Fullmer v. State Farm Ins. Co., s. 17740

• Decision Date: 31 March 1993
• Docket Number: 17743,Nos. 17740,s. 17740
• Citation: 498 N.W.2d 357
• Parties: Rita E. FULLMER, Plaintiff and Appellee, v. STATE FARM INSURANCE COMPANY, Mona Drolc, and Joyce Hamond, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 357

498 N.W.2d 357

Rita E. FULLMER, Plaintiff and Appellee, v. STATE FARM INSURANCE COMPANY, Mona Drolc, and Joyce Hamond,

Defendants and Appellants.

Nos. 17740, 17743.

Supreme Court of South Dakota.

Argued Aug. 31, 1992.

Decided March 31, 1993.

Rexford A. Hagg of Whiting, Hagg and Hagg, Gary D. Jensen of Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiff and appellee.

Curt Ireland, Rapid City, for defendants and appellants State Farm Ins. Co. and Joyce Hamond.

Ronald R. Kappelman, Rapid City, for defendant and appellant Mona Drolc.

MILLER, Chief Justice.

This action arose out of an automobile collision between defendant Joyce Hamond and plaintiff Rita Fullmer causing property damage and personal injuries to Fullmer. Fullmer later went to the office of Hamond's insurance company's claims agent, Mona Drolc, where Drolc apparently grabbed Fullmer's arm and raised it over her head. Fullmer alleged this aggravated her prior injuries. Bifurcated trials were held; the first was on the "automobile collision" claim against Hamond. The jury found Hamond was negligent and awarded Fullmer damages. Later, on the "battery claim" against Drolc and State Farm, the second jury found Drolc had committed a battery but found Drolc's actions caused no damages to Fullmer. At the conclusion of the battery trial, Fullmer moved to set aside the judgment on the automobile collision claim, which State Farm had already satisfied, and also moved for a new trial on the battery claim. The trial judge, concluding justice had not been done and that Fullmer had been "whipsawed" by inconsistent defense positions in the two separate trials, granted the motions. Defendants appeal. We affirm in part and reverse in part.

FACTS

On February 14, 1989, the car which Fullmer was driving was rear-ended by a car driven by Hamond. Hamond was covered by an insurance policy of the State Farm Insurance Company. Fullmer complained of pain in her head and pain down her back which originated in her neck. She went to Rapid City Regional Hospital's emergency room where she was examined and diagnosed by the supervising physician as having a "neck injury."

Fullmer went back to work the next day as a full-time housecleaner. When her discomfort continued, she made an appointment to see her family physician who referred her to a physical therapist. At her first therapy session, March 6, the therapist noted various problems, including Fullmer's complaints of pain in her arms and weakness in her hands. She went in for therapy every three or four days and on March 17, the therapist noticed abnormal sensations and color changes in Fullmer's hands. By March 20, the therapist noticed color changes in both of her hands as well as in her arms where she also had some numbness and swelling.

Fullmer then went to Hamond's State Farm office to meet with claims representative Drolc. During the course of this meeting Fullmer extended her left hand to show Drolc the color changes. Fullmer asserted, and a jury later found, that Drolc then reached out, without warning or consent, took hold of Fullmer's left arm and raised it in the air. Fullmer claims that as a result of Drolc's action, she suffered a new injury to her left arm and shoulder, since shortly after the incident she developed a "terrible burning" pain. Her family physician referred her to Dr. Boyer, an orthopedic surgeon, and then to Dr. Finley, a neurologist. Dr. Finley concluded that Fullmer's underlying problems had been aggravated as a result of the arm-raising incident and had led to reflex sympathetic dystrophy (RSD) in her left upper extremity. Fullmer's physical therapies continued, focusing on her shoulders and arms, though they failed to give her relief. Eventually, Dr. Finley ordered her to quit working.

Fullmer brought her automobile collision and battery claims in the same complaint. State Farm's motion to bifurcate the two claims was granted. The automobile collision claim was tried first. Two weeks prior to trial, Dr. Boyer's deposition was taken. He stated there that if Fullmer had RSD, he agreed with Dr. Finley's opinion that her RSD was not caused by the car accident. Fullmer's damage claims at this first trial were limited to: (1) property damage of approximately $500; (2) lost wages of $22 and medicals of approximately $2500; and (3) damages for her "sprained neck" and associated headaches. No claim was made for the RSD as all parties agreed the RSD claim would be left to the battery trial. The medical testimony of Dr. Finley helped establish causation for Fullmer's " 'sprained neck' and associated headaches." The jury was informed of the "arm-raising" event though the parties and the court emphasized that no claim was being made for injuries arising from that event. State Farm, providing Hamond's defense, argued that although Fullmer probably did have serious injuries, they were caused by the subsequent arm-raising event. The defense at this first trial did not call Dr. Boyer or any other medical witnesses. The jury found Hamond was negligent, returned a damage verdict of $4,504.88 and awarded Fullmer $1,760.75 for costs. Judgment was entered; State Farm later satisfied the judgment.

The battery trial ¹ began July 23, 1991. Dr. Finley testified that Fullmer's RSD is permanently painful and disabling and was caused when Drolc grabbed Fullmer's arm and raised it over her head. In its defense at this second trial, State Farm now argued that Fullmer's RSD was caused by the automobile collision. In support of this position, State Farm called an expert medical witness--Dr. Boyer. Dr. Boyer testified, contrary to his discovery deposition testimony, that he believed Fullmer did have RSD and that it was most likely caused by the car accident. ² Fullmer had not been aware prior to the battery trial that Dr. Boyer's testimony would reflect a changed opinion. The jury specifically found Drolc assaulted Fullmer, but went on to find that Drolc's "battery" caused no damages to Fullmer.

Following the jury's decision, the trial court granted Fullmer's motions to set aside the automobile collision judgment and to grant a new battery trial. The trial court found numerous grounds to support a conclusion that it had made a mistake when it bifurcated the two trials. This conclusion was supported at least in part by the trial court's conclusion that Fullmer had been "whipsawed" by inconsistent positions taken by the defense: Their assertion during the first trial that Fullmer's RSD was not caused by the car accident and their assertion at the second trial that Fullmer's RSD was caused by the car accident. Defendants appeal, raising many issues. We do not find it necessary to address all of them.

ISSUE I

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SETTING ASIDE THE AUTOMOBILE COLLISION JUDGMENT OR IN GRANTING A NEW ARM-RAISING TRIAL.

Bifurcation is appropriate "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy[.]" SDCL 15-6-42(b). The trial court has discretion under proper circumstances to order separate trials of issues or claims raised in a case. Christiansen v. Strand, 81 S.D. 187, 194, 132 N.W.2d 386, 389 (1965).

Nevertheless, the purpose of bifurcation is "to 'avoid prejudice,' not to create it." United States Gypsum Co. v. Schiavo Bros., Inc., 668 F.2d 172, 181 (3rd Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982). In response to Fullmer's motions at the end of the second trial to set aside the automobile collision judgment and to grant a new arm-raising trial, the court concluded Fullmer had been prejudiced by the bifurcation and that there had been a "serious miscarriage of justice." According to the changed testimony of Dr. Boyer, Fullmer's RSD was caused by the car accident or, according to the consistent testimony of Dr. Finley, Fullmer's RSD was caused by the arm-raising incident. The court noted that although the parties' experts agree that Fullmer suffers RSD, she has not been compensated for this injury. The trial court stated this was due to defendants' inconsistent positions at the trials: "In other words, the bifurcation Order allowed Plaintiff to be whipsawed on the issue[s] of medical causation and damages." The trial court found its bifurcation order had been a mistake and was improper. Fullmer's motions were granted. Defendants assert the trial court erred when it granted these motions.

A. SETTING ASIDE THE AUTOMOBILE COLLISION JUDGMENT

Motions to vacate judgment under SDCL 15-6-60 are in the sound discretion of the trial court and will not be overturned unless the record affirmatively shows that there has been an abuse of discretion. ³ Haggar v. Olfert, 387 N.W.2d 45, 51 (S.D.1986). The trial court may grant relief from final judgment based on mistake, surprise, newly discovered evidence and for any other reason which justifies relief. SDCL 15-6-60(b)(1), (2) & (6). Although the trial court based its decision on each of these grounds, "newly discovered evidence" provides a sufficient basis upon which to affirm the trial court.

To be granted relief from judgment on a claim of newly discovered evidence Fullmer, the moving party, must establish that

(1) The evidence was discovered after trial;

(2) [Fullmer] exercised due diligence to obtain the evidence for trial;

(3) The evidence is not merely cumulative or impeaching;

(4) The evidence is material; and

(5) The evidence is such that a new trial would probably produce a new verdict.

Haggar, 387 N.W.2d at 51. Applying the facts to each part of the test, we determine the trial court did not abuse its discretion.

(1) It is beyond dispute that Dr. Boyer changed his opinion after the automobile collision trial. (2) Dr. Boyer's discovery deposition was taken just two weeks before the automobile collision trial. Dr. Boyer admitted during cross-examination in the arm-raising trial that his opinion on Fullmer's RSD...