Kubista v. Romaine

• Decision Date: 29 April 1976
• Docket Number: No. 43926,43926
• Citation: 87 Wn.2d 62,549 P.2d 491
• Parties: Raymond W. KUBISTA and Kathleen Kubista, husband and wife, Respondents, v. Paul ROMAINE and Jane Doe Romaine, husband and wife, Appellants.
• Court: Washington Supreme Court

Page 62

87 Wn.2d 62

549 P.2d 491

Raymond W. KUBISTA and Kathleen Kubista, husband and wife, Respondents, v. Paul ROMAINE and Jane Doe Romaine, husband and wife, Appellants.

No. 43926.

Supreme Court of Washington, En Banc.

April 29, 1976.

John A. Rorem, Tacoma, for appellants.

F. Ross Burgess, Tacoma, for respondents.

HOROWITZ, Associate Justice.

Plaintiff Raymond Kubista, after a jury trial, received verdict and judgment for $25,000 against defendant Paul Romaine for the former's serious back injuries caused by the latter's negligence. Plaintiff contends this award is inadequate and appeals.

The principal assigned error is the trial court's rejection of plaintiff's offer to prove statements made to plaintiff by an adjuster for defendant's insurance carrier in charge of the litigation against defendant policyholder. The Court of Appeals, Division II, in Kubista v. Romaine, 14 Wash.App. 58, 538 P.2d 812 (1975), held the trial court committed prejudicial error in rejecting the offer; reversed the trial court by a two to one decision and remanded the case for a new trial. Defendant appeals the decision to this court pursuant to CAROA 50(e). We affirm the decision of the Court of Appeals.

The facts are more fully set out in the opinion of the Court of Appeals. Briefly summarized the facts are these. On June 22, 1970, plaintiff was involved in a minor traffic accident caused by defendant's negligence. Plaintiff suffered serious damage to his back. On that account he was later advised by his orthopedic surgeon to leave his job as a shipfitter and engage in another occupation.

Plaintiff then considered either finding lesser paying work which he could physically perform or going to school to learn a new trade. Plaintiff claims that at this time the adjuster for defendant's insurance company, handling the claim, told him or encouraged him to go to school and promised the insurance company would 'take care of him.' Plaintiff, in reliance on the insurance company's encouragement and promise did enter school and accordingly did not seek employment. The insurance company paid his tuition at school for one quarter until his tuition was paid by the state as part of a vocational rehabilitation program. The company also paid plaintiff the amount of his pay as a shipfitter until March 1973, when settlement negotiations broke down and plaintiff rejected a final settlement offer from the insurance company.

Plaintiff filed suit in April 1973. In his amended complaint he claimed general damages, including reduced earning capacity in the amount of $250,000, lost wages to July 1, 1973, in the amount of $23,884.40, and medical expenses incurred. In October 1973 plaintiff was granted his motion for summary judgment on the issue of defendant's liability. Trial on the issue of damages later followed.

At the outset of the trial defendant made a motion in limine to exclude any testimony concerning the insurance adjuster's encouragements to plaintiff to attend school, and the alleged promise to 'take care of him' if he did so. Plaintiff's affidavit in opposition to the motion explained the testimony sought to be excluded was necessary to support his claim for lost wages. The affidavit states in part:

I have subpoenaed HOWARD J. BOLLERUD (the insurance adjuster) and the reason being that there is a claim for lost wages and defendants, I anticipate, will try to show that Mr. Kubista did not try to mitigate his lost wages and testimony will be that of encouragement and recommendations to Mr. Kubista by Mr. Bollerud on behalf of the insurance company . . .

The trial court ruled the testimony irrelevant and prejudicial to defendant. He further ruled that no mention should be made of insurance or the insurance adjuster in the voir dire, the opening statement, and in any of plaintiff's direct testimony. However, the court stated his ruling was tentative, that if defendant's case at any time raised an issue upon which the adjuster's testimony might be relevant, the court would make another determination.

Trial on the sole remaining issue of damages then proceeded. Some of the defense testimony was presented out of order for the convenience of the witnesses. During the direct examination of plaintiff, plaintiff's attorney believed the testimony of the insurance adjuster was required. See footnote 1. He then made the following offer of proof to the court, outside the presence of the jury, of plaintiff's proposed testimony.

MR. ROREM: (plaintiff's attorney) Well, the basic question, Your Honor, I think the gist of the defense and what they've been trying to do is to try to show that he could have gone back to work. I intend to ask him why he went to school and he will testify and the answer is going to be that Howard Bollerud told him or encouraged him to go to school and that they were going to take care of him. And it is the thing which I figured was going to show up, I didn't see how we were going to avoid it, but their point still is that there hasn't been anything is lost wages, their attack is that he could have gone to work, nothing wrong doing some sort of job and my point is that what he did was done at their encouragement and they should not be able to now come back in and say or insinuate that he was trying to get something for nothing, that is what they are trying to do, but what he did was on their advice and it raises a very touchy situation and I think that this is the problem that exists . . .

The trial court rejected the offer on the ground the proposed testimony was irrelevant.

During closing argument to the jury by defendant's attorney he said:

I suggest to you, ladies and gentlemen, that Mr. Kubista, and that the evidence is clear, could have clearly been employed prior to this time if he had decided to be employed but instead he decided to go to school and he says that he is bettering himself in school. I don't believe that the defendant is responsible for that decision.

The trial resulted in a $25,000 verdict for plaintiff. The court allowed an offset of $20,795.58 for sums already paid to plaintiff in medical expenses and wages and entered a judgment for plaintiff in the net sum of $4,204.42.

On plaintiff's appeal, the Court of Appeals held plaintiff's proffered testimony should have been admitted because it shed light on the seriously contested issue of the amount of plaintiff's lost wages properly recoverable. Defendant does not disagree his defense was that plaintiff did not mitigate his damages by attempting to work, but instead, on his own, chose to go to school. The Court of Appeals held the proffered testimony clearly relevant on the issue of the reasonableness of plaintiff's actions, I.e., to explain his not going to work. If plaintiff had been permitted to show he chose to attend school at the urging of defendant's insurer, the jury might not be receptive to defendant's defense that plaintiff was thereby violating his duty to mitigate damages. Without the testimony offered, defendant was able to argue in closing that defendant should not be responsible for plaintiff not seeking work but choosing to attend school.

The dissenting opinion advances three grounds for upholding the trial court's rejection of plaintiff's offer of proof. (1) The plaintiff's offer of proof was insufficient 'to apprise the court of the grounds for admissibility'; (2) the offered evidence was irrelevant because it bore no logical relationship to the fact in issue to be established; and (3) if relevant, the trial court's exclusion was not an abuse of discretion when weighed against established legal principles and policy considerations.

We disagree with these contentions. It is true that when the admissibility of offered evidence depends upon the purpose for which it is offered, the trial court may properly reject an offer of proof which does not disclose such purpose. Kain v. Logan, 79 Wash.2d 524, 527, 487 P.2d 1292 (1971); Tomlinson v. Bean, 26 Wash.2d 354, 361, 173 P.2d 972 (1946); Annot., 89 A.L.R.2d 279, 289 (1963). However, as shown in plaintiff's affidavit in opposition to the motion in limine and his offer of proof to the court, plaintiff's counsel informed the court (1) of the nature of the testimony he proposed to elicit from the plaintiff, (2) that the limited purpose of the evidence was to refute defendant's theory on mitigation of damages, and (3) that the testimony was relevant circumstantial evidence to explain plaintiff did not breach his duty to mitigate damages in failing to seek employment, and instead went to school in good faith reliance on the encouragement and promise of defendant's insurer. Plaintiff's offer of proof states in part:

(1) I intend to ask him why he went to school and he will testify and the answer is going to be that Howard Bollerud told him or encouraged him to go to school and that they were going to take care of him . . . (2) (T)heir point still is that there hasn't been anything in lost wages, their attack is that he could have gone to work . . . (3) they should not be able to now come back in and say or insinuate he was trying to get something for nothing . . .

Plaintiff's offer of proof made a sufficient disclosure of the reasons for admissibility 'so that the court (might) make an informed ruling.'...