Silva v. Wilcox

223 P.3d 127, 2009 Colo. App. LEXIS 1898, 2009 WL 4070875
CourtColorado Court of Appeals
DecidedNovember 25, 2009
Docket08CA2717
StatusPublished
Cited by21 cases

This text of 223 P.3d 127 (Silva v. Wilcox) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silva v. Wilcox, 223 P.3d 127, 2009 Colo. App. LEXIS 1898, 2009 WL 4070875 (Colo. Ct. App. 2009).

Opinions

Opinion by

Judge GRAHAM.

Defendant, Maria Wilcox, appeals from a judgment in favor of plaintiff, Luis Silva, awarding him damages for personal injuries he sustained in an auto accident. Wilcox contends that the trial court erred in (1) barring the presentation of evidence regarding Silva's status as a legal resident of the United States, (2) refusing to reopen discovery, (8) giving a negligence per se jury instruction, (4) barring the presentation of evidence concerning Silva's use of automobile-injury financing and (5) denying Wileox's motion for a new trial. We remand for further proceedings.

I. Background

A. Factual Background

This case arises from an automobile accident on a snow-packed city highway. Wileox was traveling in the far left lane at the speed of traffic, thirty to thirty-five miles per hour, when she saw traffic begin to slow due to an earlier accident. She was braking when her car started to spin, colliding with a bus. At trial, Siiva argued that Wileox's collision with the bus caused the bus to swerve and strike his truck, injuring him. Wileox argued that Silva was ahead of her and that the bus never collided with his truck.

The jury awarded Silva $80,444.50 in damages, which included his claims for economic and noneconomic damages. As part of Silva's economic damages, he requested compensation for lost future wages.

B. Procedural Background

This case was tried twice. Before the first trial, but after completion of discovery, Silva filed his combined motions in limine seeking to preclude evidence at trial of his borrowed funds from Injury Management Funding (IMF) and his immigration status.

Wilcox argued that the IMF arrangement had not been disclosed and could lead to the discovery of admissible evidence. She also argued that Silva's immigration status was relevant to his claim for damages for lost future wages. She moved for additional discovery and a continuance of the trial date.

Three days prior to trial, the trial court denied Wileox's request to extend discovery and to continue trial On the morning of trial, the trial court granted in part Silva's combined motions in limine, barring presentation of evidence on the topics of funds borrowed from IMF and Silva's immigration status.

The parties also disagreed concerning whether the jury should receive an instruction on negligence per se. At the first trial, Silva tendered a jury instruction on the topic of negligence per se, based on section 42-4-1008, C.R.S.2009 (following too closely), seetion 424-1101, C.R.S$.2009 (reasonable and prudent speed), and section 42-4-1402, C.R.S$.2009 (careless driving). The court rejected the instruction on the ground that "there was no evidence supporting it." The court also explained, mistakenly, that a negli-genee per se instruction was only warranted if the defendant was charged with the underlying offense. The first trial resulted in a hung jury.

Before the second trial, Silva submitted a trial brief supporting his argument for the inclusion of a negligence per se instruction pursuant to sections 42-4-1008, 42-4-1101, and 42-4-1402. At the second trial, Silva once again tendered a negligence per se instruction, this time basing it on Denver Rev. Mun.Code 54.158, which provides:

It shall be unlawful for any person operating a vehicle anywhere in the city to drive: (1) In an unreasonable and imprudent manner, without having regard to the actual and potential hazards then existing; or
(2) So as to lose control of the vehicle thereby endangering or colliding with any person, structure, thing, vehicle or other conveyance.

(Emphasis added.)

The court gave the new negligence per se instruction, explaining that "they're the same [131]*131instructions basically [the court] gave for the last trial other than the careless driving, negligence per se, instruction which for some reason wasn't included in the first case but certainly was pled in the Complaint." The court later explained, mistakenly, that a negligence per se instruction was not given in the first trial because Silva had not asked for one. When Wileox's counsel argued that a negligence per se instruction had been submitted, the court stated that it did not remember the instruction, but reasoned that the instruction was supported by the evidence.

In the second trial, the jury found in favor of Silva and awarded him $75,444.50 in economic damages, which under the jury instructions included "loss of earnings or damage to his ability to earn money in the future" in addition to medical, hospital, and other expenses.

IL Immigration Status

We first consider whether it was error to grant the motions in limine and exclude evidence of Silva's immigration status. Further proceedings are required to determine this issue.

In the combined motions in limine, Silva contended that, at the time of the accident, he "was driving with a valid driver's license from Mexico." He asserted that the only reason for introducing evidence of the driver's license was to create bias against him. Silva also asked to bar any evidence regarding his immigration status because such evidence would likewise create bias and because its probative value was greatly outweighed by its prejudicial effect.

The trial court summarily granted the request to bar evidence concerning the driver's license and Silva's immigration status, without taking evidence and without conducting any CRE 403 analysis.

In response to the combined motions in limine, Wilcox contended that evidence of Silva's immigration status was relevant to any claim for lost future wages, arguing that he would not be entitled to earn wages if he was in the United States illegally. Thus, the question was preserved for appeal. See CRE 103(a)(2) ("Onee the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.").

She renews her argument here, asserting that Silva's status was relevant to a determination whether he could earn any future wages pursuant to the Immigration Reform and Control Act of 1986, 8 U.S.C. section 13242 (2008) (IRCA). She maintains that, at a minimum, she was entitled to an evidentia-ry hearing to determine Silva's immigration status before the trial court determined its admissibility. We agree.

In support of her argument, Wilcox cites Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), which held that the IRCA foreclosed the NLRB from awarding back pay to an undocumented alien. The Court in Hoffman based its decision on the conflict between an award of back pay and the TRCA. Hoffman, 535 U.S. at 147, 122 S.Ct. 1275. The IRCA established an extensive system designed to deny employment to aliens who may not lawfully work in the United States. Id. The Court held that "awarding back pay to illegal aliens runs counter to policies underlying IRCA" and suggested that to hold otherwise would allow the NLRB to award back pay "for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud." Id. at 149, 122 8.0t. 1275.

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Silva v. Wilcox
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Cite This Page — Counsel Stack

Bluebook (online)
223 P.3d 127, 2009 Colo. App. LEXIS 1898, 2009 WL 4070875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-wilcox-coloctapp-2009.