Rogers v. Northern Rio Arriba Elec. Co-op., Inc., 76-2123
| Decision Date | 09 August 1978 |
| Docket Number | No. 76-2123,76-2123 |
| Citation | 580 F.2d 1039 |
| Parties | John C. ROGERS, Plaintiff-Appellant, and The Hartford Accident & Indemnity Company, Plaintiff in Intervention, v. NORTHERN RIO ARRIBA ELECTRIC COOPERATIVE, INC., a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Steven L. Tucker, Santa Fe, N. M. (Jones, Gallegos, Snead & Wertheim, P. A., Santa Fe, N. M., on the brief), for plaintiff-appellant.AT Paul D. Barber, Albuquerque, N. M. (James C. Ritchie of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., on the brief), for defendant-appellee.
Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.
This is a diversity action sounding in tort. John C. Rogers was injured in an accident arising out of and in the course of his employment with Beasley's Hot Shot Service. Rogers and his fellow employees were engaged in moving well drilling equipment on a truck over a public highway in the State of New Mexico. During the course of such employment, Rogers came in contact with certain electrical distribution lines owned and maintained by Northern Rio Arriba Electric Cooperative and suffered serious personal injuries. Rogers brought suit against Rio Arriba for damages sustained by him as a result of Rio Arriba's alleged negligence arising out of its construction and maintenance of its electrical distribution lines.
Rogers' employer carried workmen's compensation insurance with Hartford Accident & Indemnity Company. Hartford later intervened and sought indemnification, in the event Rogers recovered from Rio Arriba, in the amount paid Rogers as workmen's compensation benefits, which by the time of trial amounted to some $39,000.
Rio Arriba denied negligence and affirmatively alleged that Rogers' injuries resulted from his own negligence or that of his employer. Trial of the matter extended over some nine days and resulted in a verdict for Rio Arriba. Rogers now appeals the judgment entered in favor of Rio Arriba and urges one ground for reversal, namely, the giving of an instruction concerning Hartford and its interest in the proceeding. Under the circumstances, we find no prejudicial error in the giving of that instruction and we therefore affirm.
Before further detailing the record as made at trial, it might be helpful to refer to the instruction here challenged and to then set forth the position of Rogers in this court as regards that instruction. The instruction in question is set forth as an appendix to this opinion, and reference thereto should be made at this point. Rogers argues in this Court that this instruction is an incorrect statement of the law in three particulars, and further that even if the instruction were technically correct, it was improper to give any instruction on the subject since it was not relevant to any issue in the case and was highly prejudicial to him. As concerns the first matter, Rogers states that the instruction given was incorrect in the following particulars: (1) In the first paragraph where the jury is informed that the claim of Hartford is a matter to be determined by the jury; (2) in the fourth paragraph where the jury is informed that, under New Mexico law, Hartford could sue and seek indemnification from the other party for benefits paid the injured employee- ; and (3) in the last paragraph where the jury is informed that Hartford will receive the "first $39,132.00" of any award given Rogers, with Rogers receiving the overage, if any.
The instruction here under attack must be viewed in trial context. Hartford sought and obtained leave of court to file a complaint in intervention wherein it sought judgment against Rio Arriba for the monies it had paid Rogers as workmen's compensation benefits. No question was raised as to Hartford's right to intervene. Immediately prior to trial, during an informal conference in the trial judge's chambers, counsel for Hartford informed the court that although he desired to be present in court at the beginning of the trial, he did not intend to thereafter participate in the trial and that he in fact proposed to absent himself from further proceedings. This was acquiesced in by all concerned and, although the record is not entirely clear, the trial judge apparently indicated that he would take care of the carrier's interest by appropriate instruction.
As Voir dire of the jury began, counsel for Rogers and Hartford were seated together at one table. In his preliminary remarks, the trial judge identified the parties to the proceeding, including Hartford, and introduced counsel to the jury, including counsel for Hartford. The trial judge, in so many words, advised the jury that, though Hartford sought reimbursement for compensation it had paid Rogers, it would not actively participate in the trial and that the jury would be instructed at the proper time concerning Hartford's role in the case. No objection was voiced to such comment.
In his opening statement to the jury, counsel for Rogers made reference to Hartford with the following comment:
The proof will show, and Judge Bratton has already mentioned to you the part of Hartford Accident and Indemnity Company in this case, and I would like to comment on that at this time.
Hartford was a workmen's compensation carrier for Beasley's, the trucking company. So, they were required to pay for the medical care of Mr. Rogers, and they have paid to date approximately $30,000, the medical care, the hospital care of John Rogers.
And they have paid on workmen's compensation, a weekly payment; the exact figure will be, may be presented to you. It is of no particular concern. Hartford's concern in this case is to recover, if a judgment is rendered for Mr. Rogers, to recover from NORA what it has expended in workmen's compensation benefits.
The amount of compensation paid Rogers by Hartford was stipulated during the trial to be in the sum of $39,132.
In colloquy between the court and counsel Prior to instructing the jury, counsel for Rogers voiced the following objection to the instruction relating to Hartford:
As to the instructions proposed to be given by the Court, instruction appearing at Page 13, submitted by the defendant, we believe, Your Honor, that it contains quite a bit of unnecessary recital of the law, particularly as between Mr. Rogers and his employer, and it need not
Well, I think that the second paragraph and the last paragraph tell them everything without making a two-page instruction on something they really have to deliberate on. It's not really an issue for them and
After the instructions were given the jury, counsel made the following formal objection to the instruction here under attack:
The plaintiff objects to instruction given to the jury which commences at Page 13 and ends at...
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...Ltd., 609 F.2d 1069, 1073 (3d Cir.1979); Cockrell v. Ferrier, 375 F.2d 889, 891 (5th Cir.1967).93 See Rogers v. Northern Rio Arriba Elec. Coop., Inc., 580 F.2d 1039, 1042 (10th Cir.1978); see also Maheu v. Hughes Tool Co., 569 F.2d 459, 470 (9th Cir.1977).94 9 C. WRIGHT & A. MILLER, FEDERAL......
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