Pinney v. Carrera, 011019 UTCA, 20170045-CA

Docket Nº:20170045-CA
Opinion Judge:MORTENSEN, JUDGE
Party Name:Kathleen Pinney, Appellee, v. Ricardo Carrera, Appellant.
Attorney:Barbara K. Berrett and Kyle C. Thompson, Attorneys for Appellant Blake Johnson and Ron J. Kramer, Attorneys for Appellee
Judge Panel:Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
Case Date:January 10, 2019
Court:Court of Appeals of Utah
 
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2019 UT App 12

Kathleen Pinney, Appellee,

v.

Ricardo Carrera, Appellant.

No. 20170045-CA

Court of Appeals of Utah

January 10, 2019

Third District Court, Salt Lake Department The Honorable Paige Petersen No. 150900750

Barbara K. Berrett and Kyle C. Thompson, Attorneys for Appellant

Blake Johnson and Ron J. Kramer, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

MORTENSEN, JUDGE

¶1 This case stems from a car accident in which Defendant Ricardo Carrera ran a stop sign and struck Plaintiff Kathleen Pinney's vehicle. Subsequently, Plaintiff filed suit, claiming personal injuries. At trial, Defendant made three separate oral motions for judgment as a matter of law-each on a discrete point of law. One of those motions was granted, and two were denied. At the close of his case-in-chief, Defendant again renewed the third motion for judgment as a matter of law related to Utah's no-fault tort threshold, but the court again denied the motion. Prior to submission of the case to the jury, Defendant also objected to the trial court's refusal to give a requested jury instruction. The jury returned a verdict in favor of Plaintiff, awarding $300, 000 in general damages. Defendant then filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, which the trial court denied. Defendant appeals and we affirm.

BACKGROUND1

¶2 Plaintiff's vehicle was struck by Defendant's vehicle after Defendant failed to stop at a stop sign. Plaintiff brought a civil action against Defendant for damages resulting from the accident. The parties engaged in discovery, and Plaintiff produced approximately $11, 000 in chiropractic bills.

¶3 At trial, Plaintiff elected not to seek an award of economic damages but instead chose to focus on non-economic damages associated with her herniated disc. Plaintiff argued to the jury that, based on her permanent injury, she should be compensated $50 to $75 per day for pain and suffering until she reached the age of eighty.

¶4 In addition to her own testimony, Plaintiff called several witnesses to testify on her behalf. Her chiropractor (Chiropractor) testified to Plaintiff's injuries, stating that she had a herniated disc; that the disc injury was "permanent"; and that it would "plague" her for the rest of her life. Chiropractor also testified that with physical therapy, Plaintiff was able to "get fairly close to normal range of motion. We couldn't ever get 100 percent, and we made her very comfortable. We were able to get rid of a lot of the symptoms. . . . [but the scar tissue is] not going to go away." He stated that during "five re-exams through the course of her treatment," he was able to restore most of Plaintiff's bodily function, but not all of it. Additionally, Plaintiff submitted, and the trial court admitted, MRI2 results, which Chiropractor discussed and which showed disc bulges and a disc herniation.

¶5 Additionally, Plaintiff's daughter testified to Plaintiff's limitations and inability to perform the same tasks that she did prior to the accident. Her daughter stated that she witnessed Plaintiff having difficulty picking up small children and that Plaintiff had been unable to ride an amusement park ride. Furthermore, Plaintiff's friend, with whom she had lived for sixteen months following the accident, testified concerning the negative effect Plaintiff's injuries had on Plaintiff's life.

¶6 At the close of Plaintiff's case-in-chief, Defendant made three separate oral motions for judgment as a matter of law. The first motion argued that Plaintiff had not carried her burden of demonstrating sufficient evidence of Defendant causing the accident. The trial court denied that motion. The second motion argued that Plaintiff had not introduced any evidence of economic damages, including the chiropractic costs, future costs of surgery, or any other future economic damages, and when Plaintiff stipulated that she was not seeking such damages, the motion was granted by the trial court. The third motion argued that Plaintiff failed to introduce evidence sufficient to satisfy the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). Defendant's bases for the third motion were that (1) because the second motion for judgment as a matter of law-alleging that no economic damages were introduced by Plaintiff-had been granted, so too should the third motion, and (2) Plaintiff had not presented expert testimony demonstrating that a permanent impairment rating had been given to Plaintiff based upon "objective findings." The trial court denied Defendant's third motion.

¶7 At the close of his case, Defendant renewed his third motion for judgment as a matter of law. The trial court again denied the motion, ruling that the issue of whether Plaintiff was entitled to an award of general damages should go to the jury.

¶8 The jury was instructed that it could consider certain factors in awarding non-economic damages. Those factors were "(1) the nature and extent of injuries; (2) the pain and suffering, both mental and physical; (3) the extent to which [Plaintiff] has been prevented from pursuing her ordinary affairs; (4) the extent to which [Plaintiff] has been limited in her enjoyment of life; and (5) whether the consequences of these injuries are likely to continue, and for how long." The jury was also instructed that its verdict was not to be rendered upon the basis of any passion or prejudice toward anyone.

¶9 Finally, Defendant objected to the trial court instructing the jury on causation by utilizing the version published in the second edition of the Model Utah Jury Instructions (MUJI 2).3Defendant asked the court to employ a different instruction which included the word "proximate." The court declined and instructed the jury using the MUJI 2 version. The case was submitted to the jury, which returned a verdict in favor of Plaintiff, awarding general damages in the amount of $300, 000.

¶10 Defendant filed a motion for judgment notwithstanding the verdict, or, in the alternative, a motion for a new trial. The motion for judgment notwithstanding the verdict renewed Defendant's third motion for judgment as a matter of law. The motion for a new trial was sought on two bases: (1) that the $300, 000 verdict was not supported by the evidence, and (2) that the verdict was excessive and was a product of passion or prejudice against Defendant, who had not been present at trial.4The trial court denied Defendant's motions. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Defendant brings several issues on appeal. First, he argues that the trial court erred in denying his third motion for judgment as a matter of law based upon Plaintiff's alleged failure to meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). "Appellate courts review the grant or denial of a motion for [judgment as a matter of law] for correctness." Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 6, 311 P.3d 564.

¶12 Second, Defendant contends correspondingly that the trial court erred in denying his motion for judgment notwithstanding the verdict based upon Plaintiff's alleged failure to introduce any evidence that could meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). We review a trial court's denial of a motion for judgment notwithstanding the verdict for correctness. Neff v. Neff, 2011 UT 6, ¶ 49, 247 P.3d 380.

¶13 Third, Defendant contends that the trial court abused its discretion in denying his motion for a new trial based on excessive damages. See Utah R. Civ. P. 59(a)(5)-(6). We review a trial court's denial of a motion for a new trial for abuse of discretion. Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991).

¶14 Lastly, Defendant claims that the trial court abused its discretion in refusing to allow Defendant's jury instruction- which used the phrase "proximate cause"-to be given. "We review a trial court's refusal to give a jury instruction for abuse of discretion." USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 75, 372 P.3d 629 (cleaned up).

ANALYSIS

I. Threshold Requirement of Section 31A-22-309(1)(a)

¶15 The parties dispute whether section 31A-22-309(1)(a) requires a plaintiff to demonstrate, at trial, that she has met the threshold requirement set forth in the statute. Utah Code section 31A-22-309(1)(a) requires plaintiffs to whom the statute applies to demonstrate, at trial, that they have met the threshold requirement set forth in the statute. The relevant section states, A person who has or is required to have direct benefit coverage under a policy which includes personal injury protection may not maintain a cause of action for general...

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