Court: Mississippi Supreme Court; February 26, 1989; Mississippi; State Supreme Court
Andrew Welter filed a lawsuit against Thua Van Tran and Tan Minh Pham following a head-on automobile collision. Pham counterclaimed for damages, as did Tran for the damage to his vehicle. The jury found Welter 40% negligent and Pham 60% negligent, awarding $40,000 in damages to Welter and $30,000 to Pham, while Tran received no damages. After the judgment, Tran and Pham filed for additur or a new trial regarding their damages. The trial court granted Tran an additur of $2,500, reduced by 60% due to Pham's negligence, but denied Pham's motions for remittitur and additur regarding Welter's damages. Pham appealed, asserting the trial court erred in its rulings on his motions. Welter cross-appealed, alleging errors in jury instructions and that the verdict was against the overwhelming weight of the evidence. The Supreme Court of Mississippi granted Pham a $30,000 additur or, alternatively, a new trial solely on damages. The facts of the case indicate a significant discrepancy in the accounts of the accident, with Welter claiming Pham's vehicle, owned by Tran, crossed the center line due to poor tire conditions, a claim supported by multiple witnesses.
Corroborating testimonies from Biloxi Police officers James Beese and Terry Tirrell, who responded to the accident scene, indicated that debris was found in the east-bound lane and skid marks were observed transitioning from the west-bound lane. Photographs confirmed a head-on collision between the vehicles. Contrarily, Pham claimed he was traveling west on Howard when a station wagon ran a stop sign on Claiborne Street, striking his vehicle on the right and pushing it into the east-bound lane. Witnesses, including Mui No and Barbara Adams, also testified seeing the station wagon run the stop sign, though Adams, under medication and not wearing prescribed glasses, later faced credibility issues during cross-examination.
Welter presented various witnesses to detail his pain and suffering from the accident, while Pham and medical experts testified about his own suffering. The trial judge initially ruled out comparative negligence but later issued Instruction C-20, which allowed the jury to determine the negligence percentages of both drivers. The jury concluded that Welter incurred $40,000 in damages and Pham $30,000, assigning 60% negligence to Pham and 40% to Welter.
State Farm Mutual Automobile Insurance Company, representing Welter, sought to correct the judgment per Mississippi law, while Pham requested an additur for his damages and a remittitur for Welter's. The trial court denied these motions. Pham subsequently appealed, and Welter cross-appealed. There were procedural disputes involving the representation of Welter during trial, leading to conflicting assignments of error, including Pham's claim that the trial court wrongly denied his motion for additur or a new trial regarding damages.
Pham claims actual special damages of $28,682.70, while the jury awarded him $30,000, which includes $1,327.30 for pain and suffering after accounting for his 60% negligence. He contends that this compensation is insufficient. The assessment of his claim for inadequate pain and suffering compensation requires a review of Miss. Code Ann. 11-1-55 (Supp. 1986), which allows for additur or remittitur if the jury's award is deemed excessive or inadequate due to bias, prejudice, or evidence weight. The court may grant additur if it finds jury influence by bias or if damages contradict credible evidence. The decision references the precedent set in James v. Jackson and emphasizes that evidence of jury bias is inferred from the damage amount compared to the actual evidence presented. The jury considered several damage elements: past and future pain and suffering, medical expenses, lost wages, and future disability. Pham provided substantial evidence of significant injuries sustained in an accident, including a head injury, a fractured femur, and internal organ damage requiring immediate surgery. His medical treatment included exploratory surgery revealing severe internal injuries and subsequent orthopedic surgery to stabilize his leg fracture with a metal device.
Pham underwent significant medical procedures, including future surgery to remove an intermedullary rod, catheterization, and placement of a Penrose drain to assist kidney drainage. He received pain management with Demerol and Darvocet and spent 12 days in ICU, followed by a total of approximately six weeks in the hospital from July 28, 1984, to August 25, 1984. In follow-up visits, Dr. Drake noted ongoing issues, including swelling, pain, and minimal rotary deformity in Pham's leg. Testimony indicated Pham experienced severe pain and unusual sensations due to the metal in his leg.
The jury found that Pham presented adequate evidence of pain and suffering but deemed their award for future pain and suffering inadequate, suggesting potential bias. Pham's documented medical expenses totaled $28,682.70, which included bills from various medical providers and anticipated future surgery costs. The jury awarded $30,000 in total damages, which was only slightly above the special damages, suggesting they did not fully account for pain, suffering, or permanent disability.
Pham also claimed lost wages of approximately $500 for two months, which were factored into his special damages. The court noted that the jury's decision did not reflect the evidence supporting Pham's claims of pain, suffering, and permanent partial disability. Consequently, the court determined that a rational juror could reasonably find $60,000 as the minimum damages owed to Pham. An additur of $30,000 was ordered to adjust the jury's award to better reflect the evidence presented.
The order is based on the jury being potentially swayed by 'bias, prejudice, or passion,' leading to damages that contradict the substantial credible evidence. Upon remand, Welter can choose to accept an increased damage award of $60,000 for Pham, adjusted for Pham's 60% negligence, or opt for a new trial focused solely on damages.
Welter contests the lower court's decision to issue a comparative negligence instruction (C-20), arguing there was insufficient evidence to support such an instruction and that the accident could not be attributed to the negligence of both parties. He cites case law indicating that comparative negligence is inapplicable when one party's negligence is the sole proximate cause of the injury.
The court references Akin v. Cowie and Morrell Packing Co. v. Branning, establishing that it is not erroneous to grant a comparative negligence instruction even when both parties claim the other's negligence was solely responsible for the accident. The jury is tasked with evaluating all evidence and determining the negligence of each party. The court concludes there was sufficient evidence to support the comparative negligence instruction, affirming that the trial court acted correctly in providing it.
Additionally, the document raises two propositions regarding whether the trial judge erred in overruling a Motion to Correct Judgment, without detailing the outcomes of those propositions.
Andrew Welter, the appellant/cross-appellant, is represented by two law firms: Russell S. Gill for his original claim against Tan Minh Pham and Floyd G. Hewitt, Jr. and Peter C. Abide of Bryan, Nelson, Schroeder and Compton, who were hired by Welter's automobile liability insurer, State Farm, to handle Pham's counter-claim. A conflict arose between Welter's attorneys regarding the issues to be addressed in the trial and brief. State Farm's attorneys allegedly abandoned Welter's interests in favor of the insurer, while Gill remained loyal to Welter.
In Assignment VI-A, State Farm's counsel cites Miss. Code Ann. 11-7-69, which mandates that if a plaintiff's demand is valid and exceeds the defendant's, the plaintiff is entitled to only the excess amount, and vice versa. The jury awarded Welter $40,000 and Pham $30,000 on their respective claims. After adjusting for comparative fault, the trial court's judgment on June 18, 1986, allowed Welter to recover $24,000 and Pham $12,000. However, according to the statute, there should only be one net judgment, which should have favored Welter by $12,000.
In Assignment VI-B, Welter agrees that the verdicts should offset each other, but contends the trial judge failed to do this, which he argues is unjust and contradicts public policy. Welter questions why State Farm would benefit financially while he pays for Pham's damages due to the reduction in his verdict. He posits that the statute should not apply blindly to insured parties. The court acknowledges Welter's concerns are valid and cites a similar Florida case where the court rejected a 'set-off' interpretation that would unjustly relieve an insurer from its contractual obligations.
The Florida Supreme Court in Bournazian established that the 'set-off' concept is applicable only between uninsured parties in a negligence case, or between insured parties to the extent that their insurance does not cover mutual liabilities. This ruling clarifies that set-off does not impact the contractual obligations of liability insurance carriers to compensate their insureds for amounts for which they are legally responsible. The court rejected Stuyvesant Insurance Company's argument that the amount owed should be calculated after applying a set-off, stating that such a view misinterprets liability under comparative negligence. The court emphasized that applying set-off would undermine the insurance contracts and lead to unjust reductions in recovery for insured parties. For instance, without a set-off, both parties would receive compensation from their respective insurers based on their proportional fault. However, with a mandatory set-off, one party's recovery would be substantially reduced, benefiting the insurance companies at the expense of their insureds. The court aligned with the principle that liability insurance should protect insured individuals from bearing costs related to their negligence, as supported by California's legal precedent in Jess v. Herrmann, which similarly rejected the notion of set-off in cases where both parties have adequate insurance. The ruling underscores the importance of public policy and fairness in ensuring that insurance does not unjustly favor insurers over insured parties.
The court determined that the statute 11-7-69 does not reduce an insurer's obligation to fulfill its contractual duties. The actions of State Farm Mutual's attorneys, who represented Welter but attempted to penalize him by advocating for the set-off of separate verdicts, were addressed critically. The court emphasized the need for attorneys to adhere to professional conduct rules, particularly Rule 1.7 on Conflict of Interest, highlighting that dual representation benefiting one client over another is unethical. A liability insurance policy mandates that the insurer provide a defense and select the attorney, but this does not allow for defenses that harm the insured's financial interests. The court criticized the law firm for abandoning Welter at a crucial litigation phase, emphasizing that Welter was entitled to representation for which he paid through his premiums.
The jury's instruction on contributory negligence was deemed appropriate, and the court found Pham's evidence of pain and suffering compelling, ordering a $30,000 additur to his damages or, if Welter declines, a new trial on damages. The court ruled that the concept of set-off proposed by State Farm was inapplicable to prevent the insured from receiving full recovery while benefiting the insurer. The court cautioned attorneys against actions conflicting with established ethical standards. The Circuit Court's judgment on damages was affirmed, with the addition of the $30,000 to Pham's award or a new trial at his option. The jury's findings regarding Welter's damages were also upheld.
Judges Hawkins, Prather, Robertson, Sullivan, Anderson, and Pittman concurred, while Chief Justice Roy Noble Lee dissented without providing an opinion. Judge Dan M. Lee dissented regarding part I but concurred with parts II and III. Presiding Justice Hawkins, in a special concurrence regarding the denial of the Petition for Rehearing, affirmed that Mississippi Code Annotated § 11-7-69 is effective when opposing parties have valid claims against each other, allowing the court to compute net damages by subtracting the lesser claim from the greater. However, he highlighted a significant drawback when claims involve liability insurance, which may disadvantage individuals in favor of insurance companies. He agreed with the majority that the statute should not apply in such cases and suggested that circuit courts consider severing trials between plaintiffs and counter-plaintiffs under MRCP Rules 20(b) and 40(b) to avoid similar issues. He noted that the situation in this case differed from Hartford Accident Indemnity Co. v. Foster, as Welter had retained his own counsel, and the insurance carrier could also employ separate counsel. The insurance counsel did not mislead Welter and had an ethical duty to inform the insurance carrier about the potential implications of the statute. Hawkins advised that it would have been prudent for the insurance attorney to notify the court of any conflict and seek the option for the insurance company to safeguard its interests.
An attorney's independent representation of an insurance company in a legal matter was deemed inappropriate but not a serious ethical breach. The court acknowledged that the insurance carrier had the right to assert its position through legal counsel. The attorney's representation did not disadvantage Welter compared to having a different attorney. It emphasized the ongoing learning process within the legal field for both courts and practitioners. The court also noted that Welter's counsel should have had the opportunity to respond to criticisms in the original opinion, which was afforded during the rehearing process. Although the original opinion will be modified, the petition for rehearing is denied. Additionally, the document outlines ethical guidelines prohibiting lawyers from representing clients if such representation is directly adverse to another client without informed consent, and also highlights the need for clients to understand the risks involved in such representation.
