Wright v. Hiester Constr. Co. Inc
| Decision Date | 21 July 2010 |
| Docket Number | No. 4712.,4712. |
| Parties | Kenneth E. WRIGHT and Bonnie L. Wright, Appellants/Respondents,v.HIESTER CONSTRUCTION CO., INC., Respondent/Appellant,andDilia and Odin Painting Co., Respondent. |
| Court | South Carolina Court of Appeals |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Bradford N. Martin and Laura W.H. Teer, both of Greenville, for Appellants/Respondents.
Stephen L. Brown, Duke R. Highfield, and Russell G. Hines, all of Charleston, for Respondent.
J.J. Anderson and Eric M. Johnsen, both of Charleston, for Respondent/Appellant.
These cross-appeals arise from an action for damages relating to the destruction of a new home as the result of a fire. The homeowners, Kenneth E. and Bonnie L. Wright sued their contractor, Hiester Construction Company (Hiester), for breach of contract, contractual vicarious liability, and negligence. The Wrights also named Hiester's subcontractor, Respondent Dilia and Odin Painting Company (D & O), as a defendant, alleging causes of action for breach of warranty of workmanlike construction, negligence, and vicarious liability. The case was tried before a jury, which found for the defendants. The Wrights appeal the denial of their motions for judgment notwithstanding the verdict and a new trial. Hiester cross-appeals on the ground that the trial judge should have directed a verdict in its favor instead of submitting the case to the jury. We affirm.
In 2001, the Wrights and Hiester executed a contract drafted by Hiester under which Hiester would build a house for the Wrights in a gated community on Dataw Island.
Under the contract, Hiester was to assume “full responsibility for acts, negligence or omissions of all his subcontractors and their employees and for those of all other persons doing work under a contract for him.” In addition, Hiester was required to maintain liability insurance to cover workers' compensation and other personal injury claims and “for property damage that may arise out of work under this Contract, whether caused directly or indirectly by Contractor or directly or indirectly by a subcontractor.” The contract also required the Wrights to maintain liability insurance and property damage insurance at their own expense “on the work at the site to its full insurance value including interests of Owners, Contractor and subcontractors against fire, vandalism, and other perils ordinarily included in extended coverage.” It also provided that both parties would waive “all claims against each other for fire damage” covered by the property damage insurance that the Wrights were to maintain on the construction site.
Hiester began building the home in March 2001 and hired D & O as a subcontractor to stain some woodwork in the house. In September of that year, as construction neared completion, D & O sent three employees, Lizeth Torres, Manuel Garcia, and Oscar Garcia, to perform this task. In the early morning hours of Saturday, September 29, 2001, after the workers had spent several days in the house staining wood, a fire erupted, destroying the house.
The Wrights filed this lawsuit in May 2003. In their complaint, the Wrights claimed D & O's workers ignored well-known safety precautions by throwing used rags soaked with wood stain into a pile in a cardboard box that was left on the floor of the house after the workers left for the day. The Wrights further alleged the improper disposal caused the rags to combust, which in turn caused the fire. They sought damages of $474,000.
Both Hiester and D & O disputed the Wrights' allegations regarding the cause of the fire. In their depositions, both Manuel Garcia and Oscar Garcia claimed they put the rags in the trash in an outside dumpster. They further contended that, regardless of the cause of the fire, (1) the construction contract allocated the risk of fire damage to the Wrights and State Farm, their insurance carrier and (2) the Wrights and State Farm expressly waived any subrogation claim against them in the event State Farm was required to cover the loss.
The trial took place October 31 through November 3, 2005. The jury returned a verdict for Hiester and D & O. The Wrights moved for judgment notwithstanding the verdict or in the alternative for a new trial. The trial judge denied these motions, and the Wrights served their notice of appeal.1
I. Did the trial judge err in allowing evidence of insurance to come before the jury?
II. Should the trial have been bifurcated so that issues regarding insurance would have been separately presented to the jury only if the Wrights first received a verdict on either their breach of contract action or their negligence claim?
III. Did the trial judge commit reversible error in failing to give the jury the correct instruction regarding subrogation?
IV. Should liability have been found against Hiester as a matter of law based on (1) admissions by its president during his deposition, (2) written admissions during discovery, and (3) provisions in the contract under which Hiester assumed liability for its subcontractors' actions?
V. Were the Wrights entitled to judgment notwithstanding the verdict or a new trial based on the trial judge's refusal to admit into the evidence (1) the statements of D & O's workers and (2) testimony regarding their statements?
VI. Did the trial judge err in refusing to allow the fire chief to testify about statements allegedly made by D & O employees?
VII. Should the trial judge have allowed parol evidence to show the intent of the parties regarding the interpretation of the contract?
VIII. Were the Wrights entitled to judgment notwithstanding the verdict or a new trial based on the trial judge's failure to find as a matter of law that the waiver clause did not apply to D & O?
IX. Were the Wrights entitled to a judgment notwithstanding the verdict or a new trial based on (1) an improper closing argument by Hiester's attorney, (2) jury charges regarding negative inference and third-party beneficiary law, (3) communications from the trial judge to the jury regarding trial procedure or (4) an improper verdict form?
X. Did the trial judge err in denying the Wrights' motion to prevent an expert witness from testifying?
XI. Did the trial judge err in denying Hiester's motion for a directed verdict?
The trial judge must deny motions for directed verdict or judgment notwithstanding the verdict “when the evidence yields more than one inference or its inference is in doubt.” Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999). An appellate court “will reverse the trial court only when there is no evidence to support the ruling below.” Id. An appellate court “will not disturb a trial court's decision granting or denying a new trial unless that decision is wholly unsupported by the evidence or the court's conclusions of law have been controlled by an error of law.” Id.
Before the testimony began, the Wrights unsuccessfully moved in limine to exclude references to insurance. Citing Landry v. Hilton Head Plantation Property Owners Association, 317 S.C. 200, 452 S.E.2d 619 (Ct.App.1994), the Wrights argued that the availability of insurance was irrelevant for purposes of determining liability on their causes of action grounded in contract and negligence. On appeal, the Wrights contend the denial of their motion was error because the introduction of evidence of insurance provides an “unfair advantage due to the inherent prejudice against insurance companies.” 2 The Wrights further argue the admission of evidence of insurance and subrogation violated the collateral source rule.
In response, Hiester and D & O argue (1) the Wrights, in failing to object to the introduction of this evidence at trial, failed to preserve this issue for review and (2) this evidence was admissible because evidence of insurance in this case was not for the purpose of proving liability.
In a supplementary response to questions from this court during oral argument, counsel for the Wrights admitted the collateral source rule was not expressly raised during the trial, but further asserted the rule was “implied” in their objections to the reference to property insurance coverage. The Wrights, then, did not lay a proper foundation for this Court to address the issue of collateral estoppel. The trial judge's ruling was only “in reference to the insurance” and did not address the specific policy concern behind the collateral source rule. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (); Citizens & S. Nat'l Bank of S.C. v. Gregory, 320 S.C. 90, 92, 463 S.E.2d 317, 318 (1995) () (emphasis added).
As to the error preservation concern raised by Hiester and D & O, we hold the Wrights' failure to object to the introduction of the disputed evidence during the trial does not prevent this Court from considering the issue on appeal. The defendants referenced the issue of insurance in their opening statements, which appeared to have immediately followed argument on the pre-trial motions, and we do not fault the Wrights for addressing the issue themselves in an effort to mitigate the effect of the evidence. Cf. State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (...
To continue reading
Request your trial
-
Allegro, Inc. v. Emmett J. Scully, Synergetic, Inc.
...opinion to rely on facts or data that are not admitted in evidence or even admissible into evidence.” Wright v. Hiester Constr. Co., 389 S.C. 504, 523, 698 S.E.2d 822, 832 (Ct.App.2010) (citing Jones v. Doe, 372 S.C. 53, 62, 640 S.E.2d 514, 519 (Ct.App.2006)). However, Rule 703 does not all......
-
Coves Darden LLC v. Ibanez
...was correctly construed by the trial judge 'as seeking current information as of the time the question is asked and answered.'" Id. at 519, 698 S.E.2d at 830 (quoting Baughman, 306 S.C. at 108, 410 S.E.2d 541). This court also rejected the appellants' argument "the admissions made on behalf......
-
Coves Darden, LLC v. Ibañez
...SCRCP;Scott v. Greenville Hous. Auth., 353 S.C. 639, 648, 579 S.E.2d 151, 155-56 (Ct. App. 2003).In Wright v. Hiester Construction Co., 389 S.C. 504, 518, 698 S.E.2d 822, 829 (Ct. App. 2010), the appellants contended the trial court should have found the opposing party liable as a matter of......
-
Burke v. Health
...introduction of the evidence in question, the aggrieved party does not need to renew the objection.’ ” Wright v. Hiester Constr. Co., 389 S.C. 504, 514, 698 S.E.2d 822, 827 (Ct.App.2010) (quoting State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001)). In this case, AnMed not onl......