Davis v. Lira

• Decision Date: 31 January 1991
• Docket Number: 89CA1474,Nos. 89CA1240,s. 89CA1240
• Citation: 817 P.2d 539
• Parties: Jeffrey A. DAVIS, Plaintiff-Appellant and Cross-Appellee, v. Joel LIRA, Defendant-Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 539

817 P.2d 539

Jeffrey A. DAVIS, Plaintiff-Appellant and Cross-Appellee, v. Joel LIRA, Defendant-Appellee and Cross-Appellant.

Nos. 89CA1240, 89CA1474.

Colorado Court of Appeals,

Div. II.

Jan. 31, 1991.

Rehearing Denied March 28, 1991.

Certiorari Granted Sept. 16, 1991.

Fogel, Keating & Wagner, P.C., Alan C. Shafner, Denver, for plaintiff-appellant and cross-appellee.

Lapin and Herrick-Stare, P.C., James B. Lapin, Randall S. Herrick-Stare, Stephen M. Johnson, Julian M. Izbiky, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge DUBOFSKY.

Plaintiff, Jeffrey A. Davis, appeals the trial court's reduction of a jury verdict awarding exemplary damages against defendant, Joel Lira. Defendant cross-appeals the judgment entered on a jury verdict in favor of plaintiff. We affirm the judgment entered on the jury verdict in favor of plaintiff but reverse the reduction of the exemplary damages award.

In the early morning of January 3, 1988, defendant, while driving his truck on Interstate 25 in Denver, became engaged in a game of "road warriors" with another vehicle. Eventually, the two vehicles stopped in the travel lanes of the highway, and defendant and the other driver, Edgar Gunn, emerged and had a fist fight.

Following the fight, Gunn and David Gutierrez (a passenger in Gunn's car) took the keys from defendant's vehicle and left. Defendant abandoned his truck in the middle of the highway and went to a bar before going home to sleep. Soon thereafter, plaintiff's car struck defendant's abandoned vehicle and plaintiff sustained numerous injuries.

In this action in which only Lira was present as a defendant, the jury awarded $87,300 in actual damages and $87,300 in exemplary damages. The jury allocated the percentage negligence of the various participants as follows: (1) Lira--50 percent; (2) Gunn--15 percent; (3) Gutierrez--23 percent; and (4) Davis--12 percent. The court reduced the compensatory and exemplary damages award so that they reflected the percentage negligence of plaintiff and the other nonparties (named as defendants by plaintiff but never joined in suit).

I.

Plaintiff argues that the trial court erred in reducing the jury award of $87,300 in exemplary damages by the percentage of negligence attributed to plaintiff and others. We agree.

The exemplary damages statute, amended in 1986, states that the "amount of such reasonable exemplary damages shall not exceed an award which is equal to the amount of the actual damages awarded to the injured party. " Section 13-21-102(1)(a), C.R.S. (1987 Repl.Vol. 6A) (emphasis added). Lira argues that the statutory phrase, "amount of the actual damages awarded," refers to the damages awarded in the judgment after application of the comparative negligence statute, and not to the total amount of damages actually incurred by plaintiff. Under such construction, the trial court's reduction would be proper, but we conclude that such construction is inconsistent with the policy underlying an award of exemplary damages and with the legislative intent reflected in the statute.

The underlying purpose of punitive damages is to punish a wrongdoer, not to compensate a victim based on concepts of fault. A. Palmer & S. Flanagan, Comparative Negligence Manual § 1.310 at 63 (Rev. ed. 1986). Thus, the majority rule is that exemplary damages are not reduced to reflect the plaintiff's or other parties' comparative negligence. Under the exemplary damages statute applicable prior to the 1986 amendment, our courts also concluded that punitive damages should not be reduced by a plaintiff's negligence. See Jacobs v. Commonwealth Highland Theatres, 738 P.2d 6 (Colo.App.1986); Carey v. After the Gold Rush, 715 P.2d 803 (Colo.App.1986).

Colorado first enacted an exemplary damages statute in 1889. In 1986, the above-quoted amendment was passed which for the first time restricted exemplary damages to a one-to-one relationship to actual damages. Cf. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984) (ten-to-one ratio of exemplary to compensatory damages upheld as reasonable). Thus, the issue presented is the intent of the General Assembly in enacting the amendment.

Our analysis of the legislative history of the amendment leads us to conclude that the legislative intent was not to alter prior appellate decisions that affirmed awards of damages without a reduction for the plaintiff's or other parties' negligence. See Hearings on H.B. 1197 before the House State Affairs Committee, 55th General Assembly, 2nd Session (Feb. 4, 1986); Rauschenberger v. Radetsky, 745 P.2d 640 (Colo.1987); 1A N. Singer, Sutherland Statutory Construction § 22.30 (4th ed. 1985).

The legislative history indicates that there was debate over an exemplary damages award in relationship to a nominal damages award with a proposed cap of $25,000 for exemplary damages. See Hearings on H.B. 1197 before the House State Affairs Committee, 55th General Assembly, 2nd Session (Feb. 4, 1986) (statements of Representative Skaggs). Thus, the term "actual damages awarded" contemplates more than damages resulting from plaintiff's actual injury. See Carey v. After the Gold Rush, supra.

In White v. Hansen, 813 P.2d 750 (Colo.App.1990), this court held that under the previous exemplary damages statute, the term "actual damages awarded" meant the total damages assessed or determined by the jury and not those that were actually received by the plaintiff. In reaching this conclusion, the Hansen court relied on (1) the plain language of the statute; (2) the decisions holding that exemplary damages are not diminished by the negligence of the parties; and (3) interpretations of the exemplary damages statute which had previously liberally interpreted the concept of an actual award of damages. We agree with the reasoning and conclusion of Hansen that the term "actual damages awarded," as relevant here, means those total compensatory damages awarded to plaintiff prior to adjustment affecting reductions for the negligence of plaintiff. See Bodah v. Montgomery Ward & Co., 724 P.2d 102 (Colo.App.1986).

Here, one verdict form was directed to determining the actual compensatory damages of plaintiff and the percentage negligence of plaintiff, defendant, and the nonparties. A second jury verdict form was directed only to the exemplary damages to be awarded against defendant Lira. Since the exemplary damages verdict form was only applicable to Lira and the jury determined that he was guilty of "wanton and reckless conduct," we conclude there is no basis to discount the exemplary award. Thus, the trial court's ruling to the contrary cannot stand.

II.

Defendant argues on cross-appeal that the trial court erred in refusing to grant a new trial based on juror misconduct. We disagree.

Based on an affidavit from the jury foreperson, defendant contends that the jury improperly reached a quotient verdict because the jurors followed an antecedent agreement to determine plaintiff's damages separately, to then total them collectively and finally to divide by the number of jurors to determine plaintiff's damage award. He argues that such a procedure represents a quotient verdict prohibited by Colorado case law, specifically, Edwards v. Quackenbush, 112 Colo. 337, 149 P.2d 809 (1944), and the cases cited therein.

Plaintiff argues that because evidence of a quotient verdict relates to the juror's thought processes during jury deliberation, such evidence is inadmissible under CRE 606(b). We agree with plaintiff.

In Edwards v. Quackenbush, supra, the court admitted evidence of a quotient verdict in order to impeach the verdict. However, since Edwards and the cases it relied on were decided prior to the adoption of the Colorado Rules of Evidence, Edwards does not control our interpretation of CRE 606(b). See People v. Montoya, 753 P.2d 729 (Colo.1988).

The language of CRE 606(b) is identical to Fed.R.Evid. 606(b), and since the Colorado Rules of Evidence are largely derived from the Federal Rules of Evidence, the legislative history and rationale behind the adoption of the Federal Rules of Evidence is relevant in interpreting the Colorado Rules of Evidence.

The question whether Fed.R.Evid. 606(b) permits the impeachment of a quotient verdict was specifically debated in Congress. The record of that debate indicates that Congress intended to prohibit impeachment of a verdict because it was a "quotient verdict." See Multiflex, Inc. v. Samuel Moore & Co., 709 F.2d 980 (5th Cir.1983); 3 J. Weinstein & M. Berger, Weinstein's Evidence p 606 (1990); see also Scogin v. Century Fitness, Inc., 780 F.2d 1316 (8th Cir.1985) (disallowing impeachment of jury verdict as being quotient verdict on basis it violated Fed.R.Evid. 606(b)). Historically, the federal courts did not permit impeachment of quotient verdicts. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915).

When Congress was considering Fed.R.Evid. 606(b) the American Bar Association's Committee on Minimum Standards indicated that an explicit exception to Rule 606(b) was necessary before a party could impeach a quotient verdict or a verdict by lot. The rejection of the ABA's amendment by Congress is additional evidence that Rule 606(b) does not permit impeachment of quotient verdicts. See 3 J. Weinstein & M. Berger, Weinstein's Evidence p 606 (1990); The Criminal Bar Association Project of Minimum Standards for Criminal Justice--Trial by Jury § 5.7 (1968).

We consider this analysis applicable to the Colorado rule and, thus, conclude that the trial court did not err in denying a new trial based on defendant's claim of a quotient verdict.

III.

Defendant next argues that the trial court erred in failing to grant a new trial based on juror mistake. We disagree.

Defendant submitted an affidavit in which the jury foreperson stated:

"We then decided on an amount of damages to punish defendant Joel Lira. Only one juror felt damages to punish Joel Lira were appropriate. That...