Green v. Louder

• Decision Date: 27 July 2001
• Docket Number: No. 980277.,980277.
• Citation: 29 P.3d 638,2001 UT 62
• Parties: Lora M. GREEN, Plaintiff and Appellant, v. Lloyd LOUDER and Marlene Murray, Defendants and Appellee.
• Court: Utah Supreme Court

29 P.3d 638

2001 UT 62

Lora M. GREEN, Plaintiff and Appellant, v. Lloyd LOUDER and Marlene Murray, Defendants and Appellee.

No. 980277.

Supreme Court of Utah.

July 27, 2001.

Jackson Howard, Kenneth Parkinson, Leslie W. Slaugh, Provo, for plaintiff.

David N. Mortensen, R. Phil Ivie, Provo, for defendant.

DURHAM, Justice:

¶ 1 This case arises from an auto accident in which the plaintiff Lora M. Green suffered personal injuries. Green sued Marlene Murray, the driver of the vehicle in which she was a passenger, and Lloyd Louder, the driver of the other vehicle, for negligence. Green settled her claim with Murray. A jury found Louder not negligent and a judgment was entered accordingly. Green's request for a new trial was denied; therefore she appealed to this court. We affirm.

BACKGROUND

¶ 2 On July 13, 1995, Green was a passenger in a 1987 Dodge truck driven by her mother, Murray, which was heading north on SR-189 in Provo, Utah. Murray believed she was traveling on a divided highway and moved to what she thought was her left-hand lane. Actually, Murray was traveling on the wrong side of the road on a two-lane highway. Murray realized her mistake when she saw Louder's truck, towing a boat and trailer, proceeding toward her in the same lane. Murray turned to get back into her lane, but Louder, in an effort to avoid a collision in his lane, also turned into Murray's lane. Their vehicles collided head-on. The collision caused both vehicles to go off the road.

¶ 3 As a result of the accident, Green suffered a compound fracture of her left wrist and degloving¹ on her arms and legs. Despite surgery and skin grafting, Green lost function of her wrist and suffered scarring. Green also claimed the injuries of the accident accelerated the effects of pre-existing arthritis and lupus, and left her arm disabled between thirty and thirty-five percent.

¶ 4 Green filed an action for negligence against both Louder and Murray on October 12, 1995. Prior to filing suit, Green filed claims against Murray's insurance policy with Horace Mann Insurance Co., Louder's insurance policy with State Farm Insurance Co. (State Farm), and her own under-insurance policies, also with State Farm. On February 16, 1996, Green accepted $25,000 from Horace Mann—the limits of Murray's insurance policy—in return for a release relieving her mother of liability.

¶ 5 Louder then amended his answer to include a cross-claim against Murray. Louder later stipulated to a dismissal of all claims for damages against Murray, but reserved the right to apportionment of fault pursuant to the Utah Liability Reform Act.² State Farm offered Green $25,000 in settlement of her claims against Louder—who had a $50,000 policy—but made no offers on her own under-insurance policies. Eventually this matter was set for trial in January of 1998.

¶ 6 Subsequently, Green filed a complaint against State Farm alleging bad faith for failing to settle her claims. On January 6, 1998, Green moved to join her case against State Farm with this case. She argued that State Farm was the real party in interest because it had assumed liability for any verdict against Louder in this matter and also provided her under-insured coverage. The court denied this motion.

¶ 7 Two weeks before trial, Green moved to compel production of a "peace letter," in which Green alleged State Farm had unconditionally promised to pay any judgment rendered against Louder in this matter. On January 26, 1998, the first day of trial, the court reviewed the letter and held its contents were privileged work-product. Therefore, the court denied the motion to compel, but ordered that a copy of the letter be sealed and placed in the file.

¶ 8 During trial, Murray testified that the point of impact had been at the far right of her lane. However, Trooper Steven Helm, the officer who investigated the accident, testified that the skid marks for both vehicles commenced in the Louder lane. Accordingly, Helm estimated the point of impact was "somewhere close to the double yellow." In addition, Patty Ratliff, who was driving directly behind Louder at the time of the accident, testified Murray's vehicle was in Louder's lane when the accident occurred.

¶ 9 Regarding speed, Louder testified he was traveling between 35 and 40 miles per hour prior to the accident. Robert Wily, who was driving two vehicles behind Louder at the time of the accident, also testified that prior to the accident Louder had been traveling "somewhere around 35 to 40 miles an hour." Murray testified she was traveling 20 miles per hour prior to the accident. Although Green's expert, Ronald Probert, also testified Murray was traveling around 20 miles per hour prior to the accident, during his cross-examination the jury learned Probert had previously opined that the "[s]peed on the Murray vehicle was about 35 miles per hour" at impact. In addition, Greg Duvall, Louder's expert, testified "the Murray truck was traveling approximately 38 miles per hour at the moment of impact."

¶ 10 As to the cause of the accident, Louder and his spouse both testified that at the scene of the accident Murray was crying and saying "it is all my fault." The experts for both parties testified the accident occurred because Murray and Louder, trying to avoid an accident, steered toward the same lane. Probert opined "that the Murray vehicle was left of center. Mr. Louder was coming towards Provo in the opposing lane of traffic and swerved to his left when he observed the Murray vehicle in his lane of travel." Duvall testified, "the fact that they both steered to the same direction is why they had an accident."

¶ 11 On January 30, 1998, the last day of trial, the court submitted the following questions to the jury by special verdict:

1. Considering all of the evidence in this case, do you find from a preponderance of the evidence that the defendant, Lloyd Louder, was negligent as alleged by the plaintiff?

2. Considering all of the evidence in this case, do you find from a preponderance of the evidence that the negligence of the defendant, Lloyd Louder, was a proximate cause of the plaintiff's injuries?

The jury answered "no" to both questions. Accordingly, the court entered a judgment dismissing Green's action against Louder. Green moved for a new trial raising the same issues she raises on appeal. After hearing oral argument, the court denied her request.

¶ 12 On appeal, Green argues: (1) instruction number 35, which stated that the happening of the accident did not create a presumption of negligence, was an improper "unavoidable accident" instruction; (2) defendant's surrebuttal testimony was improper because it presented additional evidence and reemphasized matters already addressed by defendant in his case in chief; (3) the credibility of plaintiff's expert was improperly weakened by the exclusion of testimony about Winslam, a computer software program; (4) the testimony of defendant's expert was prejudicially bolstered by his assertion that the testimony of plaintiff's own expert confirmed his speed calculations; (5) the testimony of Officer Helm on the issue of fault was improperly admitted; (6) the "golden rule" arguments made by defense counsel during closing arguments were so improper as to require a new trial; (7) the denial of the production of the "peace letter" from State Farm to defendant was error; (8) the denial of plaintiff's motion to join State Farm was error because State Farm is the real party in interest; and (9) the cumulative effect of these errors denied her a fair trial.

STANDARD OF REVIEW

¶ 13 A district court has broad discretion in deciding whether to grant or deny a motion for a new trial. Child v. Gonda, 972 P.2d 425, 428 (Utah 1998). Because Green raises numerous issues involving different standards of review, we set forth the proper standard as we address each issue.

ANALYSIS

I. JURY INSTRUCTION NO. 35

¶ 14 Green argues it was reversible error to instruct the jury that the occurrence of the accident itself did not support the conclusion that someone had negligently caused the accident. Because jury instructions are statements of the law, "we review challenges to jury instructions under a `correctness' standard." See Child v. Gonda, 972 P.2d 425, 429 (Utah 1998) (citing Steffensen v. Smith's Mgt. Corp., 862 P.2d 1342, 1346 (Utah 1993)). Therefore, "we will not reverse a jury verdict where there is sufficient evidence in the record to support the jury's verdict on legally sound grounds ...." Cheves v. Williams, 1999 UT 86, ¶ 20, 993 P.2d 191.

¶ 15 Green questions instruction 35 which reads:

The mere fact that an accident or injury occurred does not support a conclusion that the defendant or any other party was at fault or was negligent.³

Green argues instruction 35 was an improper "unavoidable accident" instruction like the one rejected in Randle v. Allen, 862 P.2d 1329, 1334 (Utah 1993). To support his position that instruction 35 was not an unavoidable accident instruction, Louder relies on language taken from a footnote⁴ in Anderson v. Sharp, 899 P.2d 1245, 1249 (Utah Ct.App. 1995).

¶ 16 In Randle, this court disapproved of the following instruction:

In the law we recognize what we term as unavoidable or inevitable accidents. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still no one may be held liable for injuries resulting from it.

Randle, 862 P.2d at 1334. We agree with Green that the language of instruction 35 is substantially similar (although not identical) to the language of the instruction disapproved of by this court in Randle. In addition, as was the case in Randle, the instruction was given despite there being "evidence [that] clearly establishes that one or more...