Lozoya v. Sanchez

• Decision Date: 24 March 2003
• Docket Number: No. 27,755.,27,755.
• Citation: Lozoya v. Sanchez, 133 N.M. 579, 66 P.3d 948, 2003 NMSC 9 (N.M. 2003)
• Parties: Ubaldo LOZOYA, Sara Lozoya, and Osbaldo Lozoya, Plaintiffs-Appellants, v. Diego SANCHEZ, Statkus Engines, Ohio Casualty Group, Phillip McWaters d/b/a PDM Trucking, and Scottsdale Insurance Company, Defendants-Appellees.
• Court: New Mexico Supreme Court

66 P.3d 948

133 N.M. 579

2003 NMSC 9

Ubaldo LOZOYA, Sara Lozoya, and Osbaldo Lozoya, Plaintiffs-Appellants, v.Diego SANCHEZ, Statkus Engines, Ohio Casualty Group, Phillip McWaters d/b/a PDM Trucking, and Scottsdale Insurance Company, Defendants-Appellees.

No. 27,755.

Supreme Court of New Mexico.

March 24, 2003.

Narciso Garcia, Jr., Albuquerque, NM, for Appellants.

Madison, Harbour, Mroz & Brennan, P.A., Neils L. Thompson, Gregory D. Steinman, Beall & Biehler, Gregory L. Biehler, Eugene I. Zamora, Albuquerque, NM, for Appellees.

OPINION

MINZNER, Justice.

{1} In this negligence action, Plaintiffs appealed to the Court of Appeals from a judgment and verdict of the district court.The Court of Appeals certified the matter to this Court, because the case involves an issue of substantial public interest as to whether unmarried cohabitants may recover against negligent actors for loss of consortium, and we accepted the certification.SeeNMSA 1978, § 34-5-14(C)(1972);Rule 12-606 NMRA 2003.Plaintiffs also raise several additional points of error on appeal.We affirm as to all issues except the directed verdict as to the loss of consortium claim, and the verdict of no negligence as to one of the Defendants.We hold as a matter of first impression under New Mexico law that a claim for loss of consortium is not limited to married partners.We therefore affirm in part, reverse in part, and remand for further proceedings.

I

{2}This case arises from two automobile collisions in which Ubaldo and Osbaldo Lozoya, father and son, were traveling together.The first of these collisions took place on June 21, 1999.Ubaldo and Osbaldo were stopped at a red light on Coors Boulevard in Albuquerque when another vehicle collided with them from behind.The other vehicle was driven by DefendantDiego Sanchez, an employee of DefendantStatkus Engines, LLC.Mr. Sanchez testified that he was traveling about 35 mph at the time that he applied his brakes, and an expert testified that he had slowed to between five and fifteen mph at the point of impact.The police officer who investigated the accident testified that the Lozoya vehicle received moderate damage, while the Statkus vehicle was more severely damaged.

{3} At the scene of the accident, neither of the Lozoyas complained of any injuries.Ubaldo began to experience pain shortly thereafter, however, in one of his arms, head, and legs.Father and son visited Presbyterian Occupational Medical Clinic eight days later.The doctor found that Ubaldo was experiencing tenderness in his neck and back, but that his range of motion in these areas was "pretty close to normal."An x-ray showed what appeared to be a compression of one of Ubaldo's vertebrae that "looked like it was old," but the doctor believed that the soreness Ubaldo was experiencing was a result of the accident.Ubaldo visited the same doctor again about a week later, and the doctor decided that Ubaldo could return to work on a light duty basis.

{4} Osbaldo reported experiencing lower back pain.The doctor referred him to a physiatrist (muscle & bone specialist) to determine if anything further should be done.The physiatrist diagnosed him as having a soft tissue injury and sent him to physical therapy.Osbaldo did not show up for this third appointment with the physiatrist so he was released from care.

{5} Ubaldo continued to experience pain, however, and he followed up with another doctor.This doctor ordered chiropractic care and physical therapy.Ubaldo went to one physical therapy appointment, then stopped.This doctor believed that Ubaldo would not be able to return to his former occupation because of the back problems he was experiencing.Ubaldo was presented with the options of either enduring the pain as it existed, taking medication, having "epidural blocks" performed, or surgery.Ubaldo decided that he did not want the injections or surgery.

{6} On April 18, 2000, approximately ten months after the first accident, Ubaldo and Osbaldo were involved in another collision as they were driving toward a job site.They were driving on Interstate 40, near the "Big-I" interchange when they were again rear-ended by another vehicle.This time, the other vehicle involved was a dump truck operated by DefendantPhilip McWaters.The collision took place during the morning rush hour.The impact of the McWaters vehicle pushed the Lozoya vehicle into the vehicle in front of it, driven by Christine Sotelo, who testified at trial.

{7} Ms. Sotelo testified that prior to the accident, the truck driven by Osbaldo had been following her very closely.She tried to communicate that to him.He backed off a little bit, but then she was rear-ended by Osbaldo's vehicle that had been rear-ended by the McWaters vehicle during the stop-and-go traffic of the rush hour.After the accident, all three vehicles stopped, and Osbaldo and Ubaldo got out of their truck, and waited for the police to arrive.Ms. Sotelo's vehicle was not damaged by the collision.Osbaldo did not seek medical care as a result of this accident.Although Ubaldo testified that he was already 100 percent disabled prior to this collision, his doctor testified that his present condition is 10 to 15 percent attributable to this accident.

{8} Evidence was also presented that Ubaldo had back problems prior to the accidents.He had actually reported to University Hospital complaining of lower back pain eleven days prior to the first accident.Ubaldo had a compression fracture in his back, which one doctor testified "probably pre-dated the first accident."Ubaldo's work in the construction trades, including two incidents of falling off a ladder could have caused this fracture.The doctor also testified that Ubaldo had a herniated disk in his spine that could have existed prior to the first accident.

{9} At the time of the first accident, Ubaldo lived in a domestic partnership with Sara Lozoya, although they were not married.They had, however, "been together" for over 30 years.They had three children together.Osbaldo was the youngest.For fifteen years they had lived together in a home that they had purchased.They carried the same last name, and had filed joint tax returns since at least 1997.They were formally married after the first accident, but before the second one, in November 1999.

{10} Ubaldo testified that prior to the accidents, he and Sara had a happy relationship, which included going out dancing, and visiting friends together.Sara testified that they had an intimate relationship, and that they made decisions together.After the first accident, the relationship changed dramatically because Ubaldo became depressed.They could not socialize nearly as much because of the pain that Ubaldo experienced.Ubaldo would stay in bed quite a bit.Their sexual relationship also diminished.After the second accident, the relationship worsened further.

II

{11} The Lozoyas' claims in both accidents were brought in a single lawsuit, and the case went to a jury trial in June 2001.During the course of the trial, the court did not allow Plaintiffs to present evidence that Ubaldo had one vehicle repossessed for failure to make the payments, and that foreclosure proceedings on the house had recently been initiated against him, although they were allowed to inform the jury that he had not been able to make the payments.After all the evidence was presented, Plaintiffs submitted a special verdict form that would have itemized the types of damages awarded, but the court chose to use the form found in our Uniform Jury Instructions.Plaintiffs also sought to have the jury consider a loss of consortium claim in favor of Sara Lozoya, but the court granted a directed verdict as to that claim in relation to the first accident, because they were not legally married at the time.

{12} Mr. Sanchez and Statkus Engines admitted negligence as to the first accident.The jury returned a verdict in favor of Plaintiffs as to that accident, assessing damages in favor of Ubaldo in the amount of $38,500, and in favor of Osbaldo in the amount of $1500.Although the court allowed the jury to consider Sara's loss of household services by Ubaldo, the jury did not award any damages as to that claim.Mr. McWaters did not admit negligence as to the second accident, and the jury found that he was not negligent.Accordingly, no Plaintiff was awarded any damages as a result of the second accident.After the trial's conclusion, Plaintiffs moved for a new trial, based on the same asserted errors they bring before this Court, as well as some others.This motion was denied and the district court entered judgment according to the jury verdict.

III

{13}Plaintiffs make numerous claims on appeal.Their first claim is that the trial court should have allowed the jury to consider Sara's loss of consortium claim as to the first accident.They also claim that substantial evidence does not support the finding of no negligence on Mr. McWaters' part.They claim that the court should have allowed the jury to consider the fact that Ubaldo had one vehicle repossessed, and foreclosure proceedings on his house had been initiated.They also claim the court should have allowed the jury to learn the amount of social security payments that Ubaldo received.They also claim that the jury verdict should be overturned because it was the result of passion or prejudice.Finally, Plaintiffs claim that the district court erred by not submitting their proposed special verdict form.We address each argument in turn, and hold that the district court should be affirmed as to all issues, except the directed verdict as to Sara's loss of consortium claim, and the verdict of no negligence on the part of Mr. McWaters.

A

{14} Sara brought a loss of consortium claim against both Mr. Sanchez and Mr. McWaters.The district court did not allow the jury to consider such a claim as against Mr. Sanchez, however, because she was not married to...