PRESENT: Carrico, C.J., Compton, Lacy, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
SHELBY INSURANCE COMPANY
OPINION BY
v. Record No. 971275 SENIOR JUSTICE RICHARD H. POFF
February 27, 1998
EDWARD A. KOZAK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
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
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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
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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
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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.
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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
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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).
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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
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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
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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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