Quinones v. Pennsylvania General Insurance

804 F.2d 1167, 6 Fed. R. Serv. 3d 751
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 10, 1986
DocketNos. 85-1665, 85-1680
StatusPublished
Cited by8 cases

This text of 804 F.2d 1167 (Quinones v. Pennsylvania General Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quinones v. Pennsylvania General Insurance, 804 F.2d 1167, 6 Fed. R. Serv. 3d 751 (10th Cir. 1986).

Opinion

McKAY, Circuit Judge.

I. Facts

The plaintiff, Lubin Quinones, a resident of Dona Ana County, New Mexico, filed this action on an uninsured motorist policy issued by the defendant, Pennsylvania General Insurance Company (Penn General), a corporation organized under the laws of Pennsylvania, in the District Court of Dona Ana County, New Mexico. The action arose out of a claim for damages from an automobile collision occurring in El Paso, Texas, between plaintiffs vehicle and one driven by an uninsured motorist, William George Mowad, who is a citizen and resident of El Paso. Penn General removed the suit to the United States District Court for the District of New Mexico and filed a third-party complaint for indemnification or subrogation against Mr. Mowad. In addition, Penn General filed a motion to transfer the case to the United States District Court for the Western District of Texas. This motion was denied by an order directing that the case be tried in Las Cruces, New Mexico.

The third-party defendant, Mr. Mowad, was served pursuant to Rule 4(f) of the Federal Rules of Civil Procedure in El Paso, Texas, which is located approximately forty miles from Las Cruces, New Mexico. Mr. Mowad filed a motion to dismiss the third-party complaint, asserting that the court lacked personal jurisdiction and that Fed.R.Civ.P. 4(f) was unconstitutional if interpreted so as to expand personal jurisdiction beyond a state’s boundary as opposed to merely prescribing satisfactory service of process in certain delineated situations. The trial court granted this motion and dismissed the third-party complaint.

The case was actually tried in Albuquerque, New Mexico. A Judgment on Special Verdict was entered, reflecting that Mr. Mowad was 100% negligent and that such negligence was the proximate cause of damage to Mr. Quinones. The jury found that Mr. Quinones had suffered damages in the amount of $25,000.00, and judgment was entered against Penn General for that amount plus costs and interest.

Plaintiff, Lubin Quinones, appeals the trial court’s rulings disallowing certain testimony with respect to the extent of his economic loss. He also appeals the court’s refusal to instruct the jury that recovery for past medical expenses is allowable even though such expenses had already been paid by Penn General under a separate clause in the insurance contract.

The defendant and third-party plaintiff, Penn General, appeals the dismissal of its third-party complaint against Mr. Mowad for lack of personal jurisdiction. In the alternative, if this court does not reverse the trial court’s dismissal of the third-party complaint, it appeals the trial court’s refusal to transfer the case to El Paso, Texas. We examine each contention in turn.

II. Evidentiary Rulings

Mr. Quinones was a self-employed watch repairman who owned a watch repair and jewelry store from 1970 to 1981 known as The Little Shop. He performed the watch repair work for the shop. After the 1981 accident, he was unable to continue working at his trade. To prove the loss-of-eaming-capacity component of his damages, he attempted to introduce testimony from three witnesses, all of which was disallowed by the trial court. The primary evidence left before the jury establishing the dollar value of his loss of earning capacity was his income tax returns for the years 1978 through 1981, showing income of $1,548, $4,743, $0, and $0, respectively.

First, Mr. Quinones appeals the trial court’s exclusion of certain testimony of Mr. Glenn Cutter, the operator of two jewelry stores for whom Mr. Quinones had performed some contract watch repair work in the 1970’s. At the time of trial in [1170]*11701985, Mr. Cutter employed a full-time watchmaker to do such work. When Mr. Cutter was asked how much he paid his current watchmaker, the court sustained Penn General’s objection that this testimony failed to show the earning capacity of Mr. Quinones.

An evidentiary ruling will only be reversed if the record shows that the trial court abused its discretion. Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331 (10th Cir.1984); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978). Mr. Quinones’ counsel failed to lay a foundation regarding when Mr. Cutter last used the services of Mr. Quinones and what he paid him, and also failed to make an offer of proof as required under Fed.R.Evid. 103(a)(2). There is nothing in the record which demonstrates that a 1985 salary paid by Mr. Cutter to his full-time watchmaker was relevant to Mr. Quinones’ loss of earning capacity sustained in 1981. Since “the determination of whether proffered evidence is relevant is a matter committed to the discretion of the trial court,” Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir.1983), we find that the trial court in this instance did not abuse its discretion in disallowing Mr. Cutter’s testimony. See also Whiteley v. OKC Corp., 719 F.2d 1051, 1057 (10th Cir.1983).

Second, Mr. Quinones appeals the trial court’s exclusion of certain testimony of Mr. Quinones himself concerning the fate of his shop, which closed in 1981. Penn General asserts that such evidence is directed toward proving lost business profits or loss of going-concern value of Mr. Quinones' business rather than toward proving Mr. Quinones’ lost earning capacity. Since a claim for lost profits in a torts case constitutes special damages which must be specifically stated under Fed.R.Civ.P. 9(g), and neither the complaint nor the pretrial order contained a claim for these damages, Penn General argues that the trial court’s ruling was correct. See Moore v. Boating Industry Associations, 754 F.2d 698, 717 (7th Cir.1985) (lost profits considered special damages in tort case); Burlington Transp. Co. v. Josephson, 153 F.2d 372, 377 (8th Cir.1946) (must allege specific facts showing special damages under Fed. R.Civ.P. 9(g) to apprise defendant of nature of claim against him). Mr. Quinones counters that harm to the business that he owned and in which he worked can be recovered as part of lost earning capacity.

We need not reach the somewhat thorny issue of whether the business’ loss of revenues represent losses due to Mr. Quinones’ inability to repair watches, and thus may be a probative measure of his lost earning capacity, or whether the evidence of decreased revenues speaks only to a lost profits claim, which Mr.

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804 F.2d 1167, 6 Fed. R. Serv. 3d 751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinones-v-pennsylvania-general-insurance-ca10-1986.