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SHELBY INSURANCE COMPANY v. KOZAK, ET AL.


SHELBY INSURANCE COMPANY
v. KOZAK, ET AL.


February 27, 1998
Record No. 971275

SHELBY INSURANCE COMPANY

v.

EDWARD A. KOZAK, ET AL.

OPINION BY SENIOR JUSTICE RICHARD H. POFF
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge
PRESENT: Carrico, C.J., Compton, Lacy, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice


In this appeal from a judgment for the plaintiff in a second
jury trial, the principal issue is whether the trial court erred
in limiting that trial to the issue of damages.

Edward A. Kozak (the plaintiff) filed a motion for judgment
against Eyad Bn-Khalifa (the defendant) claiming $1.5 million in
damages for personal injuries sustained in an automobile
collision. The plaintiff served the motion upon both the
defendant and Shelby Insurance Company (Shelby), which provided
uninsured motorist coverage to the plaintiff’s employer, Daniel
& Osborne Irrigation.

The accident occurred in Richmond near the middle of the
intersection of Augusta Avenue and Kent Road. The speed limit on
each road is 25 m.p.h. Traffic running east and west on Augusta
is controlled by stop signs erected at the intersection. The
defendant was driving a passenger car east on Augusta approaching
Kent. The plaintiff was operating his employer’s pickup truck
north on Kent approaching Augusta.

The investigating officer testified that the damage to the
pickup was "to the full front of it"; that the damage
to the car was "[t]o the right side, the right side, all to
the right side"; and that the defendant’s east-bound car had
come to rest on the curb at the corner opposite the point of
collision, facing in a westerly direction. The officer said that
the defendant estimated his speed approaching the intersection at
25 m.p.h. and that he said he "never saw the sign." In
answer to the officer’s inquiry, the plaintiff said that he had
approached the intersection at 20 m.p.h.

The plaintiff testified at trial that his speed was
"twenty-five miles per hour tops"; that, when he was
"2 car lengths" from the intersection, he saw the
defendant’s car "[m]aybe 6 car lengths back"; and that
he had "seen the stop sign" on Augusta but did
"not know for sure" whether the defendant had stopped
before he entered the intersection. Asked by his counsel if he
had testified earlier that he had been "hit right in front
of the driver’s door on your truck", the plaintiff said that
"the impact was on the left front of my car. I don’t say it
was in my door. If I did, that was a mistake."

The plaintiff then described the injuries he had sustained in
the collision, the medical treatment he had received, the
suffering he had endured, the medical expenses he had incurred,
and the wages he had lost during his convalescence. He had
received $75,925.93 in medical bills, and he claimed $42,240 in
lost wages.

The defendant testified that he was travelling at a speed of
25 m.p.h. approaching the intersection. Asked to explain his
"version of the story of this accident", the defendant
said:

Okay. Before I get to that intersection there is a lot of
cars parked on my right. So I stop at the stop sign. I looked
to the left, then to the right, then to the left again. Both
was clear for me, then I moved to the middle of the street.
Before I get to the middle, . . . my friend was
shouting my name and the accident happened.

Aiman Al-Ammir, a passenger in the front seat of the
defendant’s car, testified that the defendant "stopped at
the stop sign"; that both the defendant and he "looked
both ways"; and that he "didn’t see any cars." He
said that, when they had "almost passed the middle of the
intersection", he saw the pickup "coming fast";
that he "yelled" out the defendant’s name; that
"the collision took place"; and that "[o]ur car
was turned like 180 degrees."

At the conclusion of all the evidence, the plaintiff moved to
strike the defendant’s evidence and submit the case to the jury
limited to the question of damages. The trial court overruled
that motion and instructed the jury on all issues related to both
liability and damages.

The jury returned a verdict awarding the plaintiff
"damages at $50,000.00 with no interest." The plaintiff
moved the court to set the verdict aside as inadequate and to
limit a new trial to the issue of damages. The defendant asked
the court to set aside the verdict and grant a new trial on all
issues. The trial court granted the plaintiff’s motion. The
second jury returned a verdict awarding the plaintiff $400,000 in
damages, and we awarded Shelby an appeal.

I

In one of three assignments of error, Shelby contends that the
trial court erred in limiting the second trial to the issue of
damages.

In support of a motion to set aside the first verdict, the
plaintiff’s counsel argued in the trial court that "it’s a
compromise verdict" and that "[a] verdict of less than
the specials, by our Supreme Court, cannot stand."
Responding to that argument, the trial court said, "My
rulings have been if the special damage is uncontested and [the
verdict] is way below the special damages, the Court sets the
verdict aside and only set [sic] the case for retrial on
damages".

We find no error in the trial court’s denial of the
plaintiff’s motion to submit the case to the jury at the first
trial limited to the question of damages and in granting the
defendant’s instruction on the definition and effect of a
plaintiff’s contributory negligence. Nor do we find error in the
court’s decision to set aside the verdict in the first trial. But
we are of opinion the court erred in limiting the issue in the
second trial to damages.

The trial court apparently applies its rulings with respect to
setting aside verdicts and limiting the retrial to damages only
to cases in which "the special damage is uncontested and
[the verdict] is way below the special damages". However,
those rulings overlook the decisions of this Court in cases in
which it appears that the inadequacy of the damage award was the
result of a compromise reached by the jury.

In Rawle v. McIlhenny, 163 Va. 735, 177 S.E. 214
(1934), we defined the rules with respect to setting aside
verdicts in five classes of cases. Concerning the class relevant
here, we said:

In the fifth class of cases where . . . the
evidence with reference to liability has probably exerted a
material influence upon the jury in determining the amount of
the verdict, or the evidence warrants the inference that,
instead of deciding the question of liability, the jury has
arbitrarily determined to make both parties bear a part of
the burden of the injury, . . . [and] the court
sets aside a verdict of this class, it should grant a new
trial on all issues.

In all five classes a sound discretion is vested in the trial
court as to whether . . . a new trial should be granted
upon all issues, or limited to the question of damages
. . . . However, in the exercise of this discretion it
is always to be borne in mind that, before a new trial should be
limited to the amount of damages, it should be reasonably clear
that the misconduct or misconception of the jury from which the
inadequacy of the verdict has resulted, has not extended to its
determination of the question of liability as well as to its
determination of the amount of damages.

163 Va. at 750-51, 177 S.E. at 221.

The issue of liability at the first trial was contested. The
jury may have accorded the recollection of the investigating
officer that the defendant said at the time of the accident that
he had not seen the stop sign greater weight than the testimony
of the defendant and his friend. And, considering the testimony
concerning the location of the damage to the respective vehicles
and the force of an impact sufficient to turn the defendant’s car
from an eastward course to a westward heading, the jury could
have rejected the plaintiff’s testimony that he was not exceeding
the 25 m.p.h. speed limit as he approached and entered the
intersection.

Applying the principles defined in Rawle, we will
reverse the ruling limiting the issue in the second trial to
damages and remand the case for a new trial on all the issues.

II

In another assignment of error, Shelby contends that the trial
court "erred in the first trial by refusing to admit the
estimate of the Plaintiff’s speed by [the defendant's] passenger." Because that question may arise in a new trial
on remand, we will consider it now.

Al-Ammir, the passenger in the defendant’s car, testified
that, when he first saw the pickup, it was "two and a half
car lengths away from the middle of the intersection where we
were"; that it was "coming fast"; and that he
"yelled" out the defendant’s name, and "the
collision took place." Asked if he could "make an
estimate of the speed of the truck", Al-Ammir replied,
"[y]es, 45 to 50." The trial court sustained the
plaintiff’s objection to the answer.

In Moore v. Lewis, 201 Va. 522, 111 S.E.2d 788 (1960),
we applied the rule that, "[i]n order to be competent to
testify on the [speed of an automobile] the witness must have had
a reasonable opportunity to judge the speed of the
automobile." We explained that when a witness has only a
brief opportunity or interval of time to observe the speed of the
vehicle, that fact affects only the weight of his testimony and
not its competency. 201 Va. at 525, 111 S.E.2d at 791. In further
explanation of the rule, we noted that

"[a]n estimate of the speed at which an automobile
was moving at a given time is generally viewed as a matter of
common observation rather than expert opinion, and it is
accordingly well settled that any person of ordinary
experience, ability, and intelligence having the means or
opportunity of observation, whether an expert or nonexpert,
and without proof of further qualification may express an
opinion as to how fast an automobile which came under his
observation was going at a particular time. The fact that the
witness had not owned or operated an automobile does not
preclude him from so testifying. Speed of an automobile is
not a matter of exclusive knowledge or skill, but anyone with
a knowledge of time and distance is a competent witness to
give an estimate; the opportunity and extent of observation
goes to the weight of the testimony."

Id. at 525, 111 S.E.2d at 790 (citation omitted); see
also Greenway v. Commonwealth, 254 Va. 147, 151-52;
487 S.E.2d 224, 227 (1997).

The plaintiff argues that the trial court properly found that
Al-Ammir was not competent to estimate the speed of the pickup
truck because he had only "a momentary glimpse of [the
truck] some two car lengths away."

In response, Shelby contends that, because Al-Ammir testified
that he saw the truck at a specific distance prior to impact and
that he could provide an estimate of speed, the trial court
should have admitted his estimate and allowed the jury to
determine what weight to accord the testimony. We agree.

The witness testified that he observed the automobile when it
was two and a half car lengths away and that, moments later, the
collision occurred. We think this testimony was sufficient to
show that he was a person "with a knowledge of time and
distance" and competent "to give an estimate" of
the vehicle’s speed. Al-Ammir’s "opportunity and extent of
observation" was a factor for the jury to consider in
determining the weight to be accorded evidence relevant to the
issue of liability. We hold, therefore, that the trial court
erred in ruling that this testimony was inadmissible.

III

In support of a third assignment of error, Shelby argues that
the trial court erred in the conduct of the first trial by
refusing to admit its proffer of a "Petition to Grant a
Restricted Permit to Drive a Motor Vehicle" filed by the
plaintiff pursuant to Code ? 46.2-391. The petition
reported that the plaintiff had been "addicted to and
psychologically dependent upon the use of alcohol"; that he
had incurred prior convictions for driving under the influence of
alcohol; and that his driver’s license had been suspended for a
period of three years. The petition also stated that the
plaintiff had "presented himself for an evaluation by the
John Tyler Alcohol Safety Action Program" and that he
"is no longer addicted to . . . the use of alcohol
. . . and he does not constitute a threat to
. . . others with regards to the driving of a motor
vehicle . . . ."

Counsel for Shelby acknowledged at trial that he had "no
evidence that drinking played any role in this accident." We
find none of record. Hence, the petition was inadmissible as
irrelevant and prejudicial, see DeWald v. King, 233
Va. 140, 146, 354 S.E.2d 60, 63 (1987), and we will uphold the
trial court’s ruling in the first trial excluding Shelby’s
proffer.

Shelby also contends that the trial court "prevented
Shelby from proving that the plaintiff’s job required him to
possess a license and that he was claiming lost wages during a
time he did not possess a license." We find no merit in that
contention. The record of the second trial shows that the trial
court allowed just such testimony delivered by Patrick Conner and
Charles Osborne, respectively, the operations manager and
president of the plaintiff’s employer, witnesses called and
interrogated by Shelby’s counsel.

In summary, we will reverse the ruling of the trial court in
the first trial limiting the second trial to the issue of
damages, annul the judgment entered in the second trial, and
remand the case for a new trial on all the issues.

Reversed and remanded.

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