Lake v. D & L Langley Trucking, Inc., 2010 WY 75 (Wyo. 6/9/2010)

• Citation: 2010 WY 75
• Decision Date: 09 June 2010
• Docket Number: No. S-09-0094.,S-09-0094.
• Parties: DALLAS D. LAKE, Appellant (Plaintiff), v. D & L LANGLEY TRUCKING, INC., a Nebraska Corporation, and ORVAL WHITED, an Individual, Appellees (Defendants).
• Court: Wyoming Supreme Court

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2010 WY 75

DALLAS D. LAKE, Appellant (Plaintiff), v. D & L LANGLEY TRUCKING, INC., a Nebraska Corporation, and ORVAL WHITED, an Individual, Appellees (Defendants).

No. S-09-0094.

Supreme Court of Wyoming, April Term, A.D. 2010.

June 9, 2010.

Appeal from the District Court of Laramie County, The Honorable Michael K. Davis, Judge.

Representing Appellant: Bernard Q. Phelan, Attorney at Law, Cheyenne, Wyoming

Representing Appellees: Scott E. Ortiz of Williams, Porter, Day, & Neville, PC, Casper, Wyoming

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] This is an appeal from a personal injury negligence case. Dallas Lake was involved in an automobile accident with Orval Whited. Lake alleges Whited, while in the course and scope of employment for D & L Trucking, negligently attempted to pass him as he was making a left hand turn, thereby causing the inevitable collision. The case was tried to a jury. The jury returned a verdict finding Lake eighty-six percent at fault for the accident. Under Wyoming's comparative negligence law, Lake was entitled to no damages.¹ Lake filed a motion for a new trial, which the trial judge denied. Lake appeals, alleging a new trial should be granted because the verdict is unsupported by the evidence. Lake also argues a new trial should be granted because of error in the closing argument of the defense and also because the jury verdict was an impermissible quotient verdict. We affirm.

ISSUES

[¶ 2] Lake presents two issues for our review:

1. Should a new trial be ordered where there is insufficient evidence that the defendant was only 14% at fault where the defendant['s] semi illegally passed the plaintiff's pickup in the intersection, and the defendant made a surprise argument to the jury which mislead them concerning the law of "no-passing" zones?

2. Should a new trial be ordered when there is convincing evidence that the verdict was a "quotient verdict?"

FACTS

[¶ 3] On the day of the accident, Lake was driving north on Wyoming Highway 214 in a pickup. Whited, who was driving a tractor-trailer combination truck, was also driving north on Highway 214, some distance behind Lake. Highway 214 is a two-lane highway. Lake intended to turn left off Highway 214 at County Road 207.

[¶ 4] Whited was driving a relatively new Peterbuilt tractor, towing a fifty-foot trailer. Whited had an exemplary driving record and was in the process of returning home from a simple day trip. As he was driving, Whited saw Lake's pickup when he was about three or four miles behind Lake. Whited noticed that, although he was driving sixty-five miles per hour, the speed limit, he was gaining on the pickup. As he approached the pickup, he slowed his speed to about fifty-five miles per hour. There was no solid yellow line on the highway indicating a no-passing zone. There were no signs on the highway indicating an upcoming intersection. He saw no brake lights or turn signal coming from the pickup. Whited determined to pass the pickup. Whited did not notice the intersection with the county road. He turned on his left turn signal and when he was about three car-lengths behind the pickup he pulled over into the left lane and began his pass.

[¶ 5] Lake had seen the tractor-trailer truck when it was about a half mile behind him, but he had driven the road so many times he wasn't paying much attention to the road or the tractor-trailer truck. Lake, without checking his rearview mirror or side-view mirror, began his left hand turn. He had no idea the tractor-trailer truck was in the process of passing him. Lake impacted the tractor-trailer truck approximately fifteen feet behind the tractor's front wheel.

[¶ 6] Lake sued Whited and Whited's employer, D & L Trucking, alleging Whited negligently passed him, causing the accident and resulting personal injuries.² During closing arguments, both sides argued the language of Wyo. Stat. Ann. § 31-5-205(a)(ii) (LexisNexis 2009), which states in essence no passing is allowed

[w]hen approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing unless otherwise indicated by official traffic-control devices[.]

Lake's counsel argued the statute provided for "no exceptions." His counsel stated the law is "do not pass in an intersection under any circumstances." Defense counsel responded in his closing argument by emphasizing the statute actually does provide for an exception depending on the presence of a traffic-control device. Defense counsel went on to argue the law was that "unless it is otherwise indicated you can pass." Defense counsel concluded that, since there was no solid yellow line leading up to the intersection, in attempting to pass Lake, Whited "was not violating any statute." Lake's counsel did not object to this argument, but rather took the issue up in his rebuttal closing, arguing the yellow lines on highways are not "official traffic-control devices" as contemplated by the statute and therefore the absence of a solid yellow line at the intersection did not make Whited's pass legal.

[¶ 7] The case was handed to the jury. One of the jury instructions set forth the exact language of § 31-5-205(a)(ii). The same instruction also contained the following language of Wyo. Stat. Ann. § 31-5-217 (LexisNexis 2009):

No person shall turn a vehicle or move right or left upon a roadway unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided by this section.

A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal required by this act to the driver of any vehicle immediately to the rear when there is opportunity to give the signal.

The jury was also instructed that "if there appears any difference between the law as stated or implied by an attorney and these instructions, you are to be governed by the instructions." The jury deliberated for three hours. During its deliberations, the jury requested a calculator. The jury returned a verdict that Lake was eighty-six percent at fault and Whited was fourteen percent at fault for the accident. Under Wyoming's comparative fault statute, since Lake was more than fifty percent at fault, he took nothing from the action. Wyo. Stat. Ann. § 1-1-109(b) (LexisNexis 2009).

[¶ 8] Lake filed a motion for a new trial. Lake contended the evidence was insufficient to support the verdict. Lake also contended the defense counsel, in closing, ambushed him with the argument that Whited did not violate the law in passing at an intersection because no traffic control device directed otherwise. Finally, Lake contended that the jury verdict, attributing eighty-six percent of fault for the accident to Lake and fourteen percent to Whited, was obviously an impermissible quotient verdict.³ Lake attached an affidavit of one of the jurors to his motion supporting his allegation concerning the possibility of a quotient verdict. After a hearing, the trial court denied Lake's motion for a new trial.

DISCUSSION

[¶ 9] A lower court's decision on whether to grant a new trial is discretionary. Hannifan v. American Nat'l Bank of Cheyenne, 2008 WY 65, ¶ 36, 185 P.3d 679, 693 (Wyo. 2008); Pauley v. Newman, 2004 WY 76, ¶ 17, 92 P.3d 819, 825 (Wyo. 2004). "Trial courts have broad discretion when ruling on a motion for new trial, and they will not be reversed absent an abuse of that discretion. A party seeking reversal has a heavy burden; indeed, the party must show that a different result would have been obtained absent the abuse." Garnick v. Teton Cty. Sch. Dist. No. 1, 2002 WY 18, ¶ 6, 39 P.3d 1034, 1038 (Wyo. 2002). See also John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1357 (Wyo. 1998). The ultimate question in determining whether an abuse of discretion has occurred is whether the trial court could have reasonably concluded as it did. Horn v. Welch, 2002 WY 138, ¶ 8, 54 P.3d 754, 758 (Wyo. 2002).

[¶ 10] The availability of the grant of a new trial is governed by W.R.C.P. 59:

Rule 59. New Trials; Amendment of Judgments.

(a) Grounds. — A new trial may be granted to all or any of the parties, and on all or part of the issues. On a motion for a new trial in an action tried without a jury, the court may open the judgment, if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. Subject to the provisions of Rule 61, a new trial may be granted for any of the following causes:

(1) Irregularity in the proceedings of the court, jury, referee, master or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial;

(2) Misconduct of the jury or prevailing party;

(3) Accident or surprise, which ordinary prudence could not have guarded against;

(4) Excessive damages appearing to have been given under the influence of passion or prejudice;

(5) Error in the assessment of the amount of recovery, whether too large or too small (6) That the verdict, report or decision is not sustained by sufficient evidence or is contrary to law;

(7) Newly discovered evidence, material for the party applying, which the party could not, with reasonable diligence, have discovered and produced at the trial;

(8) Error of law occurring at the trial.

Sufficiency of the Evidence

[¶ 11] Lake's first issue as presented is actually a compound issue. Initially, Lake suggests a new trial is warranted because the verdict is not sustained by sufficient evidence. W.R.C.P. 59(a)(6). The district court held the evidence sufficient to support the verdict. Specifically, the district court held the evidence supported a finding that Lake...