Fowler v. Boise Cascade Corp.

• Decision Date: 31 July 1991
• Docket Number: Nos. 90-1818,90-1879,s. 90-1818
• Parties: Mark A. FOWLER and Famah Fowler, Plaintiffs, Appellees, v. BOISE CASCADE CORPORATION, Defendant and Third Party Plaintiff, Appellant, v. I.M.C. OF VIRGINIA and Commercial Union Insurance Companies, Third Party Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 49

948 F.2d 49

Mark A. FOWLER and Famah Fowler, Plaintiffs, Appellees, v. BOISE CASCADE CORPORATION, Defendant and Third Party Plaintiff, Appellant, v. I.M.C. OF VIRGINIA and Commercial Union Insurance Companies,

Third Party Defendants, Appellees.

Nos. 90-1818, 90-1879.

United States Court of Appeals, First Circuit.

Heard July 31, 1991.

Decided Oct. 29, 1991.

Rehearing and Rehearing En Banc Denied Dec. 3, 1991.

James M. Bowie with whom Elizabeth G. Knox and Thompson & Bowie, Portland, Me., were on brief, for appellant.

C. Donald Briggs with whom Joseph M. Cloutier & Associates, Rockport, Me., was on brief, for appellees.

James C. Hunt with whom Frederick C. Moore, and Robinson, Kriger, McCallum & Greene, P.A., Portland, Me., were on brief, for I.M.C. of Virginia, third party defendant, appellee.

Harold J. Friedman, Portland, Me., for Commercial Union Ins. Companies, third party defendant, appellee.

Before TORRUELLA, Circuit Judge, HILL ^* and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

This is a consolidated appeal from two judgments, one in tort and the other in contract. The contract action derives from the tort action. Jurisdiction over both actions is based on diversity of citizenship. The controlling law is the substantive law of the state of Maine.

The Parties and Procedural History of Case

Defendant-appellant and third-party plaintiff Boise Cascade Corporation (Boise) is a Delaware corporation. It operates a paper mill in Rumford, Maine. Boise contracted with third-party defendant-appellee I.M.C. of Virginia (I.M.C.) to do some painting in its mill. Plaintiff-appellee Mark A. Fowler, an employee of I.M.C. fell in a hole and injured himself while working in the Boise mill. Fowler received workmen's compensation benefits from I.M.C. The benefits were paid by I.M.C.'s insurer, Commercial Insurance Companies (CUIC), also a third party defendant-appellee.

Fowler brought a tort action against Boise; liability was admitted and the jury awarded him $675,000 in damages and his wife, Famah, $50,000. The jury verdicts have been appealed by Boise.

The contract action arises from the painting contract between Boise and I.M.C. which contained an indemnity clause, an insurance procurement clause and a subrogation clause. The parties agreed in the contract that Maine law controlled. Boise sued I.M.C. and its insurer CUIC. It claimed that the indemnity and insurance procurement clauses required I.M.C. to indemnify Boise. It further claimed that the subrogation clause in the contract required I.M.C. and CUIC to provide Boise with the benefits of CUIC's worker's compensation lien and to pay Boise's attorney's fees. The district court rejected Boise's contract claims and granted summary judgment in favor of third-party defendants-appellees, I.M.C. and CUIC. Fowler v. Boise Cascade Corp., 739 F.Supp. 671 (D.Me.1990).

We affirm the jury verdicts against Boise and the district court's grant of summary judgment for I.M.C. and CUIC. We discuss first the tort action and then the contract claims.

I. THE TORT ACTION

Boise appeals the jury verdicts on the tort action on the grounds that the trial judge erred in his instructions on causation and that the award was excessive due to jury bias, prejudice or passion.

The causation issue was whether plaintiff Mark Fowler's medical condition at the time of trial was due to his fall into the hole on Boise's premises. There was testimony to the effect that Fowler suffered from a psychogenic pain disorder, (also described as somatiform pain disorder or chronic pain syndrome), that was caused by his fall into the hole on Boise's premises. There was also testimony that there was no apparent physiological basis for the pain and that Fowler's boyhood upbringing in a family with a strong work ethic created a predisposition towards a somatiform pain disorder (chronic pain syndrome). One of the witnesses, Richard Pollack, a licensed social worker, testified that Fowler's family history of a strong work ethic prevented him from taking any time off from work absent a legitimate excuse to do so. According to Pollock, Fowler's strong work ethic background and the desire for leisure time created a need for a reason to stop working, and the fall supplied such a reason.

It is Boise's position that the fall was not an event that caused or helped to cause Fowler's chronic pain syndrome but that it only provided an opportunity for this condition to become manifest. Boise does not argue that the evidence was insufficient for a finding of causation. Boise assigns as error the district court's refusal to give the following requested jury instruction.

On the other hand, it is not enough that the negligent acts complained of may constitute a series of prior events without which, as the evidence proves, that the damage would not have happened or that the negligence in question afforded only an opportunity for occasion of the injury or a mere condition of it.

The court rejected the instruction because, in its judgment, the charge correctly reflected the Maine law, and the proffered instruction would have been confusing to the jury. We agree. The Maine law court has held that "[a] party is not entitled to have a requested instruction given, even if it states the law correctly, unless it appears ... that it is not misleading, that it is not covered by the charge, and that the refusal to give it would be prejudicial." Towle v. Aube, 310 A.2d 259, 266 (Me.1973). See also Pelkey v. Canadian Pacific Ltd., 586 A.2d 1248, 1250 (Me.1991); Lambert v. Tripp, 560 A.2d 1097, 1099 (Me.1989); Schneider v. Richardson, 438 A.2d 896, 897 (Me.1981).

The court instructed the jury on causation as follows:

Although Boise Cascade has admitted [negligence] ..., in order to make their case the plaintiffs must also show that Boise Cascade's conduct caused the damages that plaintiffs are seeking to recover.

. . . . .

An injury or damage is a direct result of an act or failure to act when that act or failure to act starts an event or chain of events which inevitably leads to the injury or damage. This is an objective test....

An injury or damage is a reasonably probable consequence of an act or failure to act when that act or failure to act creates a risk that might reasonably be expected to result in such injury or damage, even though the exact nature of the injury of damage need not, itself, be foreseeable. This is a subjective test....

[A] person is also liable for negligently causing an injury or damage to another even though a physical or psychological condition makes the extent of the injury or damage greater than a reasonable person could have foreseen as a probable result of the negligence. This is true even though the negligent person could not have discovered the special physical or psychological condition of the person injured. However, a defendant is not liable for damages that were not caused by its negligence but rather were caused only by the original physical or psychological condition.

This instruction correctly reflected Maine law. See Taylor v. Hill, 464 A.2d 938, 944 n. 2 (Me.1983); Wing v. Morse, 300 A.2d 491, 495-96 (Me.1973).

We deal next with Boise's argument that the jury award was excessive. Our review is limited to a single question: does the jury award of $675,000 to Fowler and $50,000 to his wife grossly exceed the norm so as to shock the conscience? Gonzalez-Marin v. Equitable Life Assur. Soc., 845 F.2d 1140 (1st Cir.1988). We find it does not. There was a plethora of evidence from physicians and other knowledgeable witnesses that Mark Fowler had suffered a severe and debilitating injury as a result of his fall and that his wife had suffered a prolonged loss of consortium. Mark Fowler was a productive worker prior to the accident, but since the accident has been unable to perform the simplest of tasks. The jury heard the evidence and observed the plaintiff. It is not our place to substitute our judgment for that of the jury unless we find the jury acted under some bias, prejudice, or improper influence, or reached its verdict under some mistake of law or in disregard of the evidence. Currier v. Cyr, 570 A.2d 1205, 1210 (Me.1990); Phillips v. Eastern Maine Medical Center, 565 A.2d 306, 309 (Me.1989); S.H. Nevers Corp. v. Husky Hydraulics, Inc., 408 A.2d 676, 681 (Me.1979). Because none of the above conditions are present here, the verdicts shall stand.

II. THE CONTRACT ACTION

Boise asserts that I.M.C. and its insurance carrier, CUIC, are liable for the $725,000 Fowler judgments pursuant to the terms of a Fixed Sum Agreement ("Agreement") between I.M.C. and Boise. Boise alleges that I.M.C. breached its contract to provide insurance and/or indemnify Boise in accordance with the procurement, indemnity, and subrogation clauses of the Agreement.

Both Boise and I.M.C. filed motions for summary judgment. The district court held, as a matter of law, that the contested clauses do not require either I.M.C. or CUIC to indemnify Boise for the judgments in favor of the Fowlers. The court granted I.M.C.'s Motion for Summary Judgment and dismissed Boise's Motion for Summary Judgment. Boise appeals. There are three issues: (1) whether the insurance procurement clause required I.M.C. to provide Boise with general liability insurance under the particular facts of this case; (2) whether the indemnity clause obligates I.M.C. to indemnify Boise for the Fowlers' judgments; and (3) whether, under the subrogation clause, Boise was entitled to any workers' compensation lien held by I.M.C. and CIUC.

III. DISCUSSION

Our review of the district court's disposition of the motions for summary judgment is plenary. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Fed.R.Civ.P. 56(c) provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show...