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«IN THE COURT OF APPEALS OF INDIANA RICKY WESTRAY, RICHARDSON MOVING & ) STORAGE, BEKINS VAN LINES CO., and ) MIAMI VALLEY MOVING & STORAGE, INC., ) ) ...»

-- [ Page 1 ] --

FOR PUBLICATION

ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:

KARL L. MULVANEY TERRENCE M. RUBINO

NANA QUAY-SMITH Rubino, Crosmer, Smith & Sersic

Bingham McHale LLP Dyer, Indiana

Indianapolis, Indiana

ATTORNEYS PRO HAC VICE:

EDWARD M. KAY PAUL V. ESPOSITO Clausen Miller, P.C.

Chicago, Illinois IN THE

COURT OF APPEALS OF INDIANA

RICKY WESTRAY, RICHARDSON MOVING & )

STORAGE, BEKINS VAN LINES CO., and ) MIAMI VALLEY MOVING & STORAGE, INC., ) ) Appellants-Defendants, ) ) vs. ) No. 45A04-0405-CV-275 ) DOLORES WRIGHT, JOHN WRIGHT and ) SAMUEL WRIGHT b/n/k DOLORES WRIGHT, ) ) Appellees-Plaintiffs. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Robert Pete, Judge Cause No. 45D05-9712-CT-2394 September 14, 2005

OPINION - FOR PUBLICATION

BAKER, Judge Appellants-defendants Ricky Westray (Westray), Richardson Moving & Storage (Richardson), Bekins Van Lines Co. (Bekins), and Miami Valley Moving & Storage, Inc.

(Miami Valley) (collectively, appellants) appeal from the trial court’s rulings on a number of evidentiary issues, denial of their motion for judgment on the evidence, and denial of their motion to correct error. Following a concession made by appellants’ counsel at oral argument1 that dispensed with a number of appellants’ arguments, the sole argument we must address is whether the punitive damages award was inappropriate because there was insufficient evidence to show that Westray had the required obdurate mental state.

The Wrights cross-appeal, contending that the trial court improperly reduced the jury’s original punitive damages award because: (1) it should have taken into account the aggregate harm suffered by all of the accident victims in calculating the statutory cap on punitive damages; and (2) because their attorneys filed a lien against the entire punitive damages award, the trial court should not have been able to reduce the award thereafter.

Concluding, among other things, that the jury’s award of punitive damages was inappropriate because there was not clear and convincing evidence that the appellants acted with the mental state sufficient to sustain such an award, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

We heard oral argument in this case on August 25, 2005, in Indianapolis. We commend counsel for their able presentations.

–  –  –

This case arises out of a motor vehicle accident that occurred near the intersection of Interstate 65 and the Indiana Toll Road on December 23, 1996. Westray is a professional truck driver on Richardson’s payroll who was driving a semi truck on the night in question.

Richardson and Miami Valley are sister corporations, and Richardson is an agent of Bekins.

On December 23, Westray was driving a Bekins truck with the names of Richardson and Miami Valley on its side.

At approximately 9:00 p.m. on that evening, Westray’s truck rear-ended a stopped vehicle driven by Dolores. 2 The parties vigorously dispute the series of events leading up to the accident. Westray was delivering household furnishings from Dayton, Ohio, to Waukegan, Illinois. He was alone, was not listening to the radio or a CD, and had an open map on his passenger seat. He had been driving for just over four hours prior to the accident, and there was no evidence that he was drowsy, intoxicated, or otherwise affected by any foreign substance. Westray recalls the roads being misty from drizzling rain, but an eyewitness remembers the road being dry.

As Westray approached the intersection, he traveled over rumble strips and past a sign indicating an upcoming traffic light. He estimates that he was traveling at approximately 55 miles per hour—within the legal speed limit—while an eyewitness estimates Westray’s speed Westray’s truck also struck another vehicle, but the claims of the people in that vehicle are not at issue in this case.

to have been approximately 35 to 40 miles per hour. He noticed an upcoming green traffic light and proceeded toward it. He also observed vehicles in the right-hand lane ahead of him, but at the time he looked up, there were no vehicles in the left-hand lane in which he was traveling.

Westray noticed in his rearview mirror a white vapor or smoke coming from the rear passenger side of the trailer, and he became concerned that his truck was experiencing mechanical problems. Westray either continued to pay attention to the vapor emanating from his truck or he looked down at the open map on the seat next to him to verify driving directions. Regardless of the reason, his period of inattention to the road lasted for approximately five to ten seconds. Tr. p. 318-19. While Westray paid attention to the vapor or the map, the light changed from green to red, and the Wrights’ car moved from the righthand lane into the left-hand lane, directly in front of Westray. When Westray again looked ahead at the road, the Wrights’ car was ten to twenty feet directly ahead of him, and he could not brake quickly enough to avoid a collision. Westray denied that he was looking at the open map just before the accident. There were no skid marks on the pavement leading up to the point of impact.





In addition to Dolores, who was driving, seated in the rear of the Wrights’ vehicle were Samuel—then two and one-half years old—and Dolores’s mother-in-law and aunt.

Samuel was thrown from the car, sustaining bruises and later experiencing nightmares, but was doing well at the time of trial. Dolores sustained bruises, soft tissue injuries, a scalp laceration, a probable concussion, and brain injuries leading to mild brain damage. Dolores’s mother-in-law and aunt were killed. 3 The accident scene was particularly grisly because one of the deceased passengers was decapitated in the collision, and Dolores and Samuel—both conscious following the accident—were forced to view the gruesome scene as they awaited emergency personnel. Dolores has virtually no memory of the accident itself and continues to suffer from post-traumatic stress disorder (PTSD) as a result of the accident and its aftermath.

Indiana State Trooper David Eggers was the motor carrier enforcement officer dispatched to the scene. Trooper Eggers inspected Westray’s vehicle for violation of federal regulations, and found seven equipment violations: a hole in the brake chamber, a spring problem on a parking brake, worn tires, rear brake lights, marker lights at the top of the trailer, an unmounted valve, and marker lights at the lower center of the trailer. Trooper Eggers testified that the violation involving the rear brake lights was serious enough to remove the vehicle from service, and further testified that none of the equipment violations contributed to the accident. There was no evidence that Westray consciously disregarded any existing violation.

–  –  –

Westray began driving for Bekins in 1985. Between 1985 and 1988, Westray was involved in four motor vehicle accidents, and his record includes a note indicating that all accidents appear on employees’ driving records regardless of fault. Westray’s record also indicates a number of citations for speeding.

The claims of Dolores’s deceased aunt and mother-in-law are not at issue in this case.

In 1996, Bekins received the Department of Transportation’s highest safety rating of “satisfactory.” Tr. p. 739. Bekins had a policy of suspending drivers who had “more than three moving traffic violations during the immediate 12 months prior to qualification....” Pl. Ex. 84B p. 3. This was a rolling calendar system such that the first calendar day of the rolling twelve-month period would drop off with each succeeding day. Pursuant to this policy, in 1990 Bekins suspended Westray for having more than three violations in the immediate twelve-month period.

–  –  –

On December 26, 1997, the Wrights sued the appellants, alleging that the appellants were negligent and acted with gross negligence or a willful, wanton, and conscious disregard for the Wrights’ safety. Additionally, John filed a claim for loss of consortium. The Wrights requested compensatory and punitive damages. Westray admitted that he negligently operated his truck but denied gross negligence and willful and wanton misconduct. Bekins denied all wrongdoing. All denied liability for punitive damages.

The trial began on January 26, 2004. At trial, the Wrights offered into evidence a color photograph of Dolores’s aunt’s covered body lying on the ground at the accident scene.

The trial court admitted the photograph over the appellants’ objection that the photo was gruesome and highly prejudicial. Additionally, the Wrights offered evidence, over the appellants’ objection, that in 2001—five years after the accident—the Department of Transportation fined Bekins $35,000 for logbook falsification.

The Wrights also presented expert testimony regarding Dolores’s future wage and benefit loss as a result of the accident. Prior to the accident, Dolores was earning approximately $36,000 annually. She returned to work immediately after the accident and never earned less than $36,000, and at the time of trial she was earning $44,500 annually. At the time of the accident, she was a legal secretary for a Chicago law firm. On crossexamination, she testified that she was not a certified local area network level 3 (LAN-3) operator and has never taken classes to become certified. Dolores also admitted that she had previously failed the examination to become a Novell software administrator, and was unfamiliar with the term “LAN-3 operator.” Tr. p. 572. But the Wrights’ expert economist estimated her future lifetime wage and benefit loss to be over $1.5 million, basing his opinion on instructions from the Wrights’ attorney to assume that Dolores would have been a LAN-3 operator within 5 years if not for the accident. The trial court denied the appellants’ motion to bar the expert testimony, ruling that issues with respect to the bases for his opinions merely affected the weight of his testimony.

Additionally, the trial court overruled appellants’ objections to two jury instructions.

One regarded Dolores’s alleged loss of earnings. The second regarded Bekins’s alleged violation of 21 Indiana and federal statutes and regulations, instructing the jury that “If you find from a preponderance of the evidence that the defendants violated any of these Federal or State regulations or statutes on the occasion in question and that the violation was without excuse or justification, such conduct would constitute negligence, and may also constitute gross negligence or willful, wanton, or conscious disregard for the safety and rights of others on the part of the defendants.” Tr. p. 947. The appellants objected to this instruction, arguing that the Wrights had failed to show any causal connection between the violations and the accident.

The appellants twice moved for judgment on the evidence as to punitive damages, and the trial court denied both motions. On January 30, 2004, the jury returned a verdict against the appellants and awarded compensatory damages as follows: $1,020,000 to Dolores;

$25,000 to Samuel; and $100,000 to John. The jury also awarded punitive damages of $15,000,000 to the Wrights without allocation. On February 11, 2004, the Wrights’ attorney filed a lien on the punitive damages award.

On March 1, 2004, the appellants filed a motion to correct error seeking judgment or a new trial as to the punitive damages claim. They also requested a reduction of the punitive damages award to $3,435,000 pursuant to Indiana Code section 34-51-3-4. 4 On April 23, 2004, the trial court reduced the punitive damages award to $3,435,000 but otherwise denied appellants’ motion. The appellants appeal the denial of their motions for judgment on the evidence and motion to correct error, and the Wrights cross-appeal the trial court’s reduction in the punitive damages award.

–  –  –

Indiana Code section 34-51-3-4 requires that a punitive damages award may not exceed three times the amount of the compensatory damages award. In this case, the jury awarded a total of $1,145,000 in compensatory damages to the Wrights. Originally, its punitive damages award totaled $15,000,000, which exceeded the statutory limit. Accordingly, the trial court reduced the punitive damages to $3,435,000, which is three times the amount of the compensatory damages award.

A. Oral Argument In the appellants’ brief, they raise a number of contentions apart from their argument regarding the punitive damages award. In particular, they contend that the trial court erred in: (1) admitting a photograph of the covered body of Dolores’s aunt at the scene of the accident; (2) permitting a witness to testify that Bekins paid a $35,000 fine in 2001—five years after the accident—for logbook falsification; (3) instructing the jury regarding the twenty-one Indiana and federal statutes and regulations allegedly violated by Bekins even though there was no causal link between the violations and the accident; and (4) admitting the Wrights’ expert testimony regarding Dolores’s future wage and benefit loss and by instructing the jury as to that loss.



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