Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
11-15-1995
Williams v Rene Precedential or Non-Precedential:
Docket 95-7226
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Recommended Citation "Williams v Rene" (1995). 1995 Decisions. Paper 289. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/289
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 95-7226 ____________
ANTONIO WILLIAMS
V.
JOSEPH RENE; ESSO VIRGIN ISLANDS, INC.
Scott Drake; John Doe, Third-party Defendants
Esso Virgin Islands, Inc., Appellant ____________
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Division of St. Croix (D.C. No. 91-cv-00231) ____________
Argued August 16, 1995
Before: STAPLETON, LEWIS and WEIS, Circuit Judges
Filed November 15, l995 ____________
Robert T. Lehman, Esquire (ARGUED) Arthur H. Jones, Jr., Esquire Archer & Greiner A Professional Corporation One Centennial Square Haddonfield, New Jersey 08033
Douglas L. Capdeville, Esquire 2107 Company Street, Lot #4 Christiansted, St. Croix U.S.A. Virgin Islands 00820-4918
Attorneys for Appellant
Lee J. Rohn, Esquire (ARGUED) Maurice J. Cusick, Esquire Rohn & Cusick 1101 King Street
1 Christiansted, St. Croix U.S.A. Virgin Islands 00820
Linda Morgan, Esquire P.O. Box 3530 Christiansted, St. Croix U.S.A. Virgin Islands 00820
Renee D. Dowling, Esquire P.O. Box 1047 Christiansted, St. Croix U.S.A. Virgin Islands 00821
Attorneys for Appellee
WEIS, Circuit Judge. In this Virgin Islands automobile accident case,
evidence that an employee was driving a company car for his own
convenience, together with a presumption of vicarious liability
on the part of the employer, raised a question for the jury to
resolve. Because the trial court granted a partial judgment as a
matter of law against the employer on the respondeat superior
issue, we will reverse and remand for a new trial.
For guidance on the retrial, we note that an
unsupported opinion by an actuarial expert on the plaintiff's future earnings should not be received into evidence. We also
conclude that the failure of defense counsel to advise the
plaintiff's lawyer of an interview with an attending physician is
not an adequate ground to exclude that doctor's testimony.
Plaintiff Antonio Williams was injured on St. Croix,
Virgin Islands on December 12, 1990 when his pickup truck
collided with an automobile owned by defendant Esso and operated
by Joseph Rene, one of its employees. Williams sued both Esso
2 and Rene in the District Court of the Virgin Islands. At the
conclusion of the evidence at the trial, on the plaintiff's
motion, the court dismissed Rene from the case. The jury then
awarded plaintiff a verdict of $4.5 million against Esso. The
district court denied Esso's post-trial motions. Williams v.
Rene, 886 F. Supp. 1214 (D.V.I. 1995).
Esso had assigned the automobile in question to the
position held by one of its employees, Helen Sia. In carrying
out her duties as a sales representative, Sia traveled frequently
to visit various customers in the Virgin Islands. Esso permitted
her to take the company car home after work and to use it for
personal matters.
Sia's office was located about a quarter of a mile from
the St. Croix Airport Terminal and was separated from it by the
"Esso Yard." On some occasions, she would drive from her home to
the airport terminal to meet with customers. At other times, she
would travel directly from her residence to her office. If it
became necessary during the work day to go to the airport
terminal, Sia would either walk, drive the company car, or be
"shuttled" by another Esso employee who might be available.
On the evening of December 11, 1990, the day before the
accident, Sia drove the company car to her home with a passenger,
her co-employee Rene, whose own vehicle had broken down. When
they arrived at Sia's residence, she turned the car over to Rene,
who then drove it to his home, some distance away. The
understanding was that Rene would return the automobile to Sia at
her home the following morning. She would then drive to the
3 airport for a business appointment there, dropping Rene off at
his job site.
Rene was a crew leader in the Esso group that refueled
planes at the St. Croix Airport. He was not Sia's supervisor nor
did she supervise him. No supervisory person authorized Rene to
drive the car on this occasion.
The accident occurred not long after Rene left his
home, between 6:45 a.m. and 7:00 a.m., and while he was en route
to Sia's home. The record does not disclose when Sia and Rene
were to report to work, but it may be assumed that the starting
times were after the hour at which the accident occurred.
At the close of the evidence, the trial court granted
the plaintiff's motion for a partial judgment as a matter of law,
holding Esso responsible under respondeat superior principles.
Plaintiff also moved to dismiss Rene as a defendant "conditioned
on the granting of the motion for respondeat superior and . . .
seek its damages solely from Esso as a result of its employee in
the course and scope of his employment." That motion was also
granted and the case went to the jury with Esso as the sole
defendant.
Defendant appealed, asserting that the district court
erred in granting judgment as a matter of law on the agency issue
and in failing to grant a remittitur or order a new trial because
of the excessiveness of the verdict.
I.
The plaintiff's theory of liability against Esso is
based on respondeat superior, that is, that an employer is
4 responsible for the negligence of its employees that occurs
within the course and scope of their employment. The employer's
liability is vicarious and secondary to that of the employee,
which is primary. The relationship was explained in Builders
Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951): "[T]he person
primarily liable is the employee or agent who committed the tort,
and the employer or principal may recover indemnity from him for
the damages which he [the employer] has been obliged to pay."
Accord Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d
Cir. 1982); Tromza v. Tecumseh Prods. Co., 378 F.2d 601, 605 (3d
Cir. 1967). The Restatement (Second) of Agency is in agreement.
Section 401 comment (d) reads, "a servant who, while acting
within the scope of employment, negligently injures a third
person, although personally liable to such person, is also
subject to liability to the principal if the principal is thereby
required to pay damages." See also Restatement of Restitution
§ 96 (1937).
Throughout the litigation, the parties seemed to assume
that the liability of Esso and Rene was joint and several. This
misunderstanding of the fundamental nature of Rene's primary
responsibility led to a number of errors during the proceedings.
For example, in her opening remarks to the jury, the plaintiff's
counsel said ". . . if Mr. Rene was operating that vehicle in the
course and scope of his employment, then his employer is the one
who's responsible to pay the damages and that's Esso. And the
law says if Mr. Rene was not in the course and scope of his
employment, then Mr. Rene is liable for those damages."
5 These comments, of course, are a misstatement of the
law. Rene, as the primary tortfeasor, would be liable in any
event for his negligence in causing the accident without regard
to whether Esso was secondarily liable. Esso would be
responsible only if Rene were negligent and his conduct occurred
during the course and scope of his employment. Esso's liability
would be vicarious only, but Rene's conduct would be the sole,
active negligence that caused the accident.
We turn then to the scope of employment issue. Because
the Restatements furnish the guiding common law in the Virgin
Islands, we look to sections 228 and 229 of the Restatement
(Second) of Agency. V.I. Code Ann. tit. 1, § 4 (1967).
Restatement section 228(1)(a),(b) provides that conduct
of a servant is within the scope of employment if it is the kind
he is employed to perform and it occurs substantially within the
authorized time and space limits. Section 228(2) states that
conduct is not within the scope of employment if it is "too
little actuated by a purpose to serve the master."
Comment d to section 229 is particularly pertinent
here. It discusses the "going to and from work" situation and
notes the importance of ascertaining "whether the vehicle is
supplied primarily for the purpose of assisting the [employer's]
work, or for the purpose of assisting the employee to perform
what is essentially his own job of getting to . . . work." Simply
because the employer provides a vehicle "does not establish that
those who avail themselves of it are within the scope of
6 employment while upon it, especially if the use is merely
casual." Id.
The general rule is that employees are not within the
scope of their employment while traveling to and returning from
work. That principle was recognized by the Territorial Court of
the Virgin Islands in McFarlane v. Jones Masonry, 25 V.I. 43
(Terr. Ct. 1990). See also Charles v. Mitchell, 21 V.I. 478
(D.V.I. 1985). There may be some circumstances that take a case
out of the general rule, for example, when there are express
instructions by the employer or when the trip serves some
specific purpose of the employer other than merely providing for
the presence of the employee at the work place. See, e.g.,
Caldwell v. A.R.B., Inc., 222 Cal. Rptr. 494, 498 (Cal. Ct. App.
1986).
In Pacheco v. United States, 409 F.2d 1234, 1237 (3d
Cir. 1969), we held that, generally speaking, proof of a
defendant's ownership of a vehicle and of its operation at the
time of the accident by an agent of the defendant creates a
presumption that the driver was acting within the scope of
employment. As we indicated in the opinion, that presumption is
rebuttable. Id. Federal Rule of Evidence 302 provides that the effect
of a presumption is determined by state law whenever it supplies
the rule of decision on a claim. Assuming, without deciding,
that the Virgin Islands statute on presumptions, V.I. Code Ann.
tit. 5, § 812 (1967), governs here, Esso had the burden of
7 proving that Rene was not acting within the scope of his
employment once plaintiff established the Pacheco presumption.
The standard of review for the grant of a motion for
judgment as a matter of law varies according to whether the
moving party has the burden of proof. Fireman's Fund Ins. Co. v.
Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976). Because
Esso had the burden of proof on the respondeat superior issue,
the grant of the plaintiff's motion can be sustained "only if,
viewing the evidence in the light most favorable to the non-
moving party, there is no question of material fact for the jury,
and any verdict other than the one directed would be erroneous
under the governing law." Tait v. Armor Elevator Co., 958 F.2d
563, 569 (3d Cir. 1992) (quoting Macleary v. Hines, 817 F.2d
1081, 1083 (3d Cir. 1987)).
The record in this case contains ample evidence to
rebut a Pacheco presumption. Rene's employment at the airport
was not the type of job that required travel by automobile over
the Island. Rene left his home between 6:45 and 7:00 a.m. The
collision occurred shortly thereafter, apparently before he was
to report for work at the airport. At the time of the collision,
he was en route to Sia's home to turn the car over to her. Sia,
a co-employee, had furnished the car as a favor to Rene to get
him from her home to his and back. No one in a supervisory
position at Esso had authorized or directed Rene to use the car
on the day of the accident, or to pick up Sia.
Plaintiff produced some evidence that, at various times
in the past, some of Esso's employees had been authorized during
8 working hours to drive to employees' homes in order to bring them
to the work place. That testimony was general and did not
establish a clear policy, nor did it demonstrate that Rene had
been directed to bring Sia to work. In this context, it is
important to note, as the Restatement points out, the distinction
between an employer's permission to drive a company car for
personal errands and directions for the use of the automobile on
the employer's business. The mere fact that Esso had allowed its
employees to use its vehicles to bring other employees to work in
the past did not establish that Rene was within the scope of
employment.
Although plaintiff was entitled to a Pacheco
presumption, there was adequate evidence to support a finding
that Rene was using the automobile for his own personal
convenience and not on the business of Esso. Consequently, the
respondeat superior question should have been submitted to the
jury. It was error, therefore, to grant judgment against Esso on
the vicarious liability issue. Accordingly, a new trial must be
granted.
At this juncture, the question arises whether the new
trial should be granted only as to liability without vacating the
damage award. In Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494 (1931), the Supreme Court held that even if error as
to one issue requires a new trial, it need not include other
separate points that were properly decided. If the issue of
damages, however, is so intertwined with liability that one
cannot be submitted to the jury independently of the other
9 without confusion and uncertainty, then a new trial must extend
to all issues. Id. at 500-01. Accord Simone v. Golden Nugget
Hotel & Casino, 844 F.2d 1031, 1040 (3d Cir. 1988); Vizzini v.
Ford Motor Co., 569 F.2d 754, 759 (3d Cir. 1977); see also Fed.
R. Civ. P. 59(a).
This appeal presents a unique circumstance that has a
bearing on the appropriate scope of a new trial. The district
court granted the plaintiff's request to dismiss defendant Rene
just before the case was submitted to the jury. The dismissal
was conditional, that is, dependent on a judgment as a matter of
law against Esso on the respondeat superior issue. The situation
thus created may fairly be said to come within the purview of a
comment in a leading treatise: "When fewer than all defendants
are dismissed voluntarily, . . . the court retains plenary power
to reinstate those defendants until the claim has been
adjudicated as to the remaining defendants." 9 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 2367 at 323
(1995).
Because the respondeat superior ruling must be set
aside, so too must Rene's dismissal be vacated. The district
court acquiesced in the limited effect of the plaintiff's motion,
and it would be inappropriate, as well as unfair, to hold at this
point that Rene would no longer be a party. We therefore direct
that Rene be reinstated as a defendant.
Having concluded that Rene will be a party on the
retrial, we must consider what effect that factor will have on
the remaining issues. It is significant that the jury reached
10 its verdict on negligence and damages at a time when Rene was no
longer a defendant in the case. On retrial, it may be that the
jury will exonerate both Esso and Rene, or perhaps, leave Rene to
bear full responsibility for the plaintiff's damages. In view of
those possibilities, it would be inequitable to have Rene bound
by a negligence finding or a damages assessment that a jury might
not have rendered had it been aware that he was to be the sole,
primarily-responsible defendant.
We need not blind ourselves to the fact that juries are
apt to assess larger verdicts against major corporations than
against individuals. Indeed, the plaintiff's ploy in dismissing
Rene from the suit was clearly intended to focus the jury's
attention on the deep pocket defendant, Esso. In the
circumstances here, the new trial must extend to all parties and
to damages as well as liability.
II.
Because we have decided that a new trial must include
damages, we need not discuss at any length the defendant's
contention that the verdict was excessive. However, guidance on
some matters that may recur on the retrial may be helpful.
About a month and a half after the accident, plaintiff
returned to his job as a first class mechanic at the Virgin
Islands Water and Power Authority. He continued to work there
until shortly before the trial began. In early 1992, plaintiff
applied for, and received, a promotion to preventive maintenance
supervisory foreman, a position that paid approximately $44,000
per year. That was a substantial increase over the $30,000 he
11 received in 1991. His earnings in 1992 were approximately
$35,000, but the record does not disclose what part of that sum
included the higher pay for the supervisory position.
At trial, the plaintiff's actuarial expert, assuming
plaintiff would be permanently disabled, projected his gross loss
of income to be approximately $2 million. This calculation took
into account both anticipated earnings and projected inflation to
arrive at an annual increase of 5% over the plaintiff's current
earnings. The witness reduced the $2 million figure to its
present value of approximately $750,000.
In responding to a question from the plaintiff's
counsel on redirect examination, the expert said that, based on
actual earnings from 1991 through 1993, the average increase in
income was 16.1% annually, more than three times higher than the
5% figure that he had used in projecting the gross earnings loss.
Counsel then stated: "So instead of two million, you would have
a number of six million dollars, is that right?" The expert
replied, "Yes, ma'am, or close to it."
Two serious deficiencies undermine that testimony of
counsel and expert. There was no evidence on which the witness
could properly base an opinion that the plaintiff's gross
earnings would triple in the remaining seventeen years of his
service before retirement. The record contains no data on the
salary scales at the Water and Power Authority and nothing to
indicate that the plaintiff's experience and training would
qualify him for positions higher than the one he held at time of
trial. See Benjamin v. Peter's Farm Condominium Owners Ass'n,
12 820 F.2d 640, 642 (3d Cir. 1987) (requiring evidence to justify
prospective earnings); Gumbs v. International Harvester, Inc.,
718 F.2d 88, 98 (3d Cir. 1983) (same). The 16% average increase
primarily was the result of the warping of the earnings record
brought about by the substantial promotion from mechanic to
supervisory foreman. Moreover, at no time was the $6 million
projection reduced to present worth, an obligation that plaintiff
must shoulder. See Gorniak v. National R.R. Passenger Corp., 889
F.2d 481, 486 (3d Cir. 1989).
The $6 million figure apparently had an appreciable
influence on the size of the verdict. In his post-trial opinion
reviewing the damage award, the trial judge commented: "Plaintiff
presented evidence . . . that Mr. Williams' economic damages
alone might be estimated at almost 6 million dollars." Williams,
886 F.Supp. at 1239. "If the jury believed this testimony, then
the entire $4.5 million dollar award is actually lower than the
evidence revealed in the record of Mr. Williams' maximum economic
damages. If they believed this testimony, it is possible that
they came up with the $4.5 million award without even considering
any damages for pain and suffering. It is quite likely that the
jury did believe plaintiff's evidence since it was essentially
unrebutted by the defendants." Id. at 1241.1
1 Because he concluded that the loss of income made up such a large part of the award, the trial judge did not deem it necessary to review other cases involving similar injuries to determine the reasonableness of amounts awarded for pain and suffering. See Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768 (3d Cir. 1987); Couch v. St. Croix Marine Inc., 667 F.Supp. 223 (D.V.I. 1987); Erysthee v. El Nuevo Lirio Grocery, 25 V.I. 307 (D.V.I. App. Div. 1990). Such comparisons do provide some
13 Because of its misleading character, such unsupported
and speculative expert testimony should not be received into
evidence on the retrial.
Another ruling that requires some comment was the
exclusion of the testimony of Dr. Walter Pedersen, the
plaintiff's attending physician. Before the trial commenced, the
court ruled in limine that defendant could not call the physician
as a witness. Dr. Pedersen had treated plaintiff after the
accident and submitted a report to the plaintiff's attorney. She,
in turn, sent a copy to the defendant's counsel. About two years
later, in the final pretrial order, plaintiff submitted a list of
witnesses he proposed to call. Dr. Pedersen's name was not
included. The defense, however, as part of its pretrial
submission, listed Dr. Pedersen as a fact witness in its case.
After receiving the plaintiff's witness list, the
defendant's counsel met with Dr. Pedersen. Plaintiff had
previously executed a broadly-worded medical information release
that would permit such an interview. Defense counsel did not
tell the plaintiff's lawyer of his intention to discuss the
plaintiff's injury with the physician.
The trial court based its exclusionary ruling on three
grounds:
(1) despite local practice, defense counsel had failed
to notify the plaintiff's lawyer of the interview;
guidance for courts in considering whether a verdict is excessive and we commend the use of such data.
14 (2) the defense proposed to elicit expert opinion
evidence from Dr. Pedersen although he had been listed in its
pretrial submission as a fact witness; and
(3) Dr. Pedersen had not submitted a report of his
opinion to plaintiff as required by Fed. R. Civ. P. 26(b)(4)(B).
In DeMarines v. KLM Royal Dutch Airlines, 580 F.2d
1193, 1201-02 (3d Cir. 1978), we discussed the factors that must
be assessed in excluding a witness's testimony because of failure
to comply with pretrial notice requirements: 1. the prejudice or surprise in fact to the opposing party;
2. the ability of that party to cure the prejudice;
3. the extent to which the orderly and efficient trial of the case would be disrupted; and
4. bad faith in failing to comply with the court's order.
In addition, the significance of the practical importance of the
excluded evidence must be taken into consideration. Id. at 202.
See also Johnson v. H.K. Webster, Inc., 775 F.2d 1, 8 (1st Cir. 1985); Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984).
We find no evidence of surprise to plaintiff in the
rather unusual situation present here. Plaintiff had previously
obtained a report from Dr. Pedersen, and we may assume that he
had been interviewed by the plaintiff's counsel. There was no
indication that the trial would have been disrupted by receiving
the physician's testimony.
15 The trial court apparently felt bound by a local policy
articulated by the Territorial Court in Chase v. People's Drug
Store, 24 V.I. 183, 187 (Terr. Ct. 1989), which required the
plaintiff's counsel to be notified before a defense lawyer
interviewed an attending physician. Dismissing the written
authorization to release medical information, the district court
noted that despite similar waivers in Chase, the Territorial
Court adopted the practice of a New Jersey case, Stempler v.
Speidell, 495 A.2d 857 (N.J. 1985). Stempler required prior
notification to the plaintiff's counsel before defendant could
interview an attending physician.
We have reservations about the restrictions imposed in
Stempler and believe the better approach is expressed in
International Business Mach. Corp. v. Edelstein, 526 F.2d 37 (2d
Cir. 1975). There, the court referred to "time-honored and
decision-honored principles, namely, that counsel for all parties
have a right to interview an adverse party's witnesses (the
witness willing) in private, without the presence or consent of
opposing counsel and without a transcript being made." Id. at
42. We are concerned that the Chase holding hinders settlement negotiations and trial preparation by restricting the gathering
of relevant evidence in an informal fashion, thus requiring the
more expensive and time-consuming procedures of a formal
deposition.
Furthermore, by putting his physical condition at
issue, plaintiff waived the physician-patient privilege with
respect to the injuries claimed to have been incurred in the
16 accident. See 5 V.I. Code Ann. tit. 5, § 855(4) (1967); Fed. R.
Evid. 501.
In any event, even failure to follow the Chase
procedure would not provide sufficient cause to bar Dr.
Pedersen's testimony in this case where plaintiff had received a
report from the physician and had decided not to call him as a
witness. The 1970 Advisory Committee report to Fed. R. Civ. P.
26(b)(4) noted that for discovery purposes, an expert witness who
was an actor or viewer of the occurrence that is the subject
matter of the lawsuit should be treated "as an ordinary witness."
That same viewpoint is applicable here in the trial setting.
17 The significance of Dr. Pedersen's testimony is
apparent from the dispute over whether the plaintiff's back
condition was caused solely by the automobile accident in 1990.
Our review of the trial record reveals references to previous
injuries to the plaintiff's lower back in 1969, 1975, 1978, 1980,
1981, 1982 (two incidents), 1983, and 1986. In 1990, shortly
before the accident in this suit, he also had an x-ray of the
lower back.
Dr. Pedersen treated plaintiff for some of these
previous injuries as well as those incurred in the auto accident
in December of 1990. The extent of the plaintiff's disability
caused by the pre-existing injuries and that portion attributable
to the Rene collision are crucial in the determination of a
proper damage award. It seems likely that Dr. Pedersen's
testimony would be helpful to making an evaluation on causation,
and he should be permitted to testify at the retrial. Of course,
the trial court may require the defense to produce, in advance of
trial, a report by Dr. Pedersen of any additional matters,
including opinions that he intends to testify about, that had not
been included in any previous reports to, or interviews with, the
plaintiff's counsel.
18 Because other evidentiary matters raised by the defense
may be obviated on the retrial, we do not address nor decide them
at this juncture.
The judgment of the district court will be reversed and
the case remanded for a new trial. Costs to abide the event. ___________________________________