Warner v. Southwest Desert Images, LLC

• Decision Date: 28 January 2008
• Docket Number: No. 2 CA-CV 2007-0041.,2 CA-CV 2007-0041.
• Citation: 218 Ariz. 121,180 P.3d 986
• Parties: Catherine E. WARNER, Plaintiff/Appellant, v. SOUTHWEST DESERT IMAGES, LLC, Barbara Jean Hoggatt, David J. Hoggatt, Robert A. Wilson, Dawn Wilson, and Sierra Pest/Termite Control, Inc., Defendants/Appellees.
• Court: Arizona Court of Appeals

180 P.3d 986

218 Ariz. 121

Catherine E. WARNER, Plaintiff/Appellant, v. SOUTHWEST DESERT IMAGES, LLC, Barbara Jean Hoggatt, David J. Hoggatt, Robert A. Wilson, Dawn Wilson, and Sierra Pest/Termite Control, Inc., Defendants/Appellees.

No. 2 CA-CV 2007-0041.

Court of Appeals of Arizona, Division 2, Department A.

January 28, 2008.

Law Offices of Shane L. Harward, P.L.C. by Shane L. Harward, Scottsdale, Attorney for Plaintiff/Appellant.

Holloway Odegard Forrest & Kelly, P.C. by Peter C. Kelly, II and Larry J. Wulkan, Phoenix, Attorneys for Defendants/Appellees.

OPINION

BRAMMER, Judge.

¶ 1. Appellant Catherine Warner appeals from the trial court's dismissal of her negligence claims against appellees David Hoggatt and Barbara Hoggatt (Hoggatt), Robert Wilson and Dawn Wilson (Wilson), and Sierra Pest/Termite Control, Inc. (Sierra Pest).¹ She also asserts the trial court erred by refusing to give her requested jury instruction on punitive damages, by granting the appellees' motion in limine concerning evidence of her workers' compensation benefits, by failing to answer jury questions asked during trial, and by awarding the appellees sanctions pursuant to Rule 68, Ariz. R. Civ. P. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

Factual and Procedural Background

¶ 2. Appellee Southwest Desert Images, LLC (SDI) was hired by Warner's employer, Aegis Communications (Aegis), to perform landscaping and weed control. On September 29, 2003, SDI employee Hoggatt began spraying an herbicide on weeds on the property around Aegis's building. The parties dispute whether other SDI employees had been present and engaged in spraying. After approximately an hour and a half of spraying, Hoggatt was informed that people inside Aegis's building were complaining. The herbicide spray had entered the building through its air conditioning system and had circulated throughout the building. After being informed of the situation, Hoggatt stopped spraying. Emergency services arrived as the building was being evacuated. Employees in the building complained of respiratory problems and itching and burning eyes.

¶ 3. Prior to and during the evacuation, Warner began having difficulty breathing, was coughing violently, and felt burning in her eyes, nose, and throat. As she exited the building, Warner began to feel faint and felt "extreme chest pain" and heart palpitations. Warner had had heart attacks in January 1998 and April 2003, and had undergone heart surgery in May 2003. Warner apparently had been instructed to carry nitroglycerine and take it if she felt angina, or heart pain, so she took some after she left the Aegis building. She was then transported by ambulance to the hospital, where she was treated and released after about four hours. She returned to Aegis and drove home.

¶ 4. Warner testified she continued to have angina and palpitations that night. She visited her doctor two days later. He concluded she had suffered a heart attack the day of the evacuation. Warner continued to have a "scratchy throat and watery eyes" for about ten days after the incident, continued to suffer from chest pain, balance problems, shortterm memory loss and other neurological problems, nausea, muscle aches, and fatigue, and has not worked since the incident. Warner had heart surgery that October, and again in January 2004. She suffered another heart attack shortly after the latter surgery, which was followed by emergency surgery and further surgery in September 2004. Warner had a pacemaker implanted in June 2005.

¶ 5. Warner sued SDI for negligence in September 2004, later amending her complaint to include as defendants Hoggatt, Wilson, and Sierra Pest, Wilson's employer. She alleged SDI was a "branch office" of Sierra Pest and operated under Wilson's qualifying party license,² and thus that Wilson and Sierra Pest were liable for Hoggatt's negligent herbicide spraying and "for the [negligent] supervision and training of ... Hoggatt." SDI admitted it operated under Wilson's qualifying party license.

¶ 6. The trial court dismissed Wilson and Sierra Pest from the action prior to trial because Warner had not filed an expert opinion affidavit as required by A.R.S § 12-2602. The court granted Warner's motion for summary judgment on Hoggatt's negligence and SDI's corresponding vicarious liability. Accordingly, those issues were not disputed at trial. Nonetheless, during trial, the court entered a directed verdict in favor of Hoggatt, leaving SDI as the only defendant.

¶ 7. The jury found SDI to be completely responsible for the injuries Warner suffered by inhaling the herbicide. The jury attributed no responsibility to Warner and her doctor, who had been designated as a nonparty at fault. It awarded Warner $3,825 in compensatory damages and costs against SDI. But, the court granted the appellees' motions for offer-of-judgment sanctions pursuant to Rule 68, Ariz. R. Civ. P.³ The trial court awarded the appellees $71,401.38 jointly after accounting for the Rule 68 sanctions, Hoggatt's, Wilson's, and Sierra Pest's costs pursuant to A.R.S. § 12-341, and deducting Warner's damage award and costs. This appeal followed.

Discussion

Hoggatt Dismissal

¶ 8. On the last day of trial, the court entered a directed verdict in favor of Hoggatt because "the evidence [wa]s undisputed that Mr. Hoggatt [had] acted within the scope of his employment for [SDI]," and, thus, that SDI was "clearly liable in this situation for whatever damages the jury does find in this matter."⁴ There was no dispute at trial that Hoggatt had been negligent; the court had previously granted Warner's motion for partial summary judgment on that issue and on SDI's liability under the doctrine of respondeat superior for Hoggatt's negligence. See Smith v. Am. Express Travel Related Servs. Co., 179 Ariz. 131, 135, 876 P.2d 1166, 1170 (App.1994) ("According to the doctrine of respondeat superior,`an employer is vicariously liable ... for the behavior of an employee who was acting within the course and scope of his employment.'"), quoting Pruitt v. Pavelin, 141 Ariz. 195, 205, 685 P.2d 1347, 1357 (App.1984); see generally Restatement (Third) of Agency §§ 7.03, 7.07 (2006). The jury was instructed that "[i]t is undisputed that the manner in which the herbicide was applied to the Aegis property caused it to be circulated through the building." "We review the grant of a motion for directed verdict de novo and consider the evidence in the light most favorable to the non-moving party." Johnson v. Pankratz, 196 Ariz. 621, ¶ 4, 2 P.3d 1266, 1268 (App. 2000).

¶ 9. We agree with Warner that "[t]here [wa]s no legal basis for the court's decision to dismiss Hoggatt from the action." "It is well-established law that an agent will not be excused from responsibility for tortious conduct [merely] because he is acting for his principal." Griffith v. Faltz, 162 Ariz. 599, 600-01, 785 P.2d 119, 120-21 (App.1990); see also Restatement (Third) of Agency § 7.01 (2006) ("An agent is subject to liability to a third party harmed by the agent's tortious conduct. Unless an applicable statute provides otherwise, an actor remains subject to liability although the actor acts ... within the scope of employment.").

¶ 10. Hoggatt cites no authority suggesting this rule should not apply in this case. He does, however, argue the error was harmless. "In order to justify reversal, ... the trial error must be prejudicial to the substantial rights of the appealing party." Walters v. First Fed. Sav. & Loan Ass'n of Phoenix, 131 Ariz. 321, 326, 641 P.2d 235, 240 (1982). Hoggatt asserts Warner was not prejudiced because "[t]he jury apportioned one hundred percent of the fault to SDI. Adding other possible parties to the jury verdict form would not have changed the outcome of this case." We agree that including Hoggatt as a defendant throughout the trial could not have changed Warner's damage award, and Warner does not argue otherwise. Nor is there a need for the jury to apportion fault between Hoggatt and SDI — the liability of those parties is joint and several. See A.R.S. § 12-2506(D)(2) (when one party "was acting as an agent or servant" of another party, parties' liability is joint and several).

¶ 11. That the error does not warrant a new trial, however, does not mean it was not prejudicial to Warner. She has a right to recover her damages from Hoggatt, and his improper dismissal has deprived her of that right.⁵ Accordingly, we reverse the trial court's grant of a directed verdict in Hoggatt's favor and amend the judgment in Warner's favor to show it is against Hoggatt as well.

Wilson and Sierra Pest Dismissals

¶ 12. Wilson and Sierra Pest filed a motion to dismiss Warner's claims against them, asserting that, because Wilson is a licensed professional, expert testimony Was required to establish Wilson had breached the relevant standard of care. Thus, Wilson and Sierra Pest argued, Warner was required by A.R.S. § 12-2602(B) to file a "preliminary expert opinion affidavit," and her failure to do so required the trial court to dismiss without prejudice Warner's claims pursuant to § 12-2602(F) against Wilson and Sierra Pest, as Wilson's employer. The court denied the motion to dismiss, reasoning that § 12-2602

only grants the Court the power ... to dismiss the cause of action ... against the licensed professional after the claimant has certified that a preliminary expert opinion affidavit is necessary and fails to timely file ... the same or the Court has ordered the claimant to file ... a[n affidavit] and that party has failed to timely [do so].

¶ 13. Wilson and Sierra Pest subsequently moved the trial court to order Warner to file a preliminary expert opinion affidavit. Although Warner had yet to respond to the motion, the court granted it. Eight days later the court entered that order and because Warner had not yet filed an expert affidavit, Wilson and Sierra Pest renewed...