Kubista v. Romaine

538 P.2d 812, 14 Wash. App. 58, 1975 Wash. App. LEXIS 1577

• Court: Court of Appeals of Washington
• Decided: July 31, 1975
• Docket: 1317-2
• Status: Published

Opinions

Armstrong, C.J.

Plaintiff Raymond Kubista appeals from a judgment awarding him $25,000 as compensation for an injury to his lower back which the jury found was proximately caused by the negligence of defendant Paul Romaine. The primary contention advanced by the plaintiff in this appeal is that the sum awarded by the jury was inadequate because of the erroneous ruling of the trial court excluding, as irrelevant, proffered evidence to the effect that prior to this litigation, the plaintiff relied upon an adjuster for the negligent defendant’s insurance carrier who encouraged the plaintiff to go to school to learn a new trade, and advised the plaintiff that if he did so the insurance company would “take care of him.” We hold that the trial court erred by excluding the proffered evidence because in this case the evidence was relevant to plaintiff’s request for damages in the amount of wages he lost while attending school prior to trial.

On June 22, 1970, plaintiff Raymond Kubista was involved in a minor traffic accident as a result of the negligence of defendant Paul Romaine. At the time of the accident plaintiff sustained an injury to his back which did not appear to be serious, and he continued to satisfactorily work at his job as a shipfitter or boatbuilder. However, almost a year to the day after the original accident, plaintiff bent over to remove a rock while mowing his lawn and could not straighten up. A period of rather extensive medical treatment followed, including the performance of a spinal fusion in the lower lumbar area. A second operation was also necessary to remove painful scar tissue at the donor site on plaintiff’s hip.

During the course of the medical treatment, plaintiff was advised by his doctor that he would no longer be able to perform his job as a shipfitter, and that he would have to change his occupation. As a consequence, plaintiff considered either trying to find some lesser-paying work which he could physically perform, or going to school to learn a new trade. It was at this time, plaintiff alleges, that an adjuster for defendant’s insurance company advised plaintiff that if he did attend school the insurance company would take care of him.

It is undisputed that after his recuperation from the surgery performed on his back, plaintiff did begin attending school, and continued in school until the time of trial. It further appears that during this period, until March of 1973, the insurance company regularly paid plaintiff the amount of his monthly take-home pay as a shipfitter, and paid plaintiff’s tuition at school for the first quarter, until this tuition was paid by the State as part of a vocational rehabilitation program.

All such payments ceased in March of 1973, after plaintiff sought the assistance of counsel and rejected a settlement offer from the insurance company. Plaintiff filed suit in April of 1973, was granted a motion for summary judgment on the issue of liability in October of 1973, and trial on the issue of damages commenced December 5,1973.

At the time of trial the court heard defendant’s motion in limine to exclude testimony of Howard Bollerud, the insurance adjuster who allegedly encouraged the plaintiff to attend school. The defendant, understandably, did not wish the fact of insurance coverage to be injected into the proceedings. The trial court ruled, in essence, that the testimony was not relevant, and that the subject of insurance should not be mentioned in voir dire, in plaintiff’s opening statement, or in any of the plaintiff’s direct testimony. The court further stated, however, that the ruling was not final, and if the defendant’s case at any time raised an issue upon which the adjuster’s testimony might be relevant, the court would make another determination.

Trial on the issue of damages then proceeded, with some of the defense testimony presented out of order for the convenience of the witnesses. A point in the proceedings was eventually reached where the plaintiff believed that the testimony of the insurance adjuster was required, and the following offer of proof was presented to the court outside the presence of the jury:

Mr. Rorem: [plaintiff’s attorney] Well, the basic question, Your Honor, I think the gist of the defense and what they’ve been trying to do is to try to show that he could have gone back to work. I intend to ask him why he went to school and he will testify and the answer is going to be that Howard Bollerud told him or encouraged him to go to school and that they were going to take care of him. And it is the thing which I figured was going to show up, I didn’t see how we were going to avoid it, but their point still is that there hasn’t been anything in lost wages, their attack is that he could have gone to work, nothing wrong doing some sort of job and my point is that what he did was done at their encouragement and they should not be able to now come back in and say or insinuate that he was trying to get something for nothing, that is what they are trying to do, but what he did was on their advice and it raises a very touchy situation and I think that that is the problem that exists . . .

Following the offer of proof and brief argument from counsel as to its admissibility, the trial court again ruled that the testimony of the adjuster was irrelevant and would not be admitted. This ruling is plaintiff’s primary assignment of error on appeal.

Contrary to the suggestion of defendant that the above offer of proof was insufficient to support plaintiff’s assignment of error on appeal, it does appear that the offer: (1) made it clear to the trial court what it was that plaintiff offered in proof; (2) contained the reason why plaintiff deemed the offer relevant and admissible over the objection of defendant; and (3) enabled the trial court to make an informed ruling. The offer of proof was therefore adequate. See Blood v. Allied Stores Corp., 62 Wn.2d 187, 193, 381 P.2d 742 (1963); CR 43(c); 5 R. Meisenholder, Wash. Prac. § 321, at 292 (1965). The issue thus squarely raised is whether testimony that an agent of the negligent defendant’s insurance carrier assured the injured plaintiff that if he attended school the carrier would “take care of him” is relevant or sheds any light on the issue of plaintiff’s damages in this tort action.

At this point it bears repeating that the trial court had previously ruled by summary judgment that the defendant was liable, as a matter of law, for any injury the plaintiff may have suffered which was proximately caused by the automobile accident in question. The issue of liability was completely removed from the case. The only matter submitted to the jury, then, was to determine the amount of plaintiff’s injury proximately caused by defendant’s negligence, and the amount of damages plaintiff should be entitled to recover as compensation. There apparently was little dispute at trial, and no argument has been presented on appeal, regarding the amount of compensation for such damage elements as pain and suffering and necessary medical care. The seriously contested issue was and is the amount which would reasonably and fairly compensate the plaintiff for any economic loss caused by a decrease in earnings.

It is generally well recognized that there are normally two components or aspects which should be considered in attempting to measure the detriment an injured plaintiff has sustained when by reason of the injury he is unable to continue earning his prior wages. The first and most obvious component is frequently called “lost time,” “lost wages,” or “lost earnings.” That is, it is clear that if an injury renders a plaintiff temporarily unable to continue at a prior occupation for a given period, the plaintiff should be entitled to compensation for regular wages lost because of the disability. Secondly, when it becomes apparent that an injury was such that it occasioned a permanent disability, or permanent diminution of the ability to earn money, then the plaintiff should be entitled to compensation for what is generally called “impaired earning capacity.” See Murray v. Mossman, 52 Wn.2d 885, 329 P.2d 1089 (1958); Leak v. United States Rubber Co., 9 Wn. App. 98, 102, 511 P.2d 88 (1973); Bartlett v. Hantover, 9 Wn. App. 614, 619, 513 P.2d 844 (1973), aff’d in part, rev’d in part, 84 Wn.2d 426, 526 P.2d 1217 (1974); 22 Am. Jur. 2d Damages §§ 89-101 (1965); 18 A.L.R. 3d 88 (1968).

In this case it is undisputed that following plaintiff’s recuperation from the surgery performed on his back, he had the choice of going back to work at a new and different occupation commensurate in duties and wages with his alleged permanent disability. If he had done so, it is clear that he would have been entitled to damages measured not only by the amount of his lost wages during the period of his hospitalization and recuperation, but also measured by the impaired earning capacity resulting from any proven permanent diminution of his ability to earn money during the remainder of his working life. However, plaintiff was presented with a second choice—that of attending school as part of a vocational rehabilitation program to learn a new trade which he could successfully perform despite his disability, and presumptively at a rate of pay which might reduce the amount of his impaired earning capacity. Plaintiff chose this second alternative, in part, he alleges, because of the encouragement of defendant’s insurance carrier.

It has long been the law in this state and elsewhere that an injured party must, whenever possible, attempt to mitigate his damages, and cannot be compensated for damages which he might have prevented by reasonable efforts and expenditures. Snowflake Laundry Co. v. MacDowell, 52 Wn.2d 662, 674, 328 P.2d 684 (1958); Ward v. Painters’ Local 300, 45 Wn.2d 533, 276 P.2d 576 (1954); Wing Ott Lew v. Goodfellow Chrysler-Plymouth, Inc., 6 Wn. App. , 492 P.2d 258 (1971). The obvious corollary to this rule is that an injured party is generally entitled to all legitimate and reasonable expenses necessarily incurred by him in an honest and good faith effort to reduce the damages from or following the wrongful act. Snowflake Laundry Co. v. MacDowell, supra; 25 C.J.S. Damages § 49, at 775 (1966). Although prudent action and ordinary diligence is of course required, the following statement of the applicable principles of law has been approved by the Supreme Court:

“While it is economically desirable that personal injuries and business losses be avoided or minimized as far as possible by persons against whom wrongs have been committed, yet we must not in the application of the present doctrine lose sight of the fact that it is always a conceded wrongdoer who seeks its protection. Obviously, there must be strict limits to the doctrine. A wide latitude of discretion must be allowed to the person who by another’s wrong has been forced into a predicament where he is faced with a probability of injury or loss. Only the conduct of a reasonable man is required of him. Í/ a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen

Hogland v. Klein, 49 Wn.2d 216, 221, 298 P.2d 1099 (1956), citing C. McCormick, Law of Damages § 35, at 133 (1935).

It became apparent during the trial of the instant case that the plaintiff was requesting as an element of damages the amount of his lost wages during the entire period prior to trial when he was attending school, and that the thrust of the defense to this request was the argument approved by the court in Ward v. Painters’ Local 300, supra; i.e., that the plaintiff was not entitled to such lost wages because he could have and should have attempted to work. An issue was certainly raised, therefore, regarding the reasons for and the reasonableness of plaintiff’s decision to forego employment and attempt to complete a vocational rehabilitation program. Since only the conduct of a reasonable man was required of him, the plaintiff was entitled to have the jury evaluate the reasonableness of his conduct in the light of any available evidence relevant to that specific issue. The fact that a representative of the negligent defendant’s insurance company advised and encouraged the plaintiff to attend school and learn a new trade certainly “sheds light” on the question of the reasonableness of plaintiff’s conduct. Although determination of the relevancy of evidence is a matter where the trial court must necessarily exercise its discretion, the proffered evidence in this case was relevant, and it was error to exclude it. Ladley v. St. Paul Fire & Marine Ins. Co., 73 Wn.2d 928, 442 P.2d 983 (1968).

In ruling that evidence of this conduct of the insurance carrier should have been introduced in the case, the court is not unmindful of the authorities cited in defendant’s appellate brief which hold that evidence of settlement negotiations or offers of compromise is not admissible as an admission of liability absent the narrow exception applicable to relevant admissions of distinct facts contained therein. See, e.g., Eagle Ins. Co. v. Albright, 3 Wn. App. 256, 474 P.2d 920 (1970); Ershig Sheet Metal, Inc. v. General Ins. Co. of America, 62 Wn.2d 402, 383 P.2d 291 (1963). There is further authority from other jurisdictions holding that the fact of advance payment by an insurance company, similar to the payments involved here, is not admissible as an admission of liability. See Annot., 20 A.L.R.2d 291 (1951); Hughes v. Anchor Enterprises, Inc., 245 N.C. 131, 95 S.E.2d 577 (1956). However, as we mentioned previously, the issue of liability was not involved in this case, and the hazard attendant upon the introduction of insurance coverage in a questionable liability situation was not present. Moreover, the above rules are nothing more than a variation, designed not to discourage compromise and settlement, of the general rule that in personal injury cases, the fact that the defendant carries liability insurance is immaterial, and the deliberate intrusion into the case of this fact by plaintiff is positive, prejudicial error and grounds for reversal. Kadiak Fisheries Co. v. Murphy Diesel Co., 70 Wn.2d 153, 160, 422 P.2d 496 (1967); Mills v. Warn, 8 Wn. App. 296, 298, 505 (1973); Buob v. Feenaughty Mach. Co., 4 Wn.2d 276, 294, 103 P.2d 325 (1940). We make no new law when we restate, additionally, the caveat that this general exclusionary rule does not operate if the fact of insurance has specific relevancy to some issue in the case. Carlson v. P.F. Collier & Son Corp., 190 Wash. 301, 320, 67 P.2d 842 (1937); Jerdal v. Sinclair, 54 Wn.2d 565, 569, 342 P.2d 585 (1959); Mills v. Warn, supra; 5 R. Meisenholder, Wash. Prac. § 8, at 38 (1965). Here the fact of insurance, as it related to the conduct of the negligent defendant’s insurance carrier, did have specific relevance to the issue raised regarding the amount of lost wages plaintiff was entitled to as damages.

One final observation should be made. That is that our holding should in no way be construed to discourage or inhibit the development by the insurance industry in the past 10 years or so of what are frequently called “advance payment programs,” such as was utilized in the case at bar. The apparent theory behind such programs is that the injured party benefits by the immediate payment of various out-of-pocket expenses incurred as a result of an accident, and the correlative benefit to the insurance company, aside from the doing of a humane thing for someone in distress, is the advantage to be gained by securing the good will and cooperation of the claimant, with the expectation of thereby controlling the claim to avoid litigation and to promote better and faster settlements. See The Legal Aspects of Partial Payments Made on Liability Claims in Advance of Final Settlement, ABA Section of Insurance, Negligence and Compensation Law 499 et seq. (1967). We point out that it is only when the extent of control exercised by the company becomes material to a contested issue, such as the narrow question of the amount of damages in this case, that the general rule excluding any mention of insurance must give way to the admissibility of directly relevant evidence.

The inherent prejudice involved in the contrary ruling of the trial court was aptly demonstrated in defendant’s closing argument. Here the injured plaintiff had fully cooperated with a rather extensive involvement of the defendant’s insurance carrier during several years of his attempted recuperation and rehabilitation. Yet when final settlement satisfactory to the insurance company was not reached, and trial proceeded without the proffered evidence of the carrier’s involvement, the defense was able to argue to the jury as follows:

I suggest to you, ladies and gentlemen, that Mr. Em-bista, and that the evidence is clear, could have clearly been employed prior to this time if he had decided to be employed but instead he decided to go to school and he says that he is bettering himself in school. I don’t believe that the defendant is responsible for that decision.

The evidence on this subject offered by the plaintiff should have been admitted, and because of the prejudicial effect of its absence, the plaintiff is entitled to a new trial.

We turn now to the remaining assignments of error. In regard to plaintiff’s challenge to the admission of portions of an affidavit taken of the unavailable defendant without strict compliance with the notice provisions of CR 30(b) (1), we need only mention that plaintiff admits the deposition contained no significant or prejudicial evidence. If any error occurred it was certainly harmless. As to plaintiff’s contention that the court erred by limiting redirect examination of one of plaintiff’s treating physicians, we note that plaintiff does not even attempt to establish that the court abused its discretion, and we find no error. State v. Baker, 4 Wn. App. 121, 480 P.2d 778 (1971); State v. Hinkley, 52 Wn.2d 415, 325 P.2d 889 (1958).

Reversed and remanded.

Petrie, J., concurs.