vehicle accident of November 2, 1993, superimposed on minor degenerative disk disease at L5-S1.

The third diagnosis is mild depression, situational, controlled, and due to the motor vehicle accident of May 19, 1993, and the motor vehicle accident of November 2, 1993.

The fourth diagnosis, muscle tension headaches, essentially resolved.

Verbatim Report of Proceedings at 749. Dr. Cooper emphasized that Cox's condition, with the exclusion of the lumbar strain, was a "combination of the two accidents." Verbatim Report of Proceedings at 749-50. He also testified that pain that radiates below the knee typically indicates a pinched nerve in the spine. Finally, Dr. Cooper indicated that he did not attempt to segregate Cox's injuries between the two accidents beyond what he described in his testimony.

Over Spangler's objection, the trial court instructed the jury that if it found any of Cox's injuries to be "indivisible" between the May and November accidents, then Spangler bore the burden of apportioning damages for the injuries. The trial court also gave the jury the standard jury instructions on proximate cause, "lighting up" of an injury which had not previously caused pain or disability, and pre-existing bodily condition.¹ Clerk's Papers at 203-07. Neither party objected to these instructions. The jury returned a verdict in favor of Cox, for $173,880.49, which included $45,012.99 in past medical damages.

Spangler appealed to the Court of Appeals, and asserted there that the trial court erred when it excluded evidence regarding the benefits Cox received from the Department. She also claimed that the trial court erred in instructing the jury regarding apportionment of liability for damages. The Court of Appeals, Division One, affirmed the trial court. Cox v. Spangler, No. 39047-3-I, 90 Wash. App. 1028, 1998 WL 1180822 (Apr.20, 1998). Spangler thereafter petitioned this court for review, and we granted the petition.

II. Exclusion of Evidence that Cox Received Industrial Insurance Benefits

Spangler contends that the trial court improperly precluded her from introducing evidence relating to the industrial insurance benefits that Cox received after the November 1993 accident. Pet. for Review at 11. Spangler argues here, as ...