Kubista v. Romaine

Pearson, J.

(dissenting)—I am impelled to dissent from the conclusion of the majority that exclusion of the offered evidence was reversible error. I base my dissent on three grounds: (1) the offer of proof was insufficient to apprise the court of the grounds for admissibility; (2) the offered *68evidence does not demonstrate any logical relationship with the fact to be established, and consequently no relevancy is demonstrated; and (3) assuming arguendo some relevance in the offered evidence, the exclusion was not an abuse of discretion when weighed against established legal principles and policy considerations.

The first reason for my dissent is founded upon the fact that the offer of proof merely suggested that the proffered testimony was necessary to refute the defense assertion that plaintiff could have, from a medical standpoint, returned to work rather than attend school. This offer did not specifically assert relevancy or any other legal ground for its admissibility. The trial court was left to speculate as to whether plaintiff thought the evidence should be allowed (1) as an admission, (2) under principles of estoppel, or (3) as relevant to some specific fact in issue.

In Tomlinson v. Bean, 26 Wn.2d 354, 361, 173 P.2d 972 (1946), Judge William J. Steinert, speaking for a unanimous court, stated:

The principle upon which we decide this case is that it is the duty of a party to make clear to the trial court what it is that he offers in proof, and the reason why he deems the offer admissible over the objections of his opponent, so that the court may make an informed ruling. If the party fails to so aid the trial court, then the appellate court will not make assumptions in favor of the rejected offer.

(Citations omitted.)

The trial court is not required to cast about for reasons for which the evidence was offered. Tomlinson v. Bean, supra. The majority mistakenly views the offer of proof as asserting a claim of relevancy. At best, however, the offer suggests a vague theory of equitable estoppel, as I shall discuss later; i.e., since the adjuster encouraged plaintiff to undertake vocational rehabilitation is would be unfair to allow defendant to contest the need thereof. Because the trial court was required to speculate on the grounds for admissibility, the offer of proof was insufficient.

*69Secondly, I dissent because the proffered testimony does not tend to prove any material fact which was in issue. The traditional standard for relevancy is whether the evidence gives rise to reasonable inferences regarding contested matters or sheds any light upon them. State v. Schock, 41 Wn.2d 572, 250 P.2d 516 (1952); State v. Whalon, 1 Wn. App. 785, 464 P.2d 730 (1970). Relevancy means a logical relationship between evidence (offered) and the fact to be established. Chase v. Beard, 55 Wn.2d 58, 346 P.2d 315 (1959).

The majority erroneously assumes that the ultimate fact in issue was whether plaintiff acted reasonably in electing to go to vocational school, rather than return to work. The precise question, however, was whether the automobile accident proximately caused a disability which precluded plaintiff’s return to his former work, so that vocational rehabilitation was reasonably necessary. See WPI 30.01,1 6 Wash. Prac., at 145, and 30.07, at 153 (1967). If so, then his wage loss would extend through the period of plaintiff’s vocational rehabilitation and the reasonableness of this item of damages would be factually established. This is primarily a medical question.

Two prominent orthopedic specialists disagreed upon the nature and extent of plaintiff’s disability stemming from the automobile accident. Plaintiff’s physician, Dr. Robert Florence, who performed the back surgery and followed plaintiff through the recovery period, testified that he advised plaintiff not to return to his former specialties—ship-fitter and boilermaker—with the risk of aggravating his back by heavy lifting and bending, and that he should seek vocational rehabilitation. Plaintiff followed this professional advice. Defendant’s physician, Dr. David Millett, concluded that plaintiff’s post-surgery recovery was suffi*70cient to allow him to return to his former work, if he would lose weight.

On this state of the evidence, the jury was simply required to evaluate the conflicting testimony and decide whether plaintiff’s disability stemming from the automobile accident required him to be retrained. Statements made by an insurance adjuster, who at most encouraged plaintiff to follow his own doctor’s advice, could not shed any light on the medical necessity for plaintiff’s action.

It is axiomatic that determinations of relevancy of evidence are matters within the sound discretion of the trial court, reviewable only for manifest abuse of discretion. Ladley v. St. Paul Fire & Marine Ins. Co., 73 Wn.2d 928, 442 P.2d 983 (1968); Stuart v. Consolidated Foods Corp., 6 Wn. App. 841, 496 P.2d 527 (1972).

Given the facts of this case, the remote relevancy, if any, of the evidence, and the inadequacy of the offer of proof, I fail to see that an abuse of discretion has occurred justifying a conclusion of prejudicial error.

But even assuming for the sake of argument some relevancy to the offered testimony, and that the trial court was adequately apprised of the grounds and was able to make an informed ruling, it is my opinion that under the existing law, which is supported by sound considerations of policy, the trial court’s ruling was not an abuse of judicial discretion.

Relevancy aside, was the offered evidence admissible as either (1) an admission, or (2) under principles of equitable estoppel? The majority opinion is not specifically predicated upon either premise, but both have been urged by plaintiff on appeal as the grounds for admissibility, and both principles are pertinent, in my opinion, to a consideration of whether an abuse of judicial discretion has occurred.

The offer of proof did not advise the trial court of the context of the adjuster’s statement, so that either of these grounds for admissibility could be evaluated. The pretrial *71record does show that defendant’s insurer was engaged in an “advance payment” plan whereby it had paid to plaintiff some $15,643.76 as wage loss, medical expenses of $5,131.82, and car repairs of $253.28. These payments were made voluntarily and continued until plaintiff engaged counsel and commenced this action. We are informed on appeal that the wages paid included the period of plaintiff’s surgical and post-surgical recovery, as well as several months while he attended vocational school.

The offer of proof does not advise us precisely when the adjuster made the alleged statement to plaintiff that “they would take care of him,” but it is evident that this statement occurred prior to the time plaintiff obtained counsel, and well before the defense exercised the right of an independent medical examination.

In this context, to ascertain whether the offered evidence would amount to either an admission against interest or give rise to some sort of equitable estoppel requires that we consider the legal aspects of advance payments as well as the equities of this case.

It has been said that advance payments offer the dual purpose of engendering good will of an injured claimant so that an out-of-court settlement may be reached, and also in assisting an injured claimant through the period of economic hardship which many accidents produce. See Legal Aspects of Partial Payments Made on Liability Claims in Advance of Final Settlement, ABA Section of Insurance, Negligence and Compensation Law 499 et seq. (1967).

Since one of the main purposes of advance payment programs is to arrive at settlements of potential litigation, it is evident that those programs should be considered a part of the settlement negotiations. They are not intended as admissions of liability for the payments made, but to encourage settlements without recourse to litigation—a policy long favored in the law. Yet, what are the consequences of allowing evidence of this sort to be brought before the jury?

It is manifest in the case at bench that if plaintiff’s offer *72of proof were allowed, the jury would be informed not only that defendant was insured but that the insurer supplied plaintiff with wages during a portion of the contested period, while he attended school. This evidence would have the effect of an admission against interest, putting defendant at a serious disadvantage in contending against its liability for medical and wage expenses which the independent medical examination revealed were unwarranted. It would be an understatement to say that advance payment programs would be substantially discouraged were such ruling to become the established law.

Up to the present, the policy of our law has discouraged the intentional interjection of the fact of insurance into a suit of this kind. Kadiak Fisheries Co. v. Murphy Diesel Co., 70 Wn.2d 153, 422 P.2d 496 (1967). The trial court’s ruling was in accord with this policy.

Also, for the policy reasons mentioned above, the law does not discourage settlements or offers of compromise by admitting evidence of such negotiations. Eagle Ins. Co. v. Albright, 3 Wn. App. 256, 474 P.2d 920 (1970); Ershig Sheet Metal, Inc. v. General Ins. Co. of America, 62 Wn.2d 402, 383 P.2d 291 (1963). The trial court’s ruling was in accord with this policy.

Nor, for policy reasons, has the law generally permitted evidence of an offer or promise made on behalf of a defendant to pay the hospital and medical costs of the injured party as an admission of the defendant’s liability for those costs. Annot., 20 A.L.R.2d 291 (1951). The trial court’s ruling was in accord with this policy.

Yet these policy considerations and the predictable consequences of the ruling in the majority opinion are not, in my view, sufficiently considered. Because of the prejudicial impact which this type of evidence will have on the juries, courts should be reluctant to deviate from established rules of admissibility discussed above, when the relevancy peg is remote, as it is here. And above all, I am most reluctant to deprive the trial court of its well established discretion to *73rule that this type of evidence would generate heat instead of diffusing light on the ultimate fact in issue.

Finally, a brief consideration of the equities should be made. The majority opinion speaks of the prejudicial nature. of defense counsel’s final argument that defendant should not be responsible for wages during the time plaintiff attended school. This statement was directly supported by the testimony of Dr. Millett. It seems obvious that any evidence which by its nature is detrimental to one party to a lawsuit is prejudicial. It is axiomatic that argument of. prejudicial matters is proper where there is evidence to support it. Not only was the argument proper, but plaintiff made no objection to it. Consequently, reversible error may not be based upon the argument. Bombardi v. Pochel's Appliance & TV Co., 9 Wn. App. 797, 515 P.2d 540 (1973).

Nor do I believe the argument was unfair in the context in which the adjuster’s statement was made to plaintiff. Had the company refused to continue the wage payment in the face of Dr. Florence’s recommendation, we might criticize the company for violating the spirit of its advance payment program. However, I fail to see why the insurer should be penalized with an adverse evidentiary ruling solely because, without the benefit of an independent medical examination, it accepted Dr. Florence’s recommendation.

I would affirm.

Petition for rehearing denied September 9, 1975.

Appealed to Supreme Court September 10,1975.

WPI 30.01 provides, in part:

“If your verdict is for the plaintiff, then you must determine the amount of money which will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.”