Nazarenko v. CTI Trucking Co.

856 S.W.2d 869, 313 Ark. 570, 1993 Ark. LEXIS 408
CourtSupreme Court of Arkansas
DecidedJune 28, 1993
Docket93-118
StatusPublished
Cited by33 cases

This text of 856 S.W.2d 869 (Nazarenko v. CTI Trucking Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nazarenko v. CTI Trucking Co., 856 S.W.2d 869, 313 Ark. 570, 1993 Ark. LEXIS 408 (Ark. 1993).

Opinion

Jack Holt, Jr., Chief Justice.

Mike Nazarenko sued CTI Trucking Co., Inc. (CTI) and its driver, Randy Justice, appellees, for his injuries and damages resulting from their negligence. The jury returned a verdict in the appellees’ favor. Mr. Nazarenko then filed a motion for a new trial claiming the trial court committed an error of law by permitting testimony favorable to the appellees in violation of the collateral source rule. The trial court denied the motion and Mr. Nazarenko appeals. We agree with the trial court and affirm.

Mr. Nazarenko sustained back injuries during the delivery of a roll of carpet by CTI to his employer, Sherwin-Williams, located in Arkadelphia. According to Mr. Nazarenko, he and Mr. Justice were unloading a large roll of carpet using a “carpet jack” when Mr. Justice pushed the roll and caused a steel pipe part of the carpet jack to strike Mr. Nazarenko in the chest. To avoid being crushed, Mr. Nazarenko caught the raised carpet roll weighing about 800 bounds. He alleged that this caused his back injury which required surgery.

Mr. Nazarenko brought suit claiming that Mr. Justice was negligent in handling the roll of carpet as it was being unloaded from the truck and that he was entitled to monetary relief for the resulting damages he suffered. After the jury returned a verdict for CTI, Mr. Nazarenko filed a motion for a new trial on the basis that the trial court committed an error of law in allowing defense counsel to proceed with a line of questioning which violated the collateral source rule.

In ruling against Mr. Nazarenko on this motion, the trial court found:

The Court granted a pre-trial motion in limine whereby the Defendant’s counsel was prohibited from mentioning Workers’ Compensation or bringing such matter to the jury’s attention.
The first witness called by the Plaintiff was Mitch Fendley [Branch Manager of Sherwin-Williams] and he testified about Workers’ Compensation.
The Plaintiff testified he had not been going back to the doctor as he could not afford it. He further testified he couldn’t go back to Henderson State University as he owed them a bill and could not pay it.
The defense in chambers requested that they be allowed to cross-examine the Defendant concerning the Workers’ Compensation settlement where he received medical payments and a sum of money, that he testified before the Law Judge that he was going to use the money to pay his bills and return to college. The Court denied the defendant the right to present such testimony unless the Plaintiff continued to “open it up” before the jury. In other words, the Court would not allow the jury to be mislead [sic] by the Plaintiff.
The trial continued and there was no mention of insurance, nor [sic] was it inferred.

Under the facts before us, we cannot say that the trial court erred in denying the motion for a new trial.

The record reveals the trial court granted a pretrial motion in limine prohibiting CTI from referring to Mr. Nazarenko’s workers’ compensation payment which covered some of his medical bills. However, this information was furnished to the jury by Mr. Nazarenko’s own witness, Mitch Fendley, the branch manager of Sherwin-Williams, when Mr. Fendley stated on direct-examination that on the day of the incident he “suggested that [Mr. Nazarenko] go to the doctor and, of course, that day I called — Sherwin-Williams has an eight hundred number for their workers’ compensation program within the company.” He next said, “I called them and notified them, and we had Mike [Nazarenko], I believe, report to Dr. John Bomar for treatment.”

In his brief, Mr. Nazarenko states that he is not seeking appellate relief because Mitch Fendley’s testimony was “presented to the jury unsolicited by him and was prejudicial to him” since his own attorney brought workers’ compensation out on direct examination, but instead he “has come before this court seeking relief. . . because appellee’s counsel then intentionally and deliberately aggravated the prior injection of workers’ compensation to the jury with his questioning of Mr. Nazarenko.” Mr. Nazarenko supports his position by quoting at length trial testimony and exchanges between the court and counsel as follows.

Mr. Nazarenko testified on direct examination:

Q: Since Dr. Gocio released you, have you had flareups from time to time with your condition?
A: Yes, sir.
Q: Have you been going to the doctor?
A: No, sir.
Q: Why not?
A: I really couldn’t afford to go see him, and at one time when I was still kind of like in his care, I couldn’t get over to Hot Springs. I didn’t have a car at the time. I didn’t have a phone, and basically it wasn’t because of the money problem.
Q: Did you go back to see Dr. Bomar recently?
A: Yes, sir, I did.
Q: Did Dr. Gocio refer you back to his care?
A: Dr. Gocio said it would be all right for me to see Dr. Bomar. He didn’t have any objections to it. He was talking that I would need some kind of like a rehabilitation, and he agreed that Dr. Bomar would be all right to see.

After these questions, the following bench conference took place out of the hearing of the jury.

Mr. Murray (Defense Counsel): Judge, the evidence, from the testimony of Dr. Gocio, is that this gentleman didn’t seek medical attention for a period of a year or a year and a half.
Mr. Chaney (Plaintiffs Counsel): What?
Mr. Murray: The Claimant, from 1991 until sometime in 1992, has testified that he didn’t get medical treatment because he couldn’t afford it. I think he’s opened the door for me to inquire, not about insurance, but about the fact that his medical bills had, in fact, been paid.
Mr. Chaney: I would strongly disagree with that, your Honor. He testified the bills had been incurred, and then the future medical care that Dr. Gocio predicted that he would need, five hundred to a thousand a year — he hasn’t been spending that in the last year or so.
Mr. Murray: He said he hadn’t gone to the doctor because he couldn’t afford it. That’s why he didn’t go back
Mr. Chaney: We’re talking about the future medical.
Court: Mr. Murray, I’m going to overrule your request, and let’s proceed.
Mr. Murray: Okay, thank you.

Mr. Nazarenko later testified as follows upon cross-examination.

Mr.

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Bluebook (online)
856 S.W.2d 869, 313 Ark. 570, 1993 Ark. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nazarenko-v-cti-trucking-co-ark-1993.