Perez v. U.S.

• Decision Date: 21 October 1987
• Docket Number: No. 86-1487,86-1487
• Citation: 830 F.2d 54
• Parties: Samuel PEREZ, Etc., Plaintiff-Appellant, Martha Beatriz Sanchez Perez, Appellant, v. The UNITED STATES of America, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 54

830 F.2d 54

Samuel PEREZ, Etc., Plaintiff-Appellant, Martha Beatriz Sanchez Perez, Appellant, v. The UNITED STATES of America, Defendant-Appellee.

No. 86-1487

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 21, 1987.

Mike Milligan, El Paso, Tex., for Martha Beatriz Sanchez Perez & Samuel perez.

Mark M. Greenberg, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., El Paso, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, RUBIN, and HILL ^*, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A husband and wife injured in a motor vehicle accident appeal a district court judgment rendered pursuant to the Federal Tort Claims Act awarding them damages. They contend that the award should be increased because the district court erred in imputing the husband's negligence to his wife, in identifying the wife's past medical expenses as community property, in finding the husband 48 percent responsible for the accident, in awarding only $2,250.00 for the wife's future loss of earnings and no damages for the husband's loss of consortium, and in failing to award post-judgment interest. We affirm the district court judgment on the merits, but we hold that post-judgment interest should also have been allowed.

I.

On a rainy day, while traveling on a country road near El Paso, Texas, Samuel and Martha Perez and their minor daughter were involved in a motor vehicle accident. Perez was driving west with his family in a 1957 Ford pickup truck without a working speedometer or windshield wipers. A postal jeep was stopped at a mail box approximately ten feet off the road. The jeep started forward, also headed west, and began its reentry onto the roadway when the Perez truck was a distance described by witnesses as a few hundred feet away. Perez did not notice the jeep at first because he was arguing with Mrs. Perez. When Perez discovered the jeep ahead of him, he accelerated and attempted to pass it by steering into the other lane of traffic. Another vehicle, driven by Rodolfo Arrellano, was approaching in that lane. Perez tried to return to the right lane and slammed on his brakes, but was unable to avoid a collision with Arrellano. The postal jeep was not involved in the collision. As a result of the accident, Mrs. Perez sustained serious mental and physical injuries. Amber, the Perezes' child, suffered a fracture of her pelvis. Perez was not injured.

After a bench trial, the district court found that Perez was 48 percent responsible for the accident and Miguel Yglecias, the postal jeep driver, 52 percent responsible; that Mrs. Perez's damages amounted to $219,798.34 from medical expenses, loss of earnings, disability, and pain and suffering; that Perez sustained damages of $2,000 from the loss of his pickup truck; and that Amber Perez's damages were $17,435 from medical expenses, pain and suffering, and loss of maternal services. Taking into account Perez's contributory negligence, the court reduced the Perezes' recovery accordingly.

II.

Under Texas law, which measures the liability of the federal government in this Federal Tort Claims Act suit, ¹ an individual's contributory or comparative negligence bars recovery if it is 50 percent responsible for his injury, but if it is less than 50 percent responsible it merely diminishes his recovery. ² The negligence in that event is also imputed to his spouse to reduce the damages recoverable as community property. ³ By imputing spousal negligence, the law seeks to prevent the negligent spouse from profiting as community owner by his own wrong. ⁴

The Perezes contend that the government had not pleaded the defense of imputed negligence and that therefore the district court improperly imputed Perez's negligence to Mrs. Perez. Under Federal Rule of Civil Procedure 8(c), failure to raise an affirmative defense in a timely manner results in a waiver of that defense. ⁵ The government responds that, because imputation of Perez's negligence ineluctably followed from a finding of contributory negligence on his part and because his contributory negligence was affirmatively pleaded as a defense, Rule 8(c) was satisfied.

The central purpose of the Rule 8(c) requirement that affirmative defenses be pled is to prevent unfair surprise. "A defendant should not be permitted to 'lie behind a log' and ambush a plaintiff with an unexpected defense." ⁶ An affirmative defense pleaded in general terms suffices "as long as it gives [the] plaintiff fair notice of the nature of the defense." ⁷ Consequently, we have generally found a failure to plead an affirmative defense when lack of notice prevented the plaintiffs from advancing stronger arguments or introducing more supportive evidence in their behalf. ⁸

As the record indicates, Perez's negligence was a central issue in the case. Both parties devoted substantial attention to that question; it was exhaustively considered and hotly disputed. Indeed, the Perezes do not suggest that they were deprived of a fair opportunity to litigate Perez's negligence or to introduce all of their evidence.

Once Perez's negligence was established, the only other issues that had to be decided before his negligence could be imputed to Mrs. Perez were whether the Perezes were married and to what extent Mrs. Perez's recovery constituted community property. The record shows that the Perezes were married when the district court entered its judgment, and the Perezes do not contend that the district court improperly relied on Graham v. Franco ⁹ in considering Mrs. Perez's recovery of medical expenses and loss of earnings to be community property. In short, even had the government pleaded imputed contributory negligence in addition to contributory negligence, the Perezes would not have been able to present a more effective response.

The Perezes claim prejudice from the lack of notice on the ground that three months after the district court entered judgment a Texas court issued a final divorce decree treating medical bills as a separate rather than community debt. Thus, they say, the combined effect of the two proceedings was to let Perez enjoy a windfall at Mrs. Perez's expense: the federal district court reduced her recovery by $60,000 because of his negligence, then the Texas divorce decree left her to pay her entire medical bill despite these diminished resources. According to the Perezes, if they had had notice that contributory negligence might be imputed, they would have shown at trial that the Texas divorce decree would probably not make Perez share the cost of his wife's medical bills, so reducing her damage award because of his negligence would penalize the wrong party.

The Perezes' complaint lies with the Texas divorce court. When the district court entered its judgment, the Perezes were still married and he was indeed claiming damages as a result of loss of consortium with her. Mrs. Perez had ample time to amend her pleadings in the divorce action to ensure that her husband's responsibility for her medical expenses would be reflected in the property division of the divorce decree.

This case is unlike Roth v. Swanson, ¹⁰ in which the defendant sought imputation of a son's negligence to his parents. A general pleading of contributory negligence did not suffice because the question whether the son was the agent of his parents when the accident occurred was disputable even after a finding of negligence. ¹¹ Similarly, in Knudson v. Boren, ¹² a general pleading of contributory negligence did not include imputation of that negligence to a joint venturer, ¹³ presumably because the parties had to litigate whether a joint venture existed separately from the issue of contributory negligence.

Because the failure to specify imputed contributory negligence did not prejudice the Perezes in any way, it cannot serve as a ground for reversal. ¹⁴ Moreover, the district court did not err in imputing Perez's negligence to his wife without explicit urging by the government in its complaint or proposed conclusions of law. A trial court can sua sponte address a legal issue raised by neither party. ¹⁵

III.

The Perezes further contend that the district court clearly erred (1) in finding Perez 48 percent responsible for the accident; (2) in awarding Mrs. Perez only $2,250.00 for loss of future earning capacity; and (3) in awarding Perez no damages for loss of consortium or witness trauma.

Federal Rule of Civil Procedure 52(a) provides: "Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The Supreme Court recently described the clearly-erroneous standard in Anderson v. City of Bessemer City, North Carolina: ¹⁶ a finding is clearly erroneous, even though there is evidence to support it, when, after considering all the evidence, the reviewing court "is left with the definite and firm conviction that a mistake has been committed." ¹⁷ If, on the other hand, there are two plausible views of the evidence, it would not be clearly erroneous to choose either. ¹⁸ Moreover, findings that turn on the factfinder's assessment of witness credibility demand even greater deference. ¹⁹

The district court found Perez negligent because he drove a truck without working windshield wipers in rainy weather and therefore did not have a clear view of the roadway; he traveled at a speed of approximately 40 miles per hour, which was excessive in view of the weather and road conditions; and he failed to devote his full attention to the driving of his vehicle. As the Perezes observe, the district court might have concluded from the deposition testimony of one witness, Rodolfo Arrellano, that Perez took evasive measures within normal reaction time after the jeep pulled onto the highway and that therefore the lack of working windshield wipers and lack of attention could not have...