Scott v. Robertson, A-1

• Decision Date: 28 July 1978
• Docket Number: 3538,A-1,Nos. 3436,s. 3436
• Citation: 583 P.2d 188
• Parties: Wayne Leroy SCOTT and Lornell K. Scott, Appellants, v. Bruce Howard ROBERTSON, d/b/aMoving and Storage, Appellee. Bruce Howard ROBERTSON, d/b/aMoving and Storage, Cross-Appellant, v. Wayne Leroy SCOTT and Lornell K. Scott, Cross-Appellees.
• Court: Alaska Supreme Court

Page 188

583 P.2d 188

Wayne Leroy SCOTT and Lornell K. Scott, Appellants, v. Bruce Howard ROBERTSON, d/b/a A-1 Moving and Storage, Appellee.

Bruce Howard ROBERTSON, d/b/a A-1 Moving and Storage, Cross-Appellant, v. Wayne Leroy SCOTT and Lornell K. Scott, Cross-Appellees.

Nos. 3436, 3538.

Supreme Court of Alaska.

July 28, 1978.

F. P. Pettyjohn, Pettyjohn & Pestinger, Anchorage, for appellants and cross-appellees.

Murphy L. Clark, Stephen G. Dunning, Anchorage, for appellee and cross-appellant.

OPINION

Before BOOCHEVER, Chief Justice, CONNOR and BURKE, Justices, and DIMOND, Justice Pro Tem.

BOOCHEVER, Chief Justice.

This appeal questions the admissibility of a criminal conviction for driving while under the influence of intoxicating liquor, offered for the purpose of proving negligence in a civil action arising out of the same incident. Also at issue is the amount of attorney's fees awarded when the plaintiffs secured a lower net judgment than the sum contained in a formal offer of judgment. We affirm the rulings of the trial court.

In May 1975, the parties of this appeal were involved in a rear-end collision at 12th and I Streets in Anchorage. Wayne Scott, the driver of the leading car, was arrested and charged with operation of a motor vehicle while under the influence of intoxicating liquor (OMVI). ¹ He was convicted of the charge after a jury trial in August of 1975. ²

On October 2, 1975, Wayne and Lornell Scott filed a complaint against Bruce Howard Robertson, the driver of the car which had been following them, alleging that the sole and proximate cause of the accident was the negligence of Robertson. Robertson in response alleged that it was the Scotts who were negligent.

The trial court ruled that the August jury verdict for driving while under the influence of intoxicating liquor was relevant and admissible as evidence of negligence. The jury returned a special verdict, finding that Wayne Scott had been damaged in the amount of $7,814.00 and Lornell Scott, in the amount of $274.00. However, the jury apportioned the fault for the damages as 60 percent to the Scotts and 40 percent to Robertson. ³ Thus, the trial court found that the plaintiffs were entitled to a recovery of $3,235.00.

The Scotts appealed; Robertson cross-appealed.

I. THE ADMISSIBILITY OF THE CRIMINAL CONVICTION

Whether the criminal conviction of a party following trial and arising from the same facts as a later civil action, may be admitted at a civil trial as evidence of a material fact on which it necessarily rests ⁴ is an issue of first impression in Alaska. ⁵ The common law rule has been that such convictions are not competent evidence of the facts supporting them. ⁶ The various reasons supporting this rule may be articulated as follows:

(1) The use of judgment of a conviction which is technically hearsay; ⁷

(2) The possibility that the defendant may not have effectively litigated the criminal issue because of lack of motive or opportunity to defend; ⁸

(3) The probability that the issues in both cases would not be identical; ⁹

(4) The fear that a party may be able to "make" evidence for himself at the criminal trial which can be of direct benefit to him financially in a subsequent civil action; ¹⁰ (5) The fact that juries may be unable to comprehend the difference between a prior judgment offered as mere evidence and one offered as conclusive proof of the facts necessarily proved; ¹¹ and

(6) The lack of mutuality of parties. ¹²

The trend in recent years, however, has been to admit criminal convictions as evidence in subsequent civil trials where: (1) the prior conviction is for a serious criminal offense; ¹³ (2) the defendant in fact had a full and fair hearing; ¹⁴ and (3) it is shown that the issue on which the judgment is offered was necessarily decided in the previous trial. ¹⁵ We adopt this position for use in Alaska.

The three conditions which we have set forth as prerequisites to the use of a criminal conviction in a subsequent civil case arising from the same set of facts are designed to protect the defendant against the introduction of unduly prejudicial criminal convictions. We first require that the prior conviction be for a serious offense in order that the accused have the motivation to defend himself fully. ¹⁶ A driver who pleads guilty to a minor traffic violation may have decided merely that the costs of defending outweigh the burden of having such a conviction on his record. Such a conviction is not credible evidence of guilty conduct. Generally, any offense punishable by imprisonment should be considered to be a serious offense. ¹⁷

The requirement of a full and fair hearing is designed to prevent the introduction of the prior conviction where there is substantial question as to its validity. Normally, a criminal conviction, incorporating the high burden of proof on the state and the stringent safeguards against violations of due process, should be admissible absent strong showing of irregularity. Generally, no conviction entered without representation of counsel ought to be considered as evidence in a subsequent trial. ¹⁸

The third prerequisite would preclude the use of a conviction where the fact sought to be introduced had not necessarily been determined at the prior trial.

In the present case, we find that the conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, ¹⁹ a crime for which the legislature has determined a maximum penalty of imprisonment of one year and a fine of $1,000.00 for the first offense, constitutes a serious crime for purposes of the newly-articulated test. ²⁰ In addition, Scott was represented by counsel, and there was no indication that the defendant did not have a full and fair hearing on the prior OMVI charge. As a last consideration, it is clear that the jury necessarily determined that the defendant was operating a motor vehicle while under the influence of an intoxicant; otherwise it could not have returned a verdict of guilty to the charge. ²¹

We find no error in the trial court's admission of the prior conviction as evidence of alcoholic influence, and we additionally find that evidence material to the question of negligence.

We further reach the question of whether the conviction to be admitted should be introduced as some evidence of the facts necessarily proved or as conclusive proof of those facts. ²² The main danger of the conclusive use of prior convictions cautioned against by commentators is the risk that the jury may not readily grasp the differences in issues between the prior criminal and subsequent civil cases and may take the prior conviction as presumptive of complete liability in the civil action. ²³ Such distinctions, however, are routinely made clear to juries in the form of proper instructions. While a conviction for driving while under the influence of intoxicants, such as in this case, can be conclusive as to the fact of driving while intoxicated, it does not foreclose the jury's ultimate determination of civil liability. Also, the jury, acting under proper instructions of comparative negligence adopted for use in Alaska in Kaatz v. State, 540 P.2d 1037, 1049-50 (Alaska 1975), ²⁴ would still be able to apportion negligence between the plaintiff and the defendant.

There may be some justification for regarding the conviction differently in jurisdictions which do not insure rights to jury trial and to counsel for misdemeanor prosecutions, but a defendant in Alaska is entitled to those rights. ²⁵ Under analogous situations, holdings of a court in prior civil litigation are regarded as conclusive under the doctrine of collateral estoppel. ²⁶ Considering the protections of the defendant and the higher burden placed on the prosecution, there would appear to be even more reason for accepting the results of a criminal conviction.

We see no reason why prior convictions, admitted with the safeguard required above, should not be considered conclusive of the facts necessarily determined. ²⁷ Instructions to the jury should include exactly which facts were necessarily determined in the prior conviction ²⁸ and what facts remain for the jury to decide.

II. ATTORNEY'S FEES

The remaining issue on appeal involves attorney's fees, an issue on which both parties claim error. As mentioned previously, the defendant offered a settlement of $4,000.00 on May 11, 1976. This exceeded the amount of the judgment eventually awarded plaintiffs in the sum of $3,235.00.

The defendant moved for costs and attorney's fees under Civil Rule 68, ²⁹ and submitted bills of costs and an affidavit itemizing attorney's fees totaling $14,053.12 incurred subsequent to the offer of judgment. ³⁰ The court found that the defendant enjoyed the status of "limited prevailing party" under Rule 68 in that the plaintiffs' actual award of $3,235.00 was less than the refused offer of judgment.

The court awarded $1,000.00 to the plaintiffs for fees incurred prior to the offer of settlement, to be set off against the defendant's fees, which were fixed at $5,000.00. With the costs previously fixed, ³¹ the plaintiffs were responsible for $8,013.00 to be paid to defendant. This would be set off against the jury's award of $3,235.00 to require that the Scotts pay Robertson $4,778.00.

Robertson argues that he should have been granted his actual attorney's fees $14,053.12. The Scotts argue that the actual award of $5,000.00 to the defendant was excessive.

A party recovering a money judgment is normally awarded attorney's fees in accordance with the schedule of Civil Rule 82 concerning the allowance to the prevailing party. ³² That rule also provides:

Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount. (Civil Rule 82(a)(1))

However, under Civil Rule 68, an offeree who finally obtains a judgment less favorable than the offer ...