Pina v. McGill Development Corp.

• Decision Date: 14 February 1983
• Citation: 388 Mass. 159,445 N.E.2d 1059
• Parties: Esther G. PINA v. McGILL DEVELOPMENT CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1059

445 N.E.2d 1059

388 Mass. 159

Esther G. PINA v. McGILL DEVELOPMENT CORPORATION.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 8, 1982.

Decided Feb. 14, 1983.

Vincent Galvin, Boston (Robert E. Riley, Boston, with him), for defendant.

Mary Jane Morgen, Brookline (William H. Shaughnessy, Boston, with her), for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS and NOLAN, JJ.

LIACOS, Justice.

This case and Pina v. Liberty Mut. Ins. Co., 388 Mass. 1001, 445 N.E.2d 1057 (1983), arise out of an injury suffered by the plaintiff, Esther G. Pina, when she fell as she was leaving work. After her employer's insurer, Liberty Mutual Insurance Company (Liberty Mutual), paid workmen's compensation benefits to Pina, she brought an action in tort against her employer's lessor, McGill Development Corporation (McGill), alleging that she was injured as a result of negligent maintenance of the parking lot outside her place of employment. In October, 1979, a jury awarded the plaintiff damages in the sum of $125,000. A posttrial motion by McGill for relief from judgment was denied. Mass.R.Civ.P. 60(b)(3), 365 Mass. 828 (1974). The Appeals Court affirmed the judgment. 13 Mass.App. 966 432 N.E.2d 110 (1982). We allowed McGill's application for further appellate review and consolidated this appeal with the appeal by the plaintiff in Pina v. Liberty Mut. Ins. Co., supra.

McGill contends that the denial of its motion for relief from judgment was error. McGill based its motion for posttrial relief on allegations of fraud perpetrated on the court by Pina. See Mass.R.Civ.P. 60(b)(3). McGill argues that Pina received workmen's compensation benefits on her original claim that she fell on the stairs at her employer's premises, while she recovered tort damages on the basis of later statements that she fell in the parking lot. McGill argues these claims to be inconsistent and to demonstrate a deliberate and calculated plan to use the judicial system in an unconscionable and fraudulent manner. McGill also argues that an action by Pina against Liberty Mutual for a declaratory judgment to prevent reimbursement to Liberty Mutual for the benefits paid to Pina, and the inaccurate representations by Pina's counsel at the posttrial motion hearing that the action against Liberty Mutual would be discontinued, are further evidence of a fraudulent scheme by Pina.

Additionally, McGill alleges error in the exclusion of certain documentary evidence containing inconsistent statements allegedly made by Pina relative to the location of her accident. Finally, McGill argues that the verdict of the jury is void as a compromise verdict.

We conclude there was no reversible error in the exclusion of the challenged documents. We also conclude that the trial judge was correct in denying the motion for relief from judgment and that the judge's supplementary charge did not result in a compromise verdict. Accordingly, we affirm the judgment.

We summarize the facts pertaining to the appeals. The plaintiff was employed by Microguard, Inc. (Microguard), located in Woburn. The premises had been leased to Microguard by McGill. On January 3, 1975, Pina was injured by a fall on snow or ice as she was leaving work. The employer's first report of injury, filed on January 21, 1975, by Microguard with Liberty Mutual, Microguard's workmen's compensation insurer, indicates that the injury occurred when "she slipped on ice on the stairs leading to [the] parking lot." Liberty Mutual conducted an investigation of the claim. As a result of its investigation, Liberty Mutual accepted Pina's claim for workmen's compensation benefits. The plaintiff received workmen's compensation benefits in excess of $60,000. In April, 1976, the plaintiff filed a third-party tort action against McGill, alleging that she had fallen in the parking lot. G.L. c. 152, § 15. Slightly over three years later, Liberty Mutual learned of Pina's third-party action against McGill and, on June 26, 1979, notified all parties of its claim for reimbursement of workmen's compensation payments. See G.L. c. 152, § 15. Pina commenced a suit against Liberty Mutual in September, 1979, for a declaratory judgment that Liberty Mutual is barred by the statute of limitations (G.L. c. 260, § 2A) from asserting its claim.

At the McGill trial, the plaintiff testified that she fell in the parking lot while getting into her car approximately eight feet away from the stairs. A witness for the plaintiff also testified that Pina fell in the parking lot. On cross-examination, Pina denied reporting to her employer, her physician, or the hospital that she had fallen on the stairs. Another witness gave testimony that Pina reported to her employer that she had fallen on the stairs. An excised copy of the injury report submitted by the employer to Liberty Mutual was also admitted to show that Pina had previously claimed to have fallen on the stairs. In addition, McGill pointed out to the jury that the hospital admission record, introduced in evidence by the plaintiff, also stated that she "fell on the stairs of the building." The judge did not allow the workmen's compensation claims supervisor at Liberty Mutual to testify. The judge excluded certain documents from evidence, apparently as hearsay.

After closing argument in which counsel for McGill drew the jury's attention to the evidence that contained the prior inconsistent statements of the plaintiff, the judge instructed the jury that it was their responsibility to decide the weight and credibility of the evidence. The jury were also instructed that before they reached the question of negligence by McGill, they first must decide whether Pina fell in the parking lot or on the stairway. The judge noted to the jury, "If she fell on the stairway, she cannot recover."

After several hours of deliberation, the jury sent a communication to the judge that they were divided and doubted their ability to reach a verdict. Carefully warning the jurors not to surrender a conscientiously held view simply to compromise, the judge gave a supplementary charge relative to the importance of being open to another's view and of being willing to reassess one's position. The defendant McGill objected in part to language in the charge calling for a certain amount of humility and charity from a juror. The jury finally returned a special jury verdict in favor of Pina in the amount of $125,000 against McGill. ¹ Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974).

Shortly thereafter, McGill filed several posttrial motions, including a motion for relief from judgment on the ground of fraud. See Mass.R.Civ.P. 60(b)(3). At an evidentiary hearing on November 20, 1979, the judge declined to conclude that the excluded evidence, two claim forms and the surgeon's report, proved a fraud on the court. He noted that these claim forms with the inconsistent statement were properly excluded because they had not been signed by the plaintiff, nor was there any evidence that the plaintiff's attorney had authority from the plaintiff to submit the statements to the insurer. The surgeon's report was excluded because the author was unavailable and there was no authentication of the report. As further proof that Pina had perpetrated a fraud on the court by hiring one attorney to pursue her workmen's compensation claim by claiming a fall on the stairs and hiring a second attorney to prosecute a tort claim against a third party, alleging a fall in the parking lot, McGill pointed out to the judge that Pina had commenced a suit in September, 1979, for a declaratory judgment against Liberty Mutual to preclude it from asserting its claim of reimbursement from the proceeds of the instant action. ² On inquiry by the trial judge at the posttrial motion hearing, plaintiff's counsel represented that Pina's action against Liberty Mutual would be discontinued. The judge denied the posttrial motions.

In an appeal by the defendant McGill from the judgment for Pina, the Appeals Court concluded that the trial judge had not erred in excluding certain evidence and in denying the motion for relief on the ground of fraud. Pina v. McGill Dev. Corp., 13 Mass.App. 966, 432 N.E.2d 110 (1982).

1. Excluded evidence. Because McGill depends upon the excluded documents containing prior inconsistent statements to support its allegation of fraud, we shall deal first with its claim of reversible error in this regard. During the trial, McGill made an offer of proof that three documents contained prior inconsistent statements by Pina. Two claim forms received by Liberty Mutual on behalf of Pina stated that she had fallen on the stairs. The forms were not signed by the plaintiff, but were signed only by her attorney. The surgeon's report, completed by her attending physician and sent to Liberty Mutual, indicated that Pina had reported to her doctor that she had fallen against a step. The doctor was unavailable however, as a witness, and no evidence was produced relative to the authentication of the report.

Even assuming, arguendo, that the documents were admissible as prior inconsistent statements to impeach Pina's credibility, for the exclusion of such evidence to cause a reversal, the record must demonstrate that the exclusion prejudiced the case. Bendett v. Bendett, 315 Mass. 59, 65-66, 52 N.E.2d 2 (1943). Cf. Murphy v. Conway, 360 Mass. 746, 750 & n. 3, 277 N.E.2d 681 (1972); Jewett v. Dow, 333 Mass. 187, 190, 129 N.E.2d 895 (1955). There is no showing of prejudice resulting from the exclusion of the proffered evidence. McGill was permitted to introduce the injury report submitted by the employer stating that Pina had fallen on the stairs; only the portion indicating that it was an insurance form was left off. The hospital admission notes, stating that Pina had fallen on the building stairs, were read to the jury. A witness testified that Pina reported to her employer that she had fallen on the stairs. Sufficient conflicting...