Nazarenko v. CTI Trucking Co., Inc.
| Decision Date | 28 June 1993 |
| Docket Number | No. 93-118,93-118 |
| Citation | 313 Ark. 570,856 S.W.2d 869 |
| Court | Arkansas Supreme Court |
| Parties | Mike NAZARENKO, Appellant, v. CTI TRUCKING CO., INC. & Randy Justice, Appellees. |
Don P. Chaney, Benny M. Tucker, Arkadelphia, for appellant.
Walter A. Murray, Little Rock, for appellees.
Mike Nazarenko sued CTI Trucking Co., Inc. (CTI) and its driver, Randy Justice, appellees, for his injuries and damages resulting from their negligence. The jury returned a verdict in the appellees' favor. Mr. Nazarenko then filed a motion for a new trial claiming the trial court committed an error of law by permitting testimony favorable to the appellees in violation of the collateral source rule. The trial court denied the motion and Mr. Nazarenko appeals. We agree with the trial court and affirm.
Mr. Nazarenko sustained back injuries during the delivery of a roll of carpet by CTI to his employer, Sherwin-Williams, located in Arkadelphia. According to Mr. Nazarenko, he and Mr. Justice were unloading a large roll of carpet using a "carpet jack" when Mr. Justice pushed the roll and caused a steel pipe part of the carpet jack to strike Mr. Nazarenko in the chest. To avoid being crushed, Mr. Nazarenko caught the raised carpet roll weighing about 800 pounds. He alleged that this caused his back injury which required surgery.
Mr. Nazarenko brought suit claiming that Mr. Justice was negligent in handling the roll of carpet as it was being unloaded from the truck and that he was entitled to monetary relief for the resulting damages he suffered. After the jury returned a verdict for CTI, Mr. Nazarenko filed a motion for a new trial on the basis that the trial court committed an error of law in allowing defense counsel to proceed with a line of questioning which violated the collateral source rule.
In ruling against Mr. Nazarenko on this motion, the trial court found:
The Court granted a pre-trial motion in limine whereby the Defendant's counsel was prohibited from mentioning Workers' Compensation or bringing such matter to the jury's attention.
The first witness called by the Plaintiff was Mitch Fendley [Branch Manager of Sherwin-Williams] and he testified about Workers' Compensation.
The Plaintiff testified he had not been going back to the doctor as he could not afford it. He further testified he couldn't go back to Henderson State University as he owed them a bill and could not pay it.
The defense in chambers requested that they be allowed to cross-examine the Defendant concerning the Workers' Compensation settlement where he received medical payments and a sum of money, that he testified before the Law Judge that he was going to use the money to pay his bills and return to college. The Court denied the defendant the right to present such testimony unless the Plaintiff continued to "open it up" before the jury. In other words, the Court would not allow the jury to be mislead [sic] by the Plaintiff.
The trial continued and there was no mention of insurance, nor [sic] was it inferred.
....
Under the facts before us, we cannot say that the trial court erred in denying the motion for a new trial.
The record reveals the trial court granted a pretrial motion in limine prohibiting CTI from referring to Mr. Nazarenko's workers' compensation payment which covered some of his medical bills. However, this information was furnished to the jury by Mr. Nazarenko's own witness, Mitch Fendley, the branch manager of Sherwin-Williams, when Mr. Fendley stated on direct-examination that on the day of the incident he "suggested that [Mr. Nazarenko] go to the doctor and, of course, that day I called--Sherwin-Williams has an eight hundred number for their workers' compensation program within the company." He next said, "I called them and notified them, and we had Mike [Nazarenko], I believe, report to Dr. John Bomar for treatment."
In his brief, Mr. Nazarenko states that he is not seeking appellate relief because Mitch Fendley's testimony was "presented to the jury unsolicited by him and was prejudicial to him" since his own attorney brought workers' compensation out on direct examination, but instead he "has come before this court seeking relief ... because appellee's counsel then intentionally and deliberately aggravated the prior injection of workers' compensation to the jury with his questioning of Mr. Nazarenko." Mr. Nazarenko supports his position by quoting at length trial testimony and exchanges between the court and counsel as follows.
Mr. Nazarenko testified on direct examination:
After these questions, the following bench conference took place out of the hearing of the jury.
Mr. Murray (Defense Counsel): Judge, the evidence, from the testimony of Dr. Gocio, is that this gentleman didn't seek medical attention for a period of a year or a year and a half.
Mr. Murray: The Claimant, from 1991 until sometime in 1992, has testified that he didn't get medical treatment because he couldn't afford it. I think he's opened the door for me to inquire, not about insurance, but about the fact that his medical bills had, in fact, been paid.
Mr. Chaney: I would strongly disagree with that, your Honor. He testified the bills had been incurred, and then the future medical care that Dr. Gocio predicted that he would need, five hundred to a thousand a year--he hasn't been spending that in the last year or so.
Mr. Murray: He said he hadn't gone to the doctor because he couldn't afford it. That's why he didn't go back--
Mr. Chaney: We're talking about the future medical.
Court: Mr. Murray, I'm going to overrule your request, and let's proceed.
Mr. Murray: Okay, thank you.
Mr. Nazarenko later testified as follows upon cross-examination:
Mr. Nazarenko: When I worked at Sherwin-Williams, I had to take the hours that I was getting. They only have so many hours allotted to part-time employees, and I got as many hours as I could get.
At this time, CTI's counsel stated that he did not want to risk the possibility of a mistrial, and the trial judge asked the attorneys to approach the bench. The following conversation then took place:
Mr. Murray: He testified before Dail Stiles [the administrative law judge] that he was going to take his [workers' compensation] settlement in the amount of $8900.00 and go back to school.
Mr. Chaney: Your Honor, I would say that this is just highly prejudicial and it's designed to circumvent making an end run around the Court's previous ruling not to talk about insurance.
Mr. Murray: Well, Judge, in that regard, they opened up insurance a long time ago in the voir dire, after they were the ones that requested the--
Mr. Chaney: No. No sir.
Court: In order words, what you're saying is that he made his statement under oath that he was going to go back to school to take 9 hours--
Mr. Murray: And get him a sit-down job.
Court: Well, what he doesn't understand right now is who you were talking about, or where that statement was made.
Mr. Chaney: Your Honor, I think it would be highly prejudicial to open the door to bring out the whole worker's compensation deal at this stage of the game.
Mr. Murray: I think it is, too. You're the ones that opened the door, not me.
Mr. Chaney: No, sir, he's the one asking the questions. He's trying to open his own door.
Court: Workman's Comp. came out on Fendley's statement on direct.
Mr. Murray: It sure did.
Mr. Chaney: It didn't come out that he got any benefits.
Mr. Murray: See what they want is the advantage of certain testimony and then the part that hurts them, they don't want that before the jury, and I don't want to risk a mistrial.
Mr. Chaney: Mr. Murray is the one eliciting the testimony.
Court: I can see where he would want the statement in, but to do so is going to open up the--I can see it just as sure as the world that he's going to end up saying it was before a worker's comp. judge. I don't see how you're going to get around it.
Mr. Chaney: It's not relevant, your Honor, what happens in a worker's comp. case about what somebody's plans might be.
Court: I don't think it's worth the risk of opening it up. Can you go on without it?
Mr. Murray: I think I can.
Court: Okay. Proceed.
Mr. Nazarenko was further questioned on cross-examination by CTI's attorney:
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