Freed v. Salas

• Decision Date: 01 December 2009
• Docket Number: Docket No. 283317.
• Parties: FREED v. SALAS.
• Court: Court of Appeal of Michigan — District of US

780 N.W.2d 844

286 Mich. App. 300

FREED v. SALAS.

Docket No. 283317.

Court of Appeals of Michigan.

Submitted June 9, 2009, at Detroit.

Decided December 1, 2009, at 9:00 a.m.

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Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by Victor S. Valenti), Southfield, for plaintiff.

Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by Linda M. Garbarino), Detroit, for Kimberly J. Salas and Healthlink Medical Transportation Services, Inc.

John P. Jacobs, P.C. (by John P. Jacobs), Detroit, for Waste Management of Michigan, Inc.

Before: FITZGERALD, P.J., and TALBOT and SHAPIRO, JJ.

SHAPIRO, J.

In this vehicle negligence and wrongful death action, defendant Waste Management of Michigan, Inc., appeals as of right a judgment awarding plaintiff Karl Freed, as personal representative of the estate of Bretton J. Freed, deceased, $6,529,353.70 from Waste Management. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This action arose from the death of 35-year-old Bretton Freed. Freed, already a spastic quadriplegic from an accident in April 1987, when he was 18 years old, was being transported from Oakwood Annapolis Hospital, where he had been treated for pneumonia or urosepsis, back to his fulltime care facility, Special Tree Rehabilitation, in an ambulance owned by defendant Healthlink Medical Transportation Services, Inc., and driven by defendant Kimberly Salas. Although the ambulance was not operating in an emergency capacity and had no lights or sirens activated, Salas ran a stop sign and the ambulance was struck broadside in a "T-bone" collision by one of defendant Waste Management's garbage trucks weighing about 70,000 pounds. The garbage truck was driven by defendant William Whitty. Approximately four hours later, Freed died at University of Michigan Hospital from injuries sustained in the accident.

On the second day of trial, before opening statements, plaintiff requested dismissal without prejudice of the two drivers, Salas and Whitty, as "named individual defendants leaving their corporate employers in, ... with the understanding that, that, obviously in no way waives an agency/principal relationship" and that "both employers would be vicariously liable, if in fact negligence is found by the jury." Healthlink's counsel stipulated regarding dismissal with prejudice as to Salas, but counsel for Whitty and his employer, Waste Management, objected to dismissal of Whitty, unless it was with prejudice. Accordingly, trial commenced with Healthlink, Waste Management, and Whitty as defendants; Salas was dismissed.

Healthlink's counsel then disclosed "to the Court and all counsel of record" that Salas and Healthlink had entered into a "high-low" agreement and presented an unsigned copy to show its terms. The agreement provided that Salas would be dismissed and Healthlink would continue to be liable for her actions; that Salas would admit negligence and that her negligence was a proximate cause of Freed's death; that plaintiff would receive no less than $900,000 but no more than $1,000,000 from Healthlink; and that Healthlink was remaining in the case to argue the nature and extent of damages. Plaintiff's counsel noted that Healthlink's insurance policy had a coverage limit of $1,000,000, that there was no excess coverage, and that the case had been evaluated at $900,000.00 with regard to Healthlink and Salas. Plaintiff's counsel moved that the existence of the agreement not be revealed to the jury and Healthlink's counsel concurred. No position on the request was offered by counsel for Waste Management and Whitty.

At trial, the disputed issues appear to have been whether the garbage truck was being operated in excess of the speed limit or a reasonable speed, what percentage of fault to assign to the respective defendants, and whether Freed could feel pain or have knowledge of his injuries or impending death.

Before closing arguments, plaintiff's counsel again raised the issue of dismissing Whitty, but not Waste Management, stating:

In my complaint I alleged, not only that Waste Management was responsible for Mr. Whitty's driving under the doctrine of respondeat superior, but also I specifically pled the owner's liability statute and during the course of discovery, Waste Management, of course, agreed and admitted that Mr. Whitty was driving in the course and scope of his employment with the expressed permission of Waste Management to drive a garbage truck.

So, unless there is some reason that they are now changing their position at trial, which I don't think they can, we could move to dismiss Mr. Whitty as a defendant. ...

Counsel for Whitty and Waste Management indicated he had no objection "provided that it is with prejudice." Plaintiff's counsel stated that a dismissal with prejudice was acceptable "as long as I have, I would like an admission from Waste Management that they are not asserting anything at all to the express —." At this point, however, the trial court cut plaintiff's counsel off and stated, "You don't need it," and told the bailiff, "You can bring in the jury." Thereafter, an order was entered dismissing Whitty with prejudice.

The jury ultimately found both Healthlink and Waste Management negligent, assigned fault at 55 percent and 45 percent, respectively, and awarded a total of $14 million to plaintiff resulting in an award of $6,529,353.70¹ against Waste Management. Waste Management then filed a multitude of postverdict and postjudgment motions seeking a new trial and a judgment notwithstanding the verdict (JNOV) on the basis of the same grounds now argued on appeal, all of which were denied.

II. ANALYSIS

A. RES JUDICATA

Waste Management first argues that the trial court erred by denying its motion for JNOV because plaintiff's dismissal of Whitty with prejudice should have resulted in the dismissal with prejudice of Waste Management on the basis of res judicata principles. We disagree.

First, we conclude that Waste Management waived this issue. At the time that the parties discussed Whitty's dismissal, Waste Management never suggested that Whitty's dismissal automatically resulted in its dismissal. Waste Management also never objected to the jury instructions that stated that the jury was to decide Waste Management's negligence; in fact, it specifically indicated satisfaction with the jury verdict form. If Waste Management believed that dismissal of Whitty resulted in Waste Management also being dismissed as a matter of law, it should have objected at the time of Whitty's dismissal, before the jury returned a verdict. In Al-Shimmari v. Detroit Med. Ctr., 477 Mich. 280, 294-295, 731 N.W.2d 29 (2007), on which Waste Management relies, immediately after the trial court granted summary disposition to the physician, the hospital moved for summary disposition alleging that its dismissal was required as a result of the physician's dismissal. Id. at 286, 731 N.W.2d 29. Having failed to do likewise, Waste Management waived this argument. See Phinney v. Perlmutter, 222 Mich.App. 513, 537, 564 N.W.2d 532 (1997) (stipulation to jury verdict form waived argument because "error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence").

Moreover, even at the hearing regarding the order dismissing Whitty, plaintiff's counsel stated that "we're concerned about an argument by defendant on appeal that the dismissal of Whitty, i.e., the agent, relieves the principal, i.e. Waste Management, from any responsibility. Now we have it under ownership liability as well but that's what our concern is." Waste Management again stood mute. If it believed that Whitty's dismissal precluded the claim against Waste Management, it should have so moved immediately after the trial court signed the order. It did not, however. Instead, it attempted to harbor this issue as a kind of appellate parachute; something this Court has long found impermissible. Marshall Lasser, PC v. George, 252 Mich.App. 104, 109, 651 N.W.2d 158 (2002). Accordingly, Waste Management has waived this issue.

However, because this issue involves a question of law and the necessary facts have been presented, we will address the merits of Waste Management's argument. See Laurel Woods Apartments v. Roumayah, 274 Mich.App. 631, 640, 734 N.W.2d 217 (2007).

Plaintiff argued that Waste Management was liable for any negligence by Whitty "based on the doctrine of Respondeat Superior as well as the Owner's Liability Act § MCL 257.401." MCL 257.401(1) provides:

This section shall not be construed to limit the right of a person to bring a civil action for damages for injuries to either person or property resulting from a violation of this act by the owner or operator of a motor vehicle or his or her agent or servant. The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family.

Plaintiff argues that this statute provides that recovery may be had against the owner of the vehicle regardless of whether the driver of the vehicle has been dismissed.

Initially, the liability of owners was based on respondeat superior. In Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65 (1948), the plaintiff's decedent was struck by an automobile owned by the defendant. The plaintiff predicated his right to recover "solely on the statute which imposes liability upon the owner of a motor vehicle for negligence of...