Woosley v. State Farm Ins. Co.

Citation117 Nev. 182,18 P.3d 317
Decision Date06 March 2001
Docket NumberNo. 33647.,33647.
PartiesKaren L. WOOSLEY, as Guardian AD Litem of Zachary C. Adams, A Minor Child; and Dorothy B. Adams, Individually, as Guardian AD Litem of Whitney Adams, A Minor, and on Behalf of the Estate of Douglas Adams, Deceased, Appellants, v. STATE FARM INSURANCE COMPANY, Respondent.
CourtSupreme Court of Nevada

Curtis B. Coulter, Reno, for Appellant Woosley.

Leverty & Associates and Matthew L. Sharp, Reno, for Appellant Adams.

Burton Bartlett & Glogovac, Reno, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

SHEARING, J.

This is an appeal from a judgment following a jury verdict and the district court's denial of a motion for a new trial in an action for breach of contract to collect uninsured motorist benefits. Douglas Adams was killed in a car accident caused in part by the alleged negligence of an unknown driver. Adams' automobile insurance policy permitted his family (appellants) to apply for uninsured motorist benefits under the policy. Respondent, State Farm Insurance Company (State Farm), denied appellants' application for uninsured motorist benefits pursuant to the policy, and appellants filed an action for breach of contract. A jury returned a verdict for State Farm, and the district court entered judgment in accordance with the verdict. The district court subsequently entered an order denying appellants' motion for a new trial.

Appellants appeal, claiming the district court erred in entering the judgment and abused its discretion by denying the motion for a new trial in light of its failure to give a res ipsa loquitur instruction and a mistaken and erroneous comparative negligence instruction. We conclude that the evidence adduced at trial did not support the proffered res ipsa loquitur instruction in light of the evidence of Adams' comparative negligence. However, res ipsa loquitur as adapted in accordance with the current comparative negligence scheme should have been considered by the jury. We therefore remand this case to the district court for further proceedings consistent with this opinion.

FACTS

On May 20, 1994, Douglas Adams was killed in an automobile accident on Highway 395 in Reno when he swerved to avoid a ladder that had fallen in the middle of his lane and collided with a utility truck stopped in the emergency lane. Pursuant to Adams' State Farm automobile insurance policy, appellants filed a claim to collect uninsured motorist benefits, asserting that Adams' death was caused by the negligence of an unknown driver (John Doe) who had dropped the ladder. State Farm refused to pay the benefits.

Appellants filed a complaint against State Farm for breach of contract, bad faith, breach of the implied covenant of good faith and fair dealing and unfair trade practices.1 The parties agreed to dismiss the breach of the implied covenant of good faith and fair dealing claim without prejudice. Judge Peter I. Breen severed and stayed the bad faith claim and other extra-contractual claims, and the parties proceeded to trial on the breach of contract claim only.

At trial, appellants argued that they were entitled to uninsured motorist benefits under Adams' policy because the accident was substantially caused by the negligence of John Doe when he dropped the ladder in the middle of the highway lane.2 State Farm countered that appellants were not entitled to the coverage because Adams' contributory negligence exceeded that of John Doe, therefore barring the claim for "uninsured motorist" benefits.3 Appellants put forth evidence implying the negligence of John Doe and attempted to rely on the doctrine of res ipsa loquitur in support of their claim of negligence against John Doe. To prevail on their breach of contract claim and recover uninsured motorist benefits, appellants had to prove the uninsured motorist was negligent and that negligence caused Adams' death.

At trial, witnesses testified about the events leading up to the accident. Adams was driving southbound in the left lane on Highway 395 in Reno, maintaining a speed of approximately fifty-five to sixty-five miles per hour with the flow of traffic. He encountered a ladder lying in the left lane, extending partially into the left emergency lane, and a Washoe Keystone utility truck parked in that emergency lane. Approaching the ladder, he swerved to the left into the emergency lane to avoid the ladder, noticed the truck blocking his path, and swerved back to the right. He was unable to avoid the ladder or the truck, and collided with the ladder, the rear end of the truck and finally the cement median. Adams died as a result of the accident; Adams' passenger, his son Zachary, survived.

Witnesses testified that Adams was speeding slightly that day. They also testified to the presence of another car in the adjacent right lane, although they disagreed whether Adams could have moved to the right to avoid the ladder. Further testimony indicated that numerous drivers before Adams had seen the ladder in the road previously and had either braked or changed lanes to avoid it, without incident. Police Officer Jerry Seevers testified that the primary cause of the accident was the ladder in the road. He further stated that the ladder was visible from a slight distance, that it could be driven over, and that Adams' failure to stay in his lane was an additional cause of the accident. Appellants conceded at trial that Adams may have been partially negligent, and State Farm argued that Adams' speeding and inappropriate swerving caused the accident.

John Menges testified that he observed an F-250 Ford pickup truck traveling south-bound in the left lane on Highway 395 a few minutes before the accident. The truck had a ladder attached to the roof that was not securely fastened. Menges observed the ladder fall off the truck into the left lane, its location when Adams came across it. Menges followed the driver (John Doe), flagged him over at the South Virginia Street exit, and informed him that the ladder had fallen from his truck. Menges testified that John Doe asked whether the ladder had caused an accident, to which Menges responded "no." Menges also told him to return to get the ladder. Menges last observed John Doe turning towards McCarren Boulevard, as if to return to Highway 395. Menges could not remember the Ford's license plate number and only recalled that the truck had silver lettering from a roofing company on the side. Neither the Nevada Highway Patrol nor Adams' wife located John Doe or his truck.

At the close of evidence, appellants requested a jury instruction on res ipsa loquitur. The proposed instruction read:

On the issue of negligence, one of the questions for you to decide in this case is whether the accident occurred under the following conditions:
First, that it is the kind of accident that ordinarily does not occur in the absence of someone's negligence;
Second, that it was caused by an agency or instrumentality over which John Doe had the exclusive right of control originally, and which was not mishandled or otherwise changed after John Doe relinquished control; and
Third, that the accident was not due to any voluntary action or contribution on the part of the plaintiffs which was the responsible cause of his injury in that plaintiffs are not in a position to know what specific conduct caused the accident, whereas the one in charge of the instrumentality may reasonably be expected to know and be able to explain how the accident was caused, or at least be able to show that no failure of duty on his part was a cause.
If you should find all these conditions to exist, you are instructed as follows:
You must find from the happening of the accident involved in this case that a cause of the occurrence was some negligent conduct on the part of John Doe.

The district court denied the instruction, concluding that because Adams was contributorily negligent, he failed to meet the requirements of the third element, and accordingly a res ipsa loquitur instruction was unsupported by the evidence. Appellants objected.

When the district court judge read the remaining instructions to the jury, he included several instructions stating that appellants needed to prove the negligence of John Doe, and that the jury could weigh the comparative negligence of John Doe and Adams in apportioning liability and damages. However, the district court stated in its instruction on comparative negligence that the jury should consider whether Adams' negligence was greater than or less than that of the "defendant," which in this case was State Farm, and not that of John Doe. The instruction provided:

Comparative negligence is negligence on the part of the decedent which, cooperating to some degree with negligence of another, helps in proximately causing the death.
The plaintiffs may not recover damages if the decedent's comparative negligence contributed more to his death than the negligence of the defendant. However, if the decedent was negligent, the plaintiffs may still recover a reduced sum, so long as the decedent's comparative negligence was not greater than the negligence of the defendant.

(Emphasis added.) Appellants failed to object to this misstatement in the instruction.

In closing arguments, both parties argued the comparative negligence of John Doe and Adams. Additionally, the special verdict form the jury received required the jury to apportion the relative fault between John Doe and Adams. Nowhere was State Farm mentioned by name as being a negligent party.

The jury returned a verdict for State Farm, and the court entered a judgment based on this verdict. Appellants subsequently filed a motion for new trial alleging that: (1) the district court erred in failing to give the res ipsa loquitur instruction in light of Nevada's comparative negligence statute; and (2) the district court committed reversible error by misstating the negligent parties in the comparative negligence instruction. The district court...

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