Johnson by Johnson v. General Motors Corp.

• Citation: 438 S.E.2d 28,190 W.Va. 236
• Decision Date: 23 November 1993
• Docket Number: No. 21611,21611
• Court: Supreme Court of West Virginia
• Parties: Gregory F. JOHNSON, A Minor, By Karen C. JOHNSON, His Next Friend, Plaintiff Below, Appellant, v. GENERAL MOTORS CORPORATION, Defendant Below, Appellee. Andrew J. JOHNSON, Plaintiff Below, Appellant, v. GENERAL MOTORS CORPORATION, Defendant Below, Appellee.

Page 28

438 S.E.2d 28

190 W.Va. 236

Gregory F. JOHNSON, A Minor, By Karen C. JOHNSON, His Next

Friend, Plaintiff Below, Appellant, v. GENERAL MOTORS CORPORATION, Defendant Below, Appellee.

Andrew J. JOHNSON, Plaintiff Below, Appellant, v. GENERAL MOTORS CORPORATION, Defendant Below, Appellee.

No. 21611.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1993.

Decided Nov. 23, 1993.

Syllabus by the Court

1. "In West Virginia, to recover on a theory of crashworthiness against the manufacturer of a motor vehicle, it is necessary only to show that a defect in the vehicle's design was a factor in causing some aspect of the plaintiff's harm. Once the plaintiff has made this prima facie showing, the manufacturer can then limit its liability if it can show that the plaintiff's injuries are capable of apportionment between the first and second collisions; therefore, the burden is upon the manufacturer to make the allocation." Syl. pt. 2, Blankenship v. General Motors Corp., 185 W.Va. 350, 406 S.E.2d 781 (1991).

2. When a plaintiff seeks to recover damages on a theory of crashworthiness against the manufacturer of a motor vehicle, and the manufacturer requests that the jury apportion the damages between the first and second collisions, and the jury does so, the prior settlements between the plaintiff and the other defendants will not be set-off from the jury verdict.

3. "The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party." Syl. pt. 7, Ratlief v. Yokum, 167 W.Va. 779, 280 S.E.2d 584 (1981).

4. The collateral source rule operates to preclude the offsetting of uninsured or underinsured benefits since the benefits are the result of a contractual arrangement which is independent of the tortfeasor; therefore, we overrule syllabus point 1 of Cox v. Turner, 157 W.Va. 802, 207 S.E.2d 152 (1974) which held that uninsured motorist benefits were not a collateral source under the then existing statutory scheme.

5. "Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues." Syl. pt. 6, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

6. "When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." Syl. pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958).

7. " 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syllabus point 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syl. pt. 3, McNeely v. Frich, 187 W.Va. 26, 415 S.E.2d 267 (1992).

8. " ' "Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syl. pt. 12, Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

9. "An expert may base his opinion on a professional treatise or publication, but must first show the authoritative nature of the work." Syl. pt. 4, Ventura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).

10. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983)." Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

11. " 'The allowance of a view by a jury is within the discretion of the trial court, and its refusal is not ground for reversal unless it is clearly manifest that a view was necessary to a just decision, and that the refusal operated to the injury of the party asking it.' Point 4, Syllabus, Compton v. The County Court of Marshall County, 83 W.Va. 745 [99 S.E. 85 (1919) ]." Syl. pt. 4, Daugherty v. Baltimore & Ohio R.R. Co., 135 W.Va. 688, 64 S.E.2d 231 (1951).

John Preston Bailey, Cheryl Dean Riley, Bailey & Riley, L.C., Wheeling, for appellants.

James D. Lamp, Kurt E. Entsminger, Lamp, O'Dell, Bartram & Entsminger, Huntington, E. Thom Rumberger, Debra K. Wilkinson, Rumberger, Kirk & Caldwell, Orlando, FL, for appellee.

McHUGH, Justice:

This case is before the Court upon the appeal of Andrew J. Johnson and Gregory F. Johnson, a minor, by Karen C. Johnson, his next friend, the plaintiffs below, from the September 25, 1992 order of the Circuit Court of Marshall County which granted set-offs of a prior settlement against a judgment in a product liability case. The defendant below, General Motors Corporation (hereinafter GMC), has cross-assignments of error from the August 11, 1992 jury verdict in the product liability case. For reasons set forth below, we affirm, in part, and reverse, in part, the circuit court's order.

I.

Gregory and Andrew Johnson were injured in a two-car accident on March 12, 1988, which occurred on Route 2 in Marshall County. At the time of the accident the boys were riding in the back seat of a 1978 Oldsmobile which was being driven by their father. The accident occurred when a MG convertible, driven by Bradley Bland, crossed the center line and hit the Johnsons' car head on. Both drivers were killed. The boys' mother, who was a passenger in the front seat of the 1978 Oldsmobile, was also injured.

Gregory and Andrew contend that their injuries were more severe because of the lap-only belts they had on than the injuries would have been had the 1978 Oldsmobile been equipped with a lap and shoulder restraint system in the rear seat. Andrew contends that his broken teeth, broken nose, and blow-out fracture of his left eye occurred when he jackknifed over his lap belt and hit his head. Gregory contends that his lap belt severed his stomach muscles, sliced through his large and small intestines and fractured his spine. Gregory is confined to a wheelchair for the most part and has a colostomy.

Gregory and Andrew filed a product liability action against the Estate of Bradley Bland, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) (the Johnson's underinsurance carrier), GMC, and others. Before the trial, the Johnsons received a settlement from the liability insurer for Bradley Bland. The Johnsons also received a settlement from State Farm, their underinsurance carrier, before the trial.

The Johnsons proceeded to trial with their crashworthiness case on three theories: strict liability, negligence, and implied warranty. The Johnsons argued that the lap-only belts were defective since the lap/shoulder belts were more effective and that GMC knew of this defect when the 1978 Oldsmobile was manufactured. The Johnsons also alleged that GMC failed to warn the car owners of the defect.

On August 11, 1992, the jury returned a verdict for the Johnsons under the strict liability theory and the negligence theory. Gregory was awarded $3,162,500.00, and Andrew was awarded $45,000.00. The trial court, however, set-off from the verdict the settlements the Johnsons received from the Estate of Bradley Bland and State Farm. After the set-off, Gregory received $2,912,500.00, and Andrew received $0. ¹

It is the set-off which the Johnsons appeal. GMC has cross-assignments of error regarding the product liability trial.

II. The Johnsons' Assignments of Error

First, we will address the Johnsons' two assignments of error regarding the set-off from the jury verdict. For reasons set forth below, we find that the trial court erred when allowing the prior settlements from State Farm and the Estate of Bradley Bland to be set-off against the jury verdict.

A.

The Johnsons' first assignment of error is that the trial court erred by allowing the prior settlements from the Estate of Bradley Bland and State Farm to be set-off against a "crashworthiness" judgment, which is, by its own terms, not a complete judgment. We find that the trial court did err when it set-off the settlements from the Estate of Bradley Bland and State Farm.

However, before addressing the set-off issue we first need to discuss the history of the crashworthiness doctrine. The doctrine is complex and has left courts divided in how it is to be applied. A crashworthiness case is a case in which there are two collisions.

In the first phase of the accident, the plaintiff's automobile collides with another automobile or with a stationary object. Most of the property damage results from the first collision, but the occupants of the vehicle usually sustain little or no injury at this stage. Personal injuries occur most frequently in the second collision, in which the occupants are thrown against or collide with some part of their automobile. Courts will hold the manufacturer liable for the plaintiff's loss in the second collision only if defective design of the automobile caused or exacerbated the plaintiff's injury.

Note, Apportionment of Damages in the "Second Collision" Case, 63 Va.L.Rev. 475, 476 (1977) (footnote omitted).

The crashworthiness...