Frey v. Harley Davidson Motor Co., Inc.

• Decision Date: 28 May 1999
• Citation: 734 A.2d 1
• Parties: Rick E. FREY, Appellee, v. HARLEY DAVIDSON MOTOR COMPANY, INC., and Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellant. Rick E. Frey, Appellee, v. Harley Davidson Motor Company, Inc., Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellee, Appeal of Lancaster Harley Davidson, Inc. Rick E. Frey, Appellant, v. Harley Davidson Motor Company, Inc., Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellee.
• Court: Pennsylvania Superior Court

734 A.2d 1

Rick E. FREY, Appellee, v. HARLEY DAVIDSON MOTOR COMPANY, INC., and Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellant.

Rick E. Frey, Appellee, v. Harley Davidson Motor Company, Inc., Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellee,

Appeal of Lancaster Harley Davidson, Inc.

Rick E. Frey, Appellant, v. Harley Davidson Motor Company, Inc., Lancaster Harley Davidson Inc., Appellees, v. Donald Zimmerman, Appellee.

Superior Court of Pennsylvania.

Argued March 10, 1998.

Filed May 28, 1999.

Reargument Denied August 10, 1999.

Charles W. Craven, Philadelphia, for Zimmerman.

Joseph Roda, Lancaster, for Frey.

Daniel H. Shertzer, Lancaster, for Lancaster Harley Davidson, Inc.

Before TAMILIA, ORIE MELVIN and BECK, JJ.

TAMILIA, J.:

¶ 1 This action involves consolidated appeals from the judgment entered on February 6, 1997. Appellee/cross-appellant, Rick E. Frey, was seriously injured in a motorcycle accident, and the jury found his injuries resulted from both the negligence of the other driver and the defective condition of Frey's used Harley-Davidson motorcycle.

¶ 2 While this case encompasses complex legal issues, the facts are straightforward. On June 19, 1987, at approximately 4:30 p.m., Frey and the driver of another vehicle, Donald Zimmerman, were involved in an accident at the intersection of Route 322 and Poplar Road in Honeybrook, Chester County, Pennsylvania. As Zimmerman was stopped at the intersection, Frey came over a rise in the road and continued driving his motorcycle west on Route 322. Zimmerman apparently did not see Frey and proceeded to make a left turn from Poplar Road onto 322 east. Frey was subsequently unable to avoid Zimmerman's car and collided with it, causing severe injuries to himself.

¶ 3 On appeal, appellant, Lancaster Harley Davidson, Inc. (LHD), claims Frey failed to produce sufficient evidence that the motorcycle's defective condition was a cause of his injuries, that Frey assumed the risk of injury because he used the motorcycle after knowing of its defective condition, that social policy does not support the application of strict liability to the seller of a used motorcycle and that Frey failed to produce sufficient evidence the defect was present in the motorcycle at the time it was sold. In addition, LHD claims the trial court erred (1) in admitting testimony concerning LHD's alleged practice of disconnecting jumper wires on the motorcycles it sold, (2) in improperly excluding Frey's allegedly inconsistent admissions in a related federal action, (3) in preventing LHD from showing Frey's own actions were a cause of his injuries, (4) in entering summary judgment in favor of Harley Davidson Motor Co., Inc. (HDMC), and (5) in refusing to grant a new trial when Frey failed to disclose his settlement agreement with Zimmerman.

¶ 4 Appellee/cross-appellant Zimmerman argues the jury's verdict is not logically supported by the evidence and he is, therefore, entitled to judgment n.o.v. or a new trial. He also claims the trial court erred in granting summary judgment in favor of HDMC and contends his liability is limited to the $25,000 policy limit, which was specified in his agreement with Frey. Finally and in the alternative, Zimmerman maintains the judgment should be amended to reflect his "true financial exposure."

¶ 5 Although Frey does not challenge the jury's findings, he does contend the trial court erred (1) in refusing to hold LHD and Zimmerman jointly and severally liable for delay damages, (2) in reducing delay damages due to delays allegedly caused by Frey and (3) in awarding attorneys' fees and costs due to Frey's failure to disclose his agreement with Zimmerman.

¶ 6 At the time of the aforementioned accident, Frey was driving a 1977 Harley-Davidson FLH motorcycle, which he had purchased from LHD in June 1985. The original versions of this motorcycle had two "on" ignition positions, with the first "on" position activating the motorcycle's ignition and the second "on" position activating the ignition and the headlamp. Beginning in 1975, HDMC added a jumper wire to its motorcycles, causing the headlamp to come on when the ignition switch was turned to either position. Frey claimed his motorcycle was in a defective condition because the jumper wire had been cut or disconnected, causing the motorcycle to be less conspicuous, and hence more dangerous, during daytime operation.

¶ 7 On June 19, 1989, Frey initiated the instant action against LHD¹ and brought suit against HDMC in federal district court. Frey filed a complaint in this matter on February 26, 1991, and later filed an amended and second amended complaint. LHD filed an answer and new matter in which it joined HDMC and Zimmerman as additional defendants. Although LHD's answer and new matter included no counts against Zimmerman, it did include him in the caption, and Zimmerman subsequently filed an answer.²,³ The case then proceeded forward, and by Order dated January 20, 1992, the trial court directed all discovery be completed within sixty (60) days. LHD then filed a motion to compel Frey to answer deposition questions, a motion to compel physical examination of Zimmerman and a motion for extension of time to complete discovery. The trial court granted both the motion to compel Frey to answer deposition questions and the motion to compel Zimmerman to appear for physical examination, and it thereafter extended the discovery deadline for an additional ninety (90) days.

¶ 8 On May 5, 1992, HDMC filed a motion for discontinuance based on the pro-rata settlement agreement it had reached with Frey.⁴ HDMC then later filed a motion for summary judgment based on the same release agreement. On July 22, 1992, the trial court granted HDMC's motion for discontinuance, directing that HDMC remain a party only for purposes of apportioning liability. However, by Order entered February 10, 1994, the trial court granted HDMC's motion for summary judgment and struck HDMC as a party, finding "no evidence in any of the records or documents that I examined which show any responsibility on them anyway." (Record # 160, 2/10/94, at ¶ 1.)

¶ 9 Prior to trial, the parties filed several motions in limine. In its February 10, 1994 Order, the trial court granted Frey's motion to preclude testimony regarding "`negligence', or words to that effect," but it allowed LHD's expert to "testify as to the mechanics of the accident." (Record # 160, 2/10/94, at ¶ 3.) The court also denied LHD's motion to preclude testimony concerning its practice of cutting jumper wires. Id. at ¶ 4. On October 6, 1995, Frey filed another motion in limine, seeking to preclude reference to his settlement with HDMC. Although the record is unclear, the trial court presumably granted this motion.

¶ 10 From October 16 to 20, 1995, the trial court held a jury trial. The jury found the motorcycle was defective when sold to Frey, the defective condition was a substantial factor in causing the accident and Frey had not assumed the risk. It also determined Zimmerman was negligent and his negligence was a substantial factor in causing the accident. Finally, the jury calculated Frey's total damages to be $750,000, assigned LHD liability for 55% of those damages and held Zimmerman responsible for the remaining 45%.

¶ 11 Following trial, Frey filed a motion for delay damages and later, exceptions to assessment of delay damages. LHD and Zimmerman both filed motions for post-trial relief. Thereafter, the trial court granted LHD leave to file an additional post-trial motion based on a previously undisclosed, non pro-rata release agreement between Frey and Zimmerman.⁵ The agreement provided as follows:

This will confirm our agreement under which, in return for Plaintiffs' agreeing not to pursue any judgment against Mr. Zimmerman in excess of his insurance coverage of $25,000, Mr. Zimmerman (as Additional Defendant) will not contend that Plaintiff was at fault in any way in connection with the accident, nor seek a jury charge on comparative fault.

(See Record # 224, Exhibit "B" to Affidavit to Supplement Record.) On December 31, 1996, the trial court denied Frey's exceptions to assessment of delay damages and awarded delay damages in the amount of one hundred and fifty-seven thousand, six hundred and eighty-five dollars and twenty cents ($157,685.20) against LHD and eighty-seven thousand, six hundred and twenty dollars and fifty-six cents ($87,620.56) against Zimmerman. The court also denied LHD and Zimmerman's post-trial motions, but it ordered Frey to pay LHD $250 for attorneys' fees and costs. In doing so, the court found Frey had failed to provide complete answers in discovery and had thereby failed to disclose his agreement with Zimmerman. On February 25, 1997, Zimmerman filed a motion to amend judgment, which the trial court also denied. LHD, Zimmerman and Frey all filed notices of appeal.

¶ 12 On appeal, LHD first claims Frey failed to produce sufficient evidence that his motorcycle's "inconspicuity" was a cause of the accident. Zimmerman testified that upon stopping at the intersection, he waited for traffic to pass and then looked left, looked right, looked left again and then proceeded (N.T., 10/18/95, at 277-278). Zimmerman further testified Frey was already coming down the rise or crest of the hill when Zimmerman first saw him (N.T. at 283). By that time, however, Zimmerman's car was in the intersection and a collision was imminent (N.T. at 278, 283.) Given the above testimony and the expert testimony on visibility conspicuity, the jury reasonably could have made the necessary inferences; Frey, therefore, presented sufficient evidence that the motorcycle's inconspicuity contributed to his accident.

¶ 13 LHD next contends Frey assumed the risk of injury by using the motorcycle after he knew of its defective condition. We agree. While Frey maintains "the question of whether a plaintiff assumed the risk of...