Keener v. Jeld-Wen, Inc.
| Decision Date | 02 April 2008 |
| Docket Number | No. D049471.,D049471. |
| Citation | 161 Cal.App.4th 848,75 Cal.Rptr.3d 61 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Theresa KEENER et al., Plaintiffs and Respondents, v. JELD-WEN, INC. et al., Defendants and Appellants. |
McAtee Harmeyer, Jeff G. Harmeyer and Greg A. McAtee, San Diego, for Defendants and Appellants.
Reed Smith, Paul D. Fogel, Dennis Peter Maio, San Francisco; The Zucker Law Firm, Andrew J. Zucker, Riverside; The Basile Law Firm and Jude Basile for Plaintiffs and Respondents.
In this wrongful death action arising from a motorcycle and truck collision, the surviving plaintiff Keener family sued the other driver involved in the accident and his employer (respectively, defendants and appellants Hector Solis and Jeld-Wen, Inc., dba Summit Window and Patio Door ("Jeld-Wen"; sometimes collectively defendants).1 After a three-week jury trial, plaintiffs prevailed, obtaining a damages award against defendants of $3,952,000 (representing an 80 percent fault allocation to defendants pursuant to a special verdict in nine parts that answered 16 specific questions). An extensive new trial motion was denied, judgment was entered, and defendants appeal. (Code Civ. Proc., § 657; all further statutory references are to the Code of Civil Procedure unless otherwise noted.)
Defendants chiefly argue that prejudicial error occurred when the verdict was taken, polling was conducted, and certain crucial questions and answers were omitted, resulting in a special verdict that was fatally defective for lack of sufficient votes to support the jury's conclusions on the 80/20 percent apportionment of fault (special verdict no. 9). Defendants also contend the trial court incorrectly allowed plaintiffs' counsel to make numerous prejudicial references in argument to Jeld-Wen's status as the employer of the driver Solis, even though only the conduct of Solis was at issue. Defendants base the latter argument upon their interpretation of this court's prior opinion issued in this same matter, Jeld-Wen Inc. v. Superior Court, (2005) 131 Cal.App.4th 853, 32 Cal. Rptr.3d 351 (Jeld-Wen) (our prior opinion). There, we upheld Jeld-Wen's challenges to a summary adjudication ruling regarding the effect of an admission by Jeld-Wen, as an employer, of vicarious liability for the acts of its employee, Solis. At trial in the present proceeding, the court implemented that decision through an in limine ruling that restricted the type of references to the role of Jeld-Wen, as the employer, that could be brought before the jury in attempting to prove Solis was driving negligently at the time of the accident; however, defendants contend the trial court did not go far enough in its ruling and prejudicial argument and innuendo the company itself was at fault were the results. Defendants further argue there were several prejudicial instructional errors, and prejudicial jury misconduct occurred in several respects.
In resolving the arguments on appeal, we first address the proper scope of the direction given by the prior opinion in this case, regarding the role of Jeld-Wen at trial during the presentation of evidence and argument. We then turn to defendants' challenges to the validity of the special verdict regarding the apportionment of liability, and will explain that the verdict was incomplete, requiring us to reverse the judgment and remand for a limited new trial on the sole issue of apportionment of fault. For the guidance of the trial court, we also resolve the current claims of instructional error and alleged jury misconduct, and have found that no prejudicial error occurred, such that the remaining eight special verdicts are well supported by the record, and the new trial must go forward from that point.
The plaintiffs' husband and father E. Scott Keener (referred to here as Keener or decedent), was a longtime motorcycle rider. On July 19, 2002, he was 47 years old, weighed about 210 lbs., and worked as a project manager at a construction firm. He went to work in the morning and then, with a coworker, to a late lunch that included two cocktails. About two hours later, about 4:00 pm, he left for home on his motorcycle and approached the intersection of Winchester Road (the same as State Highway 79, running north-south, with a speed limit of 65 miles per hour) and Willows Road, which ran east-west and had stop signs at the highway.
At that time, Jeld-Wen's employee, Solis, was driving a company-leased 34-foot truck, carrying out his duties of delivering windows to residential construction development projects. Solis, who had only a third grade education and spoke mainly Spanish, held a driver's license which enabled him to legally drive this type of truck, and he had also driven one for a previous employer. He often drove pickup trucks for Jeld-Wen, but had been driving this larger type of truck off and on for a period of approximately six months. He had been working since 6:00 a.m. that day and recently had been working over 10 hours a day.
That day, Solis drove up to and stopped at the stop sign at this intersection. As Keener rounded a curve, going toward the intersection, Solis pulled out to make a left turn onto one of the three southbound lanes of Winchester Road. Accident reconstructionists later concluded that Keener was driving about 65-70 miles per hour and would have seen the truck turning between 465-600 feet or about five or six seconds away. One or two seconds before impact, he braked but collided with the truck and died at the scene. A witness to the crash talked to Solis at the scene and said he seemed to be very remorseful and might have said in Spanish that he did not see the motorcycle, although the witness was not sure he understood what Solis was saying.
Plaintiffs filed a wrongful death complaint which encompassed three theories of liability against defendants: negligence, negligence per se, and negligent entrustment of a vehicle. Numerous motion proceedings were held, culminating in the issuance of our prior opinion, in which we analyzed the differences among these various theories of liability with respect to the various defendants, including the lessor of the truck, the employer, and the employee, and also with regard to evidentiary considerations arising from those employment relationships.
During discovery, plaintiffs learned that in addition to the large truck involved in the incident, Solis usually drove pickup trucks for Summit, and while doing so, he had had three property damage collisions on the job in 1998, 2000, and 2002 (two in parking lots and once on the freeway). There was no evidence produced indicating that Solis was incompetent, ill, or otherwise unfit to drive the truck on the date of the incident, and the results of a blood test taken immediately after the accident showed no alcohol or drugs in Solis's system at the time. Blood tests of the decedent showed that he had approximately .03 percent alcohol level in his blood, as well as traces of Valium and its metabolic byproducts at therapeutic levels.
After the accident, plaintiffs allowed the motorcycle to be disassembled before it could be inspected by defendants, and also destroyed the substandard leather helmet that decedent was wearing at the time of the accident. Before trial, the court issued evidentiary and issue sanctions that precluded plaintiffs from introducing any expert or other evidence based upon the examination and inspection of the motorcycle before it was disassembled. Plaintiffs were also ordered not to oppose any claims or defenses by defendant "regarding the decedent's use of an illegal non-DOT approved helmet."
In the prior opinion, as briefly summarized here, we explained-that defendant Jeld-Wen, as an employer, had made a binding pretrial admission that Solis, its employee, was acting in the course and scope of his employment at the time of the accident, which had the effect of an admission to vicarious liability under the doctrine of respondeat superior for any alleged and proven employee negligence. Under those circumstances, the negligent entrustment theory against Jeld-Wen was deemed to be essentially superfluous to the basic cause of action for damages for negligence, and we decided that it could not be separately pursued at trial by plaintiffs. We reached those conclusions under the authority of Armenia v. Churchill (1954) 42 Cal.2d 448, 457-458, 267 P.2d 303 (Armenta), and we reasoned that the requirements of Evidence Code section 1104 must be applied to avoid prejudicial evidentiary problems that might otherwise arise about admissibility of evidence of the employee's prior motor vehicle accidents, as known to the employer (even though the same evidence would ordinarily not be admissible to prove such negligence on a particular occasion). (See part I, post.)
Following the return of the remittitur, the trial court entered an order granting summary adjudication on the negligent entrustment theory, as directed. Before trial, plaintiffs dismissed the action as to the truck leasing company and three public entities involved in designing or maintaining the roadways.
Numerous in limine motions brought by each side were resolved at the outset of trial. Defendants' first request was that pursuant to the authority of our prior opinion, plaintiffs should be precluded from making any references to Jeld-Wen's status as a party defendant in the action, on the ground that the jury would not be required to make any factual findings about Jeld-Wen, but only about the actions of its employee, Solis. Plaintiffs opposed the motion, contending that any identification of Jeld-Wen as the employer would not amount to "evidence." The trial court denied the motion, stating that plaintiffs would be allowed to tell the jury that Solis was...
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