Nazarak v. Waite

• Decision Date: 02 August 2019
• Docket Number: No. 1888 MDA 2018,1888 MDA 2018
• Citation: 216 A.3d 1093
• Parties: Seth NAZARAK v. Rubin WAITE, Jr. and Haranin Construction, Inc., Appellants
• Court: Pennsylvania Superior Court

216 A.3d 1093

Seth NAZARAK

v.Rubin WAITE, Jr. and Haranin Construction, Inc., Appellants

No. 1888 MDA 2018

Superior Court of Pennsylvania.

Argued June 26, 2019

Filed August 02, 2019

John M. Polena, Pittsburgh, for appellants.

William J. Coppol, and Louis C. Ricciardi, Blue Bell, for appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Rubin Waite, Jr., ("Waite") and Haranin Construction, Inc., ("Haranin Construction") (collectively "Appellants") appeal from the judgment entered on December 10, 2018,¹ in the Court of Common Pleas of Centre County in favor of Seth Nazarak ("Nazarak"). After a careful review, we affirm.

The relevant facts and procedural history are as follows: On June 26, 2016, Nazarak filed a complaint against Appellants, and in response to Appellants' preliminary objections, Nazarak filed an amended complaint on July 25, 2016.² Therein, Nazarak contended that, on or about December 10, 2014, Waite was driving a commercial vehicle owned by his employer, Haranin Construction, and Nazarak was driving a commercial vehicle owned by his employer, M & C Trucking Company. Both men were acting within the course and scope of their employment when the vehicle being driven by Waite rear-ended the vehicle being driven by Nazarak, who was stopped at a red traffic signal at the intersection of Route 22 and Cook Street in Cambria County.

Nazarak contended that, as a direct and proximate result of the accident, he sustained serious injury. Accordingly, he presented claims of negligence against Waite, vicarious liability against Haranin Construction, and negligent entrustment against Haranin Construction. On September 15, 2016, Appellants filed an answer with new matter to Nazarak's amended complaint, and on October 5, 2016, Nazarak filed a reply to the new matter.

On September 14, 2017, Appellants filed a motion to compel an independent medical examination, and on October 17, 2017, the parties agreed upon a consent order for Nazarak to submit to an independent medical examination with Appellants' expert, J. William Bookwalter, III, M.D.

On June 4, 2018, Appellants filed several motions in limine . Relevantly, Appellants filed motions in limine seeking to limit Nazarak's medical damages evidence solely to the amount paid by workers' compensation and the Department of Public Welfare, preclude evidence of compromise and release and limit Nazarak's wage loss to the amount of indemnity benefits paid by workers' compensation, and preclude Charles J. Harvey, D.O., from testifying based on opinions and reports authored by a non-testifying expert. Nazarak filed a reply in opposition to Appellants' motions in limine , and the trial court denied the motions in limine indicated supra .

Thereafter, both parties filed proposed jury instructions, and Appellants additionally filed supplemental proposed jury instructions. The case proceeded to a jury trial, at the conclusion of which the jury answered "yes" to the question: "Was the negligence of Rubin Waite, Jr. and Haranin Construction, Inc. a factual cause of any harm to Seth Nazarak?" Jury Verdict Sheet, filed 6/21/18. Further, the jury answered "$750,000" to the question: "State the amount of damages, if any, sustained by Seth Nazarak as a result of the accident." Id.

Appellants filed timely post-trial motions, to which Nazarak filed a reply in opposition. By opinion and order entered on October 15, 2018, the trial court denied Appellants' post-trial motions. Appellants filed a notice of appeal on November 13, 2018. On that same date, the trial court directed Appellants to file a Pa.R.A.P. 1925(b) statement, Appellants timely complied, and the trial court filed a brief statement referring this Court to its October 15, 2018, opinion. Thereafter, as indicated supra , judgment was entered against Appellants and in favor of Nazarak.

On appeal, Appellants present the following issues for our review (verbatim):

A. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL IN PERMITTING EVIDENCE OF PLAINTIFF'S WORKERS' COMPENSATION LIEN AT TRIAL?

1. Whether the trial court erred in permitting evidence of Plaintiff's workers' compensation lien at trial as it is an inadmissible collateral source, permitted a double recovery and usurped the function of the jury by valuing the case and prejudicing the Defendants?

2. Whether a new trial should be awarded as the trial court erred in permitting evidence of Plaintiff's workers' compensation compromise and release at trial as evidence of settlements are inadmissible at trial and its introduction valued the case for the jury prejudicing the Defendants?

3. Whether a new trial should be awarded as the trial court erred in refusing to issue Defendants' supplemental jury points for charge 1 and 3 to provide the jury with a full understanding of Plaintiff's duty to repay the workers' compensation lien misleading the jury and prejudicing the Defendants?

B. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL BASED UPON EXPERT TESTIMONY PERMITTED AND EXCLUDED AT TRIAL?

4. Whether a new trial should be awarded as Plaintiff's vocational expert Celia Evans testified outside the scope of her expert report prejudicing the Defendants?

5. Whether a new trial should be awarded as the expert report and opinions of non-testifying expert Dr. Brooks were permitted to be introduced at trial prejudicing the Defendants?

6. Whether a new trial should be awarded for precluding the testimony of Plaintiff's expert Dr. Rundorff that Plaintiff's lumbar spine could have been in the same condition prior to the at-issue accident prejudicing the Defendants?

C. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL BY PERMITTING IMPROPER REFERENCES AT TRIAL?

7. Whether a new trial should be awarded based upon Plaintiff's counsel's improper reference in his closing argument to the fact that the Defendants did not produce a vocational or economic expert as their figures if presented would have been large prejudicing the Defendants?

8. Whether a new trial should be awarded based upon Plaintiff's counsel's solicitation of testimony regarding the brake failure of the at-issue truck from Defendant Waite after Defendants had already admitted negligence prejudicing the Defendants?

Appellants' Brief at 11-12 (suggested answers omitted) (bold in original).

In issue "A," Appellants present three sub-issues related to evidence regarding Nazarak's receipt of workers' compensation benefits. Specifically, they contend the trial court erred in permitting evidence that Nazarak received workers' compensation benefits, permitting evidence of Nazarak's compromise and release with regard to his workers' compensation claim, and failing to give Appellants' supplemental points for charge numbers 1 and 3.

With regard to their first sub-issue, Appellants contend the trial court erred in admitting evidence that Nazarak received workers' compensation benefits, which Nazarak would have to repay in the event of a recovery in the instant case.³ Id. at 31. Specifically, Appellants assert the evidence regarding the existence of the workers' compensation lien violated the "collateral source rule." Id. at 33. They further assert the evidence of the workers' compensation lien confused and misled the jury into believing that, since such benefits were paid to Nazarak, his injuries "must have been caused by the at-issue accident[,]" thus usurping the function of the jury. Id. at 35. Finally, they suggest the evidence of the workers' compensation lien permitted a "double recovery" by Nazarak. Id. at 38.

"[T]he admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law." Schmidt v. Boardman Co. , 958 A.2d 498, 516 (Pa.Super. 2008) (citation omitted).

An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Jacobs v. Chatwani , 922 A.2d 950, 960 (Pa.Super. 2007).

In addressing Appellants' first sub-issue, the trial court relevantly indicated the following:

The collateral source rule provides that payments from a collateral source shall not diminish the damages recoverable; the rule was intended to avoid precluding a party from obtaining redress for injuries merely because coverage was provided by a collateral source. Nigra v. Walsh , 797 A.2d 353, 356 [ (Pa.Super. 2002) ]. A plaintiff is prevented from introducing evidence about the lack of workers' compensation during trial due to the possibility of creating sympathy. Hileman v. Pittsburgh and Lake Erie R. Co. , 546 Pa. 433, 685 A.2d 994, 999 (1996). Specifically, "it has never appeared necessary to negate any assumption that there is workers' compensation (or subrogation for that matter) in actions by employees against third parties for injuries that occur on the job." Id.

Workers' compensation gives employers the right of subrogation when the employer made payments as a result of negligence by a third party. Liberty Mutual Ins. Co. v. Domtar Paper Co. , 77 A.3d 1282, 1289 [ (Pa.Super. 2013) ]. The purpose of subrogation is to prevent double recovery for the same injury, [ ] relieve employers of liability for third party's negligence, and prevent negligent parties from escaping liability. Young v. W.C.A.B. (LGB Mechanical) , 976 A.2d 627, 630 (Pa.Commw. 2009).

The evidence that was presented was not presented to preclude Plaintiff [Nazarak] from recovering; Plaintiff [Nazarak] will not receive double pay. Workers' compensation is not a collateral source because

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