Gragg v. Hutchinson

176 P.3d 407, 217 Or. App. 342, 2007 Ore. App. LEXIS 1846
CourtCourt of Appeals of Oregon
DecidedDecember 26, 2007
Docket02C19748; A124493
StatusPublished
Cited by7 cases

This text of 176 P.3d 407 (Gragg v. Hutchinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gragg v. Hutchinson, 176 P.3d 407, 217 Or. App. 342, 2007 Ore. App. LEXIS 1846 (Or. Ct. App. 2007).

Opinion

ROSENBLUM, J.

Plaintiff appeals an order granting defendant’s motion for a new trial after the jury had returned a verdict in favor of plaintiff. We reverse and remand with instructions to the trial court to reinstate the general judgment.

The material facts are undisputed. Plaintiff’s truck was stopped at a drive-through window when a car'driven by defendant’s mother, decedent,1 struck the rear of his truck. Plaintiff sued, alleging that decedent negligently caused the accident and that plaintiff suffered injuries to his shoulders, back, and neck as a result.

The case was tried to a jury. Because defendant admitted liability, the jury was asked only to find whether plaintiff was injured and, if so, to determine the amount of damages to which plaintiff was entitled. During voir dire, plaintiffs counsel told the jury panel that the case “involve [d] a personal injury, fortunately not a real serious one, but one that nevertheless involves some out-of-pocket expenses and some — and a permanent injury,” and that “the evidence is-going to be that [plaintiff has] been out of pocket over $5,000 in medical bills and he’s got a permanent injury.” The latter statement prompted one potential juror to ask whether “this person”2 was insured, and the following exchange occurred:

“[PLAINTIFF’S COUNSEL]: That’s something— that’s something the Court does not allow us to tell you one way or the other.
“JUROR: But does insurance handle some (inaudible).
“[PLAINTIFF’S COUNSEL]: We can’t tell you that, you’re not allowed to — -you’re allowed — you’re supposed to [345]*345make a decision without regard to that. I’m actually the one that’s supposed to ask the questions.
“JUROR: (Laughing) (inaudible).”

After the jury was selected, plaintiffs counsel delivered his opening statement, again characterizing the case as “not involving a lot of money but some out-of-pocket — significant out-of-pocket expense.” During his opening statement, plaintiffs counsel told the jury that plaintiff “has spent a little over $5,200 in medical bills from a year after the injury,” and that “the big problem is he’s had a $5,200 out-of-pocket expense.” Plaintiffs counsel concluded his opening statement by describing the case as involving a “very simple injury but it is an out-of-pocket expense and it’s going to continue to be an out-of-pocket expense and that’s why [plaintiff! is here.”

Plaintiff testified at trial that he paid over $5,000 in medical expenses “out of [his] pocket.”

“Q Now, do you remember — do you know how much you paid in medications yourself since a year following the injury to date, do you know the exact figure?
“A I do not know the exact figure, but it’s well over $5,000 out of my pocket.
«íjí ‡ ifc ‡
“Q And were there any other costs at all [other than prescriptions and medical treatment]?
“A Yes. There’s a cost here [on Exhibit 11] related to obtaining records. I believe that’s for the trial, but I could be mistaken. That’s [$]6.50 to Dr. Takacs. It’s $25 for Dr. Silver’s records, and $175 for his last report for a total of [$]206 and change. That [exhibit] shows this as being out of my pocket $5,206.59.”

Outside the presence of the jury, defendant indicated her intention to cross-examine plaintiff to demonstrate that the amounts that plaintiff claimed were paid “out of [his] pocket” were inaccurate because medical insurance covered a portion of the expenses. Plaintiff objected on the ground that Oregon’s collateral source rule, codified in ORS 31.580, prohibited that line of questioning. The trial court sustained the objection and ruled that defendant was not permitted to [346]*346cross-examine plaintiff about his insurance coverage or benefits he may have received pursuant to that coverage.

During closing arguments, plaintiffs counsel explained that, if the jury determined that plaintiff was indeed injured in the accident, they must then consider “what the law calls damages or out-of-pocket costs for compensation.” The jury returned a verdict for plaintiff and awarded $20,000 in economic damages and $2,245 in non-economic damages, and the court issued a general judgment to that effect.

Defendant filed a motion for a new trial pursuant to ORCP 64 B(6), which permits the granting of a new trial on the basis of “[e]rror in law occurring at the trial and objected to or excepted to by the party making the application.” Defendant again took the position that it was error not to allow cross-examination of plaintiff regarding insurance payments that he had received for his out-of-pocket expenses and argued that evidence of collateral benefits was relevant to impeach plaintiffs testimony that he paid his medical bills himself. Plaintiff replied that such a line of questioning would have violated ORS 31.580. The trial court granted the motion without explanation, and plaintiff appeals.3

At the outset, we note that the parties disagree about the appropriate standard of appellate review of an order granting a new trial based on legal error committed at trial. Plaintiff urges us to review the trial court’s determination for legal error, arguing that the trial court committed an error of law when it held after the trial that defendant should have been able to introduce evidence of collateral benefits during plaintiffs cross-examination. See Bennett v. Farmers Ins. Co., 332 Or 138, 151, 26 P3d 785 (2001) (“When the trial court’s order of a new trial is based on an interpretation of law, we review that order for errors of law.”). Defendant urges us to review the trial court’s determination for abuse of discretion. See Schacher v. Dunne, 109 Or App 607, 820 P2d 865 (1991), rev den, 313 Or 74 (1992) (deferring to the trial [347]*347court’s discretion to determine prejudice when affirming a grant of a motion for a new trial).

Both standards of review play a role in our analysis. We will affirm an order granting a new trial pursuant to ORCP 64 B(6) if any of the grounds argued in support of the motion is well-taken and the error was prejudicial. Williams v. Laurence-David, 271 Or 712, 718, 534 P2d 173 (1975). Each prong of this two-part inquiry requires us to employ a different standard of review. We first consider whether the grounds for the motion are well-taken; that is, we must determine if the trial court overruled an objection or exception that it should have sustained or sustained an objection or exception that it should have overruled. Accordingly, we review that ruling for errors of law, giving no deference to the trial court’s decision. See Waddill v. Anchor Hocking, Inc., 190 Or App 172, 177, 78 P3d 570 (2003).

If we determine that the trial court committed legal error, we then consider whether that legal error prejudiced the rights of the moving party.

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Cite This Page — Counsel Stack

Bluebook (online)
176 P.3d 407, 217 Or. App. 342, 2007 Ore. App. LEXIS 1846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gragg-v-hutchinson-orctapp-2007.