Opinion
No. 26500-5-III.
December 23, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-2-04265-2, Robert D. Austin, J., entered September 14, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
This appeal follows an automobile accident involving three cars. The appellants here, plaintiffs below (the driver of the first car and her spouse), appeal the trial court's refusal to grant a new trial following a modest jury verdict in their favor against only one of the defendant drivers (the driver of the second car). The respondent, a defendant below (and driver of the third car), changed her testimony from earlier testimony (given during discovery). The respondent's testimony before trial would have encouraged a finding of a single impact to the plaintiff's car; whereas her testimony at trial suggested two impacts. The court's refusal to grant a new trial was within its discretion, and we affirm the decision to deny a new trial. We also find no error in the court's jury instructions and affirm the judgment.
FACTS
Michelle McHugo stopped her car for a stop light. Ryan Griffith stopped behind her. The light turned green, and traffic in front of Ms. McHugo did not move forward. Mr. Griffith collided with the back of Ms. McHugo's car. Sharon Melton approached the intersection behind Mr. Griffith and struck Mr. Griffith's car. Ms. McHugo contends that Ms. Melton's collision with Mr. Griffith's car caused Mr. Griffith's car to strike Ms. McHugo's car a second time.
The suit proceeded to jury trial. Ms. Melton testified that she did not stop her car before the impact with Mr. Griffith's car and that she applied the brakes only after the impact. Ms. Melton's trial testimony differed from her pretrial deposition and her responses to interrogatories. There, she had stated that she had come to a complete stop and had been traveling at approximately five miles per hour at the time of impact. The jury returned a verdict of $5,805.45 for Ms. McHugo, concluding that, while both Ms. Melton and Mr. Griffith negligently operated their vehicles, only Mr. Griffith's conduct was a proximate cause of Ms. McHugo's injuries.
The McHugos moved for a new trial. Ms. McHugo argued that Edward Pool, an expert accident reconstructionist who Ms. McHugo consulted before trial, would have testified that it was "probable" that Ms. McHugo's truck had two impacts had Ms. Melton's pretrial deposition testimony and interrogatory responses been the same as her trial testimony. The court denied the motion for a new trial. The McHugos timely appealed.
DISCUSSION
New Trial — Newly Discovered Evidence, Misconduct, Substantial Justice
Ms. McHugo assigns error to the trial court's refusal to grant her a new trial based on the inconsistency between Ms. Melton's trial testimony and her responses to pretrial discovery on whether there were two impacts.
The announced standard of review for denial of a motion for a new trial is abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000).
The McHugos moved for a new trial under CR 59(a)(1), (2), (3), (4), (5), (8), and (9) and CR 60(b)(1), (3), (4), and (11). Clerk's Papers (CP) at 125. On appeal, the McHugos isolate their claims of error to the trial court's denial of a new trial on the basis of CR 59(a)(1) ("[i]rregularity in the proceedings of . . . adverse party"), CR 59(a)(4) ("[n]ewly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial"), and CR 59(a)(9) ("substantial justice has not been done").
CR 59(a), in relevant part, permits a trial court to vacate a verdict and grant a new trial on the following grounds: (1) irregularity in the proceedings; (2) misconduct of the prevailing party or jury; (3) accident or surprise that could not have been avoided by ordinary prudence; (4) material, newly discovered evidence that could not have been uncovered through reasonable diligence in time for trial; (5) damages so extreme in either direction that they indicate verdict based on passion or prejudice; (8) an error of law that occurred at trial and to which the moving party objected; or (9) absence of substantial justice.
CR 60(b), in relevant part, permits a court to grant a motion for relief from judgment or order on the following grounds: "(1) [m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order; . . . (3) [n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); . . . (4) [f]raud . . ., misrepresentation, or other misconduct of an adverse party; . . . or (11) [a]ny other reason for justifying relief from the operation of the judgment."
Newly Discovered Evidence. "[E]vidence presented for the first time in a motion for reconsideration without a showing that the party could not have obtained the evidence earlier does not qualify as newly discovered evidence." In re Marriage of Tomsovic, 118 Wn. App. 96, 109, 74 P.3d 692 (2003); cf. West v. Thurston County, 144 Wn. App. 573, 579-80, 183 P.3d 346 (2008) (finding that the trial court appropriately denied reconsideration where the moving party did not show why he could not have obtained the proffered documents earlier). Ms. McHugo argues that the trial court's ruling created an unreasonable expectation that she challenge Ms. Melton's credibility because Ms. Melton's trial testimony conflicted with Ms. Melton's pretrial deposition testimony and, more importantly, Ms. Melton's trial testimony helped Ms. McHugo.
But Ms. McHugo does not show why she could not have "discovered" Mr. Pool's opinion evidence earlier than the posttrial motion for reconsideration. And, moreover, not impeaching Ms. Melton by reference to her deposition was in fact a strategic decision. The court did not abuse its discretion in denying a new trial on the basis of CR 59(a)(4). See West, 144 Wn. App. at 580.
Misconduct and Substantial Justice. The trial judge has the discretion to order or deny a new trial after consideration of the appropriate factors, including "'the complexity of the issues, the length of the trial, the degree and nature of the prejudicial incidents, the nature and amount of the verdict, the cost of retrial, the probable results, the desirability of concluding litigation, and such other circumstances as may be apropos to the particular situation.'" Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968) (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 441, 397 P.2d 857 (1964)). Here, the trial judge did consider the nature and extent of Ms. Melton's misconduct and its relationship to the fairness of the trial that Ms. McHugo received. See CP at 420-24. And Washington case law supports finding a waiver in similar circumstances. See Nelson v. Martinson, 52 Wn.2d 684, 689, 328 P.2d 703 (1958). The trial court's decision to deny Ms. McHugo's motion for a new trial is not an abuse of discretion. The court reasonably found that Ms. McHugo waived the inconsistency here by failing to bring the inconsistency to the forefront before the case was submitted to a jury. Failure To Define Disability Ms. McHugo next assigns error to the court's refusal to instruct the jury on her proposed definition of disability as "restrictions, limitations, or impairments" to one's work, social, family, or recreational activities. See Report of Proceedings at 1123-24.
Whether given jury instructions are an accurate statement of the law is a question of law that we review de novo. Thompson v. King Feed Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105 P.3d 378 (2005). A trial court commits reversible error when its instructions contain an erroneous statement of the applicable law that prejudices a party. Id. We generally review a trial court decision to give or not to give certain instructions for abuse of discretion. Goodman v. Boeing Co., 75 Wn. App. 60, 68, 877 P.2d 703 (1994), aff'd, 127 Wn.2d 401, 899 P.2d 1265 (1995). "'Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)).
The trial court here did not abuse its broad discretion to determine the number and specific language of the jury instructions and whether definitional instructions were necessary. See Bodin, 130 Wn.2d at 732. The relevant instruction, jury instruction 11 on the appropriate measure of damages (CP at 104), meets the three requirements for a sufficient instruction. It allows all parties to argue their theory of the case; Ms. McHugo argued and presented evidence on how the car accident has limited her personal and family life.
Furthermore, instruction 11 does not misstate the law by limiting compensable disability damages to work-related loss. To the contrary, the instruction tells the jury that it should consider noneconomic damages including "[t]he loss of enjoyment of life experienced and with reasonable probability to be experienced in the future," "[t]he disability experienced and with reasonable probability to be experienced in the future," as well as "[t]he loss of earning capacity." CP at 104. Ms. McHugo relies on Parris v. Johnson for her argument that disability's general meaning is limited to work capacity. Parris v. Johnson, 3 Wn. App. 853, 859, 479 P.2d 91 (1970). However, that case mentions in dicta that although the term "disability" is frequently conceived of as a restriction on one's capacity to work, non-work-related disabilities are legally compensable despite being harder to translate into pecuniary loss. Id. at 859-60. Instruction 11 sufficiently informs the jury of the applicable law.
We affirm the judgment and the order denying the motion for a new trial.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J. and Brown, J., concur.