Bison Builders v. ThyssenKrupp Elevator
Filed 9/5/12 Bison Builders v. ThyssenKrupp Elevator CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
BISON
BUILDERS, INC.,
Cross-Complainant and Appellant,
v.
THYSSENKRUPP
ELEVATOR CORPORATION,
Cross-Defendant and Respondent.
A131622
(Marin
County
Super. Ct.
No. CV 084313)
BISON BUILDERS,
INC.,
Defendant and Appellant,
v.
DAVID
TRAVIS,
Plaintiff and Respondent.
A131623
(Marin
County
Super. Ct.
No. CV 084313)
Respondent
David Travis worked for ThyssenKrupp Elevator Corporation (Thyssen) installing
elevators. Thyssen was a subcontractor
for appellant general contractor Bison Builders, Inc. (Bison) in the
construction of a hotel. Travis was
injured when he struck his head on a portion of scaffolding erected at the
entrance to the worksite.
Travis
sued Bison for negligence and went to trial on the theory that as general
contractor, Bison had negligently exercised its retained control over the
safety of his worksite. Bison tendered
defense of Travis’s suit to Thyssen, citing the terms of its subcontract. Bison filed a cross-complaint against Thyssen
for indemnification and defense costs when Thyssen declined the tender.
The
jury found Bison negligent and awarded Travis
court denied Bison relief on its cross-complaint, concluding that Bison’s
active negligence barred any indemnity and that Thyssen had not been obligated
to provide Bison a defense. The court
entered judgments in favor of Travis and Thyssen.
Bison
appeals from both judgments. It raises a
number of arguments on appeal, including claims of error in the jury
instructions and special verdict form.
It also contends the trial court erred in failing to exclude evidence of
the amount of Travis’s medical bills and in denying Bison’s request for a
reduction in the jury’s award for Travis’s future medical expenses. Bison challenges the judgment in favor of
Thyssen, arguing that the trial court misconstrued the indemnity provision of
the parties’ subcontract.
We
affirm the judgments.
I. Factual and Procedural Background
On
appeal, we recite the facts in the light most favorable to the prevailing
parties, Travis and Thyssen. (
verdict]; Combs v. Skyriver
Communications, Inc. (2008) 159 Cal.App.4th 1242, 1263 [judgment under
Code Civ. Proc., § 631.8].) We
recognize that the parties offered sharply differing versions of the events
that led to Travis’s injury, but in keeping with our standard of review, we
give Travis and Thyssen the benefit of every reasonable inference and resolve
all conflicts in support of the judgments in their favor.
v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.)
Bison
was retained as the general contractor for construction of the Extended Stay
America Hotel in San Rafael. The hotel project required installation of
two elevators.
In
November 2005, Thyssen submitted to Bison a proposal to install the elevators. Bison responded to the proposal with a
15-page form subcontract agreement entitled “Bison Builders, Inc. Subcontract
Agreement,” dated March 30, 2006. Section 15.1 of Bison’s form agreement stated
that Thyssen would indemnify Bison for personal injury claims caused by any act
or omission of Thyssen, “regardless of whether such personal injury or damage
is caused by [Bison].” Section 15.1
further provided that the subcontract’s “indemnity provisions apply regardless
of any active and/or passive negligent act or omission of [Bison],” but that
Thyssen was not obligated to indemnify Bison for claims arising from Bison’s
“sole negligence or willful misconduct.”
The subcontract agreement also provided that Thyssen would “defend
. . . all Claims as defined in Section 15.1.”
In
July 2006, the parties executed their final
written agreement for the elevator installation. The final agreement consisted of the 15-page
form subcontract dated March 30, 2006, and a two-page
amendment entitled “Amendment No. 1.”
Amendment No. 1 altered the indemnity provision contained in
section 15 of the subcontract. It
provided as follows: “SECTION 15.
Amend so indemnity and hold harmless is limited solely to losses to the extent
caused by [Thyssen’s] acts, actions, omissions or neglects and in no way to
include the acts, actions, omissions or neglects of [Bison], Owner, Architect,
other subcontractors, or others.” The
amendment further provided that “in the event of conflict with other articles,
terms, conditions, or contract documents, this Amendment No. 1 shall be final.”
Bison’s
project manager, Ron Lacy, testified at trial that Bison had control over the
common areas of the worksite and was therefore responsible for providing
Thyssen’s crew with “safe, OSHA-compliant access from outside to inside.” Lacy said this meant the subcontract required
that Bison provide “adequate ingress and egress” to the elevator hoistway.
Bison
superintendent Tim Waters was personally responsible for ensuring that Thyssen
had adequate access. He agreed that
“safe access” as defined by the California Occupational Safety and Health Act
(Cal-OSHA), required a height clearance of six feet, eight inches. Bison was also responsible for providing
lighting in the common areas of the worksite and for ensuring those areas were
clear of debris and other hazards.
Before
Thyssen’s installers arrived at the worksite, another Bison subcontractor,
Kenyon Plastering, enclosed the perimeter of the hotel with scaffolding for use
in applying stucco to the hotel’s exterior.
The scaffolding enclosed the entire hotel, including the area
immediately outside the front entrance to the hotel, an area referred to as the
“portico.”
On
the left side of the portico area, the scaffolding included three “bays” (space
between scaffolding frames). Two of the
three scaffold bays, including the middle one, had cross-bracing at a height of
between five and one-half feet and six feet.
cross-bracing and had vertical clearance in excess of six feet eight
inches. If this bay had been free of
other obstructions, workers could have accessed the worksite without passing under
low cross-bracing.
Thyssen’s
installers, including Travis, arrived at the hotel worksite on January 31,
2007. With Travis were three other
Thyssen employees, including mechanic in charge, Rene Bourque. After arriving at the worksite, Waters led
the Thyssen crew into the building to look at the elevator hoistway. To enter the building, Waters led the Thyssen
crew through the scaffolding into the hotel’s front entrance. They passed under the cross-bracing, which
had a vertical clearance of less than six feet.
Travis and his coworkers had to duck to pass under the cross-bracing.
When
Thyssen’s crew arrived, the third scaffold bay—the only one not obstructed with
cross-bracing—was blocked by boxes or crates and cluttered with trash. The Thyssen crew considered using other
entrances, but only the front entrance was large enough to permit them to bring
in their larger pieces of equipment.
When
the Thyssen crew first arrived, the area around the front entrance was covered
with gravel, which made it difficult for the crew to roll carts loaded with
heavy equipment into the building.
Bourque therefore asked Bison to install a ramp through the
portico. In response, Bison installed a
plywood ramp under the middle scaffold bay, i.e., the bay blocked by
cross-bracing. After conferring with
Kenyon, Bison assistant superintendent Guy Jones chose the path for the ramp
through the scaffold bay.
In
the morning when the Thyssen crew arrived at the worksite, Jones would lead
them over the plywood ramp, through the scaffolding, to the hotel’s front
entrance. When they reached the front
entrance, Jones would unlock the door so Thyssen’s crew and other workers could
enter the hotel.
Clearance
Travis
and the other Thyssen employees normally arrived at the hotel around
6:00 a.m. Because it was winter, it
was “pitch black” in the portico area when they started work. Bourque found the lighting so bad that he
bought two miners’ lights, which he and a coworker attached to their hard
hats. Travis carried a flashlight with
him which he used to illuminate his passage through the portico.
Despite
the poor illumination, Bison failed to install lighting in the portico area.
difficult to see the scaffold cross-bracing in the early morning hours. Even after the sun came up, the contrast
between the bright sun outside and the unlit portico area sometimes made it
difficult to see everything clearly in the portico area. Waters testified that the shadows in the
portico had the potential to obscure overhead hazards.
Travis
and his coworkers made numerous trips in and out of the hotel, often carrying
heavy loads of tools, equipment, and supplies.
In the course of walking in and out of the hotel, Travis repeatedly
bumped his head on the cross-bracing.
Travis first bumped his head the morning of his first day on the
job. Over the course of his first week
on the job, Travis hit his head
on the cross-bracing about six times.
Travis tried to duck to avoid the cross-bracing but was not always
successful because he was often carrying heavy loads and looking down to avoid
tripping hazards. Other Thyssen workers
also struck their heads on the cross-bracing.
Thyssen
crew members complained to Bourque about the height of the cross-bracing. Bourque then requested that Bison adjust the
cross-bracing.
title="">[4] Bourque raised the issue with Bison on at
least one occasion and believes he raised it more than once. Nevertheless, it took several days for Bison
to adjust the cross-bracing.
While
still on the job, Travis felt minor neck pain after he hit his head on the
scaffold cross-bracing. In the weeks
following his injury, he experienced increasing numbness in his limbs. He was later diagnosed with spinal cord compression
resulting from herniated discs and underwent surgery. Because of his injuries, there is no
possibility that Travis will be able to return to his prior occupation. He is expected to experience continuing
functional decline and will eventually need to use a wheelchair.
Travis
filed a workers’ compensation claim. The
Workers’ Compensation Appeals Board made an award in favor of Travis and
against Ace Primary (Ace), the workers’ compensation carrier. Travis was awarded temporary disability and
“[a]ll further medical treatment reasonably required to cure or relieve from
the effects of the injury herein.”
Travis
filed a complaint seeking recovery against Bison and certain Doe defendants on
various negligence theories.
name="_ftnref5" title="">[5] Bison then cross-complained against Thyssen,
seeking indemnity under the provisions of the Bison-Thyssen subcontract.
Travis
went to trial against Bison. At the end
of the trial, the court instructed the jury on the retained control doctrine,
under which a general contractor may be held liable for injuries to a
subcontractor’s employee, but only where the general contractor retained
control over some aspect of the subcontractor’s work and negligently exercised
its retained control in a manner that affirmatively
contributed to the employee’s injuries. (See Hooker v. Department of Transportation
(2002) 27 Cal.4th 198, 202, 209–210 (Hooker).)
The
jury found that Bison was negligent and that its negligence was a substantial
factor in causing Travis’s harm. The
jury allocated 75 percent of the fault to Bison; 20 percent to
Thyssen; 5 percent to Travis; and 0 percent to Kenyon.
The
jury awarded Travis damages in the sum of $11,732,637.46. After reducing the award for Travis’s
comparative fault and for workers’ compensation payments, the trial court
entered judgment for Travis and against Bison in the amounts of $5,267,486 in
economic damages and $4,500,000 in noneconomic damages, for a total award of
$9,767,486, plus prejudgment interest.
The award of economic damages included more than $2.5 million for future
life care, including medical expenses and household services.
After
the jury trial of Travis’s action and before the trial of the cross-action,
Bison and Thyssen stipulated that the jury would make no determination on the
issues raised by the cross-complaint and that those issues would instead be
tried by the court. The trial court
concluded Bison’s active negligence in causing Travis’s injuries barred any
recovery under the indemnity agreement. It also rejected Bison’s claim that Thyssen
was obligated to provide Bison with a defense in Travis’s action and/or
reimburse it for attorney fees it incurred in defending that suit.
Bison
filed timely notices of appeal from both the judgment for Travis in the main
action and the judgment for Thyssen in the cross-action. We consolidated the appeals for purposes of
briefing and decision.
II. Discussion
Bison’s
appeals challenge both the jury verdict in favor of Travis and the trial
court’s judgment in favor of Thyssen on Bison’s cross-complaint for indemnification. We turn first to Bison’s multiple claims of
error regarding the jury’s verdict.
A.
Challenge to the Jury Instruction on Negligent Exercise of Retained Control.
Bison
contends the trial court’s instruction on a hirer’s negligent exercise of
retained control incorrectly suggested that a failure to act, without more,
amounts to an affirmative contribution to the plaintiff’s injury. In Bison’s view, this instruction, coupled
with the standard negligence and premises liability instructions (CACI
Nos. 400, 401, and 1011) misled the jury and misstated the law on the
issue of retained control. Bison
contends this error was compounded by what it views as a defective special
verdict form. It argues the verdict form
should have included an interrogatory on the controverted issue of affirmative
contribution.
Travis
responds that Bison either invited the instructional error of which it now
complains or failed to preserve the issue for appeal. Similarly, he argues Bison forfeited any
objection to the special verdict form by making no objection to the final
verdict form and by failing to propose an alternative. Before we may address Bison’s argument on the
merits, we must determine whether it is properly before us. We begin with the question of the jury
instructions. To place this issue in the
proper context, we will summarize the trial court proceedings regarding those
instructions.
1. Factual Background
On
Wednesday, December 15, 2010, the trial court held the first of two jury
instruction conferences. The conference
itself was not transcribed, but the court reported its results on the record
and then offered counsel an opportunity to state any objections. Thyssen’s counsel objected that CACI
No. 1009B, “as phrased, makes no reference to the fact that in order for
plaintiff to recover, there has to be a finding of affirmative contribution to
the injury by the defendants.” Citing
argued the instruction should be modified “to include a requirement that in
order for there to be a finding against defendants, that there has to be a
finding that they affirmatively contributed to the injury suffered by
plaintiff.” Counsel for Bison joined in
Thyssen’s request and proposed “Special Instruction Number 4.”
Travis’s
counsel opposed modification of the instruction. He argued “the affirmative contribution
requirement simply means there must be causation between the hirer’s conduct
and the plaintiff’s injury[.]” He
objected to the use of the term “affirmative contribution” in the jury
instruction, because it “might be construed by the jury to require active
conduct rather than a failure to act; and therefore, it would lead to a
misunderstanding of the Hooker case,
or a misapplication of the Hooker
case.” The trial judge opined that CACI
No. 1009B adequately addressed the issue and ruled that she would not
modify it at all.
On
Friday, December 17, court held a second conference on jury
instructions. The trial judge stated,
“We settled jury instructions on Wednesday, and I sent you the final form early
Wednesday afternoon.” She went on to
explain that she had then received “a blizzard of e-mails” Thursday afternoon
proffering new instructions. In
addition, Bison’s counsel had submitted new instructions that very morning only
10 minutes before the court convened.
The trial court asked Travis’s counsel whether he was abandoning his
theory of premises liability. Counsel
responded affirmatively and explained he was seeking to withdraw the premises
liability instructions, while retaining CACI No. 1009B. The latter instruction was necessary, he
argued, because it dealt with negligent exercise of retained control, the only
theory on which he was proceeding.
When
the court asked Bison’s counsel for her views, the latter responded that she
had “proposed two alternatives that
added the affirmatively contributing language.
One was to 1009B, and the second was to Special Instruction 4,
because premises liability is applicable, and Hooker is, and affirmative contribution is necessary.” (Italics added.) Counsel for Bison explained that since the
premises liability allegations were being withdrawn, “this is a case governed
by Hooker. So Special Instruction Number 4 as
modified and sent this morning is applicable.
That’s our position.”
After
the matter was submitted, the trial court first ruled it would permit Travis to
withdraw the premises liability instructions.
The trial judge then stated, “I will retain 1009B, but I do think it’s
reasonable to add the following element, which is that Bison Builders, Inc.
affirmatively contributed to David Travis’ damage. The
affirmative contribution need not be act of conduct [sic]
act. And this is all straight from
(Italics added.) Bison’s counsel
did not object to the court’s statement that the affirmative contribution may
take the form of an omission. After a
discussion of the special verdict form and certain evidentiary issues, Travis’s
counsel asked the court to clarify whether it would give an unrelated
instruction. Bison’s counsel raised no
other questions regarding the jury instructions. The court told counsel it would “clean
. . . up” the instructions and provide copies to counsel when they were
done. According to Bison, the trial
court “provided the instruction to counsel shortly before instructing the jury
. . . .” The record
reflects no further objections to, or discussion of, the jury instructions.
After
a recess, the jury was brought in and instructed. The trial court’s instruction on retained
control read as follows: “David Travis
claims that he was damaged by an unsafe condition while employed by ThyssenKrupp
Elevator Corporation and working on Bison Builders, Incorporated’s property. To establish this claim, David Travis must
prove all of the following: [¶] 1, that Bison Builders, Incorporated
controlled the property; 2, that Bison Builders, Incorporated retained control
over safety conditions at the work site; 3, that Bison Builders, Incorporated
negligently exercised its retained control over safety conditions; 4, that
David Travis was damaged; 5, that Bison Builders, Incorporated affirmatively
contributed to David Travis’ damage. The
affirmative contribution need not be active conduct but may be in the form of
an omission to act; and, 6, that Bison Builders, Incorporated’s negligent
exercise of its retained control over safety conditions was a substantial
factor in causing David Travis’ damages.”
2. The Invited Error Doctrine and Jury Instructions
“The
doctrine of invited error bars an appellant from attacking a verdict that
resulted from a jury instruction given at the appellant’s request. [Citations.]”
(Stevens v. Owens-Corning
Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) Indeed, the invited error doctrine “applies
‘with particular force in the area of jury
instructions. . . .’
[Citation.]” (
Parties raising claims of instructional error on appeal bear the burden
of providing this court with a record sufficient to support those claims. (Bullock
v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678 (
that the claimed error was not
invited by” the appellant. (
1075, 1091.) Accordingly, reviewing
courts will not consider claims regarding errors in jury instructions where the
record does not show who requested the instructions. (Faulk
v. Soberanes (1961) 56 Cal.2d 466, 471 [“appellant . . . has
the burden to present a record sufficiently complete to establish that the
claimed errors were not invited by her, and in the absence of such a showing
she may not properly complain”].)
Under
the invited error doctrine, where the record does not disclose which party
requested an allegedly erroneous instruction, “the reviewing court
instruction and therefore cannot complain of error. [Citation.]”
supra, 159 Cal.App.4th at p. 678, italics added.) We will also presume the appellant withdrew
the instruction at issue “if the record does not show whether an instruction
‘was withdrawn, abandoned, or lost in the shuffle[.]’ ” (Ibid.,
quoting Huber, Hunt & Nichols, Inc.
v. Moore (1977) 67 Cal.App.3d 278, 312.)
It is therefore also the appellant’s burden to ensure both that the
trial court has ruled on a requested instruction and that the record on appeal
discloses the trial court’s ruling. (
supra, 67 Cal.App.3d at p. 312.)
Where the record is silent on these questions, we assume appellant
invited the instructional error. (See
Cal.App.4th 1640, 1671–1672; Morehouse v.
Taubman Co. (1970) 5 Cal.App.3d 548, 559 [absent “any indication
before us which party requested the challenged instruction in the first
instance . . . , it is presumed to have been given at
appellant’s request”].)
3.
Sufficient to Demonstrate It Did Not Invite the Instructional Error.
Applying
the foregoing standards, we first reject Bison’s claim of instructional error
to the extent it rests on any supposed confusion resulting from the giving of
CACI Nos. 400, 401, and 1011. Bison
tells us Travis offered the general negligence instructions (CACI Nos. 400
and 401), but it provides no citations to the record to support this
contention. Nor does it point to
anything in the record showing which party proposed CACI No. 1011. Since we do not know which party requested
these instructions, we must presume Bison did.
(Bullock, supra, 159
Cal.App.4th at p. 678.) Because
Bison has failed to provide a record sufficient to establish that it did not
invite error with respect to these three instructions, it is barred from
complaining about them on appeal. (See
at p. 1091.)
We
turn to Bison’s objections to CACI No. 1009B. Contrary to Bison’s contention, there is
nothing in the record indicating that Travis drafted the language to which
Bison now objects. Indeed, the source of
the instruction ultimately given by the trial court is not apparent from the
record before us. The text of the
instruction appears in Bison’s appendix, but without any information as to who
proposed it. As noted above, Bison’s
counsel told the court she had submitted two
alternative instructions containing the “affirmative contribution” language,
one of which was a version of CACI No. 1009B. The other was a version of Special
Instruction Number 4. Only the
second of these proposed instructions appears in the record; the language of
Bison’s proposed alternative to CACI No. 1009B is not before us.
Although
we do not know precisely what language Bison proposed, certain facts are clear
from the record. First, the “affirmative
contribution” explanatory language was added at Thyssen’s and Bison’s
request. Second, the transcript of the
second jury instruction conference indicates Bison’s counsel drafted
affirmative contribution language for the instruction. Third, at that conference Bison contended
“this is a case governed by Hooker.” Fourth, in announcing its decision granting
Bison’s request to modify the instruction to include affirmative contribution
language, the trial court stated its intention to instruct the jury that the
required affirmative contribution could take the form of an omission to act,
and Bison did not object. Finally, the
trial court explained that the proposed modification “is all straight from
no disagreement.
title="">[10]
On
this record, we cannot determine the source of the portion of the instruction
to which Bison objects. To meet its
burden of establishing prejudicial error, it is not enough for Bison to “show[]
the source of only a portion of the instruction given[.]” (Lynch
v. Birdwell, supra, 44 Cal.2d at p. 846.) In addition, since Bison did not include the
text of its proposed modification of CACI No. 1009B in its appendix, it
may be that Bison proposed an instruction substantially similar to the one the
court gave. If that were the case, Bison
would also be precluded from objecting to the instruction on appeal. (See Henderson
v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670 [since “plaintiffs
requested a substantially similar instruction . . . , they may
not now complain of the corresponding portion of the instruction given by the
court”].)
4. Bison’s Counterarguments Are Unpersuasive.
Bison’s
attempts to avoid the invited error doctrine are unavailing. First, it argues the doctrine does not apply
because “mere acquiescence in or failure to object to an instruction is not
invited error.” The case upon which
Bison relies for this proposition, Huffman
v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, is inapposite. In that case, it was clear the party
challenging the instruction did not request it.
(Id. at p. 706.) That cannot be said here.
Second,
Bison relies on Code of Civil Procedure section 647, but its reliance is
misplaced. That section provides that
certain matters “are deemed excepted to,” including “giving an instruction, refusing
to give an instruction, or modifying an instruction requested[.]” But it applies only to instructions “an
appellant . . . has not requested or agreed to . . . ,
[and] a presumption of invited error may result from failure to provide the
reviewing court with an adequate record.”
(Pugh v. See’s Candies, Inc.
(1988) 203 Cal.App.3d 743, 759.) In this
case, Bison has failed to provide an adequate record and thus we must presume
it invited the instructional error of which it now complains.
Third,
Bison asserts it could not have proposed a clarifying instruction because the
case on which it would have based such an instruction—SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 (
decided. Bison contends
mere failure to act constitutes affirmative contribution under
held liable for the injuries suffered by an employee of an
Airways to maintain a luggage conveyor belt.
(Id. at pp. 594,
603.) The California Supreme Court held
that “[b]y hiring an independent contractor, [US Airways] implicitly
delegate[d] to the contractor any tort law duty it owe[d] to the contractor’s employees to ensure the safety of the specific
workplace that is the subject of the contract.”
(Id. at p. 594.) Thus, the holding in SeaBright turned on whether US Airways could delegate to the
contractor its duty under the California Occupational Safety and Health Act to
ensure the safety of the conveyor belt.
(Id. at pp. 595,
600–603.) Such delegation is not at
issue in this case, however, because Bison was held liable on the theory that
it had negligently exercised its retained control of Travis’s worksite. “If a hirer entrusts work to an independent
contractor, but retains control over
safety conditions at a jobsite and then negligently exercises that control in a
manner that affirmatively contributes to an employee’s injuries, the hirer is
liable for those injuries, based on its own negligent exercise of that retained
control. [Citations.] Because the hirer retains control, it cannot logically be said to have
v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446.)
Finally,
we reject the suggestion that the trial court was obligated to give Bison’s
Special Instruction No. 4. (See
fn. 6, ante.) That instruction was at best an incomplete
statement of the law, because it did not tell the jury that to impose liability
on Bison, it must find Bison had negligently exercised its retained control
over safety conditions and that Bison’s negligent exercise of that retained
control was a substantial factor in causing Travis’s injuries. (See Hooker,
supra, 27 Cal.4th at p. 213 [“if a hirer does retain control over
safety conditions at a worksite and negligently exercises that control in a
manner that affirmatively contributes to an employee’s injuries, it is only
fair to impose liability on the hirer”]; CACI No. 1009B [plaintiff must
prove hirer’s negligent exercise of retained control was substantial factor in
causing injury].) Accordingly, the trial
court was entitled to refuse it. (
Guar. Co. (1987) 192 Cal.App.3d 684, 698.) This is particularly true here, because the
standardized instruction adequately instructed the jury on the applicable
law. (See id. at pp. 698–699.)
B. Bison Forfeited Any Objection to the Alleged Defects in the Special
Verdict Form.
Bison
contends the special verdict form was defective because the trial court did not
ask the jury to determine “the critical, controverted issue of whether Bison’s
retained control over jobsite safety affirmatively contributed to Travis’
injuries.” Travis responds that Bison
failed to preserve this claim for appeal because Bison neither objected to the
proposed special verdict form nor sought clarification of the jury’s verdict
after it was returned. We agree with
Travis.
1. Factual Background
After
the trial court informed counsel it would modify CACI No. 1009B to include
language requiring the jury to find that Bison had affirmatively contributed to
Travis’s injuries, the court asked counsel whether they had anything further to
say about the verdict forms. Thyssen’s
counsel responded that “the affirmative contribution language in Special
Instruction 1009B . . . should also be a part of the special verdict
form and specifically added as a new question to the jury . . . so
the jury would be asked whether or not Bison affirmatively contributed to the
harm allegedly suffered by plaintiff.”
Travis’s
counsel objected to the proposal, and the court again asked counsel whether
they had anything to say on the verdict form.
Bison’s counsel responded, “I think it’s fine as it is.” Thyssen’s counsel again requested that a
question on affirmative contribution be included in the special verdict, and
the matter was then submitted. The trial
court refused Thyssen’s request, reasoning that “affirmative contribution is
. . . really a secondary issue.
The issue is whether certain defendants were negligent. The affirmative contribution is just a piece
of that. So I think it’s addressed
already in the verdict form, and I’m not going to make the jury answer a
question about it separately.” Counsel
for Bison made no objection to the court’s ruling.
The
jury later reached a verdict, which was read in open court. The court polled the jury at the request of Thyssen’s
counsel, after which the trial judge announced she intended to discharge the
jury. The jury was then discharged, but
the record reflects no challenge to the verdict from Bison.
2.
Verdict Form Before Discharge of the Jury Precludes It From Raising the Issue
on Appeal.
“A
party who fails to object to a special verdict form ordinarily waives any
objection to the form.” (
517, 530, citing Lynch v. Birdwell,
supra, 44 Cal.2d at p. 851.)
Where, as here, the issue is whether a question was omitted from a
special verdict form, the objection must be raised before the jury is
discharged. (American Modern Home Ins. Co. v. Fahmian (2011) 194 Cal.App.4th
162, 170, fn. 1.) To preserve the
objection for appeal, a party must either object to the allegedly defective
special verdict form in the trial court or propose its own verdict form
containing the question or questions the party contends were improperly
omitted. (See Mardirossian & Associates, Inc. v. Ersoff (2007) 153
Cal.App.4th 257, 276–277 (Mardirossian).) In this case, since Bison contends the issue
of affirmative contribution was critical to determining its liability or the
absence thereof, it was incumbent upon Bison to ensure that a finding on that
issue was included in the verdict. (
Bison
does not contend it ever proposed its own special verdict form including a
finding on affirmative contribution. It
also points to nothing in the record demonstrating that it ever objected to the
verdict form in the trial court on the grounds it now raises on appeal. In fact, it appropriately concedes in its
reply brief that its counsel “agreed to the verdict form as given.” Bison asserts instead that the doctrines of
invited error and forfeiture do not apply to this situation.
Whether
Bison invited error with respect to the special verdict form is a question we
need not address, because it is clear Bison forfeited any challenge by failing
to object to the verdict before the jury was discharged. Bison was certainly given the opportunity to
object to any perceived deficiencies in the form before the case was submitted
to the jury, but it made no objection.
“Not only did [Bison] not do so, [it] failed to seek any correction or
clarification of the verdict at any time, even though the jury was polled
regarding the verdict[.]” (
at p. 530.) Bison has therefore
forfeited its objection to the failure of the verdict form to inquire
specifically about the issue of affirmative contribution. (Ibid.;
see also Henrioulle v. Marin Ventures,
Inc. (1978) 20 Cal.3d 512, 521 [“Failure to object to a verdict before the
discharge of the jury and to request clarification or further deliberation
precludes a party from later questioning the validity of the verdict if the
alleged defect was apparent at the time the verdict was rendered and could have
been corrected”]; Electronic Equipment
Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858
[“where the record is devoid of any showing that appellant objected to the
special verdict questions, any inherent error therein is waived”].)
Moreover,
even if Bison had properly preserved this argument for appeal, we would be disinclined
to find any defect in the verdict form.
A special verdict “must present the conclusions of fact as established
by the evidence, and not the evidence to prove them; and those conclusions must
be so presented as that nothing shall remain to the Court but to draw from them
conclusions of law.” (Code Civ. Proc.,
§ 624.) “A special verdict is
‘fatally defective’ if it does not allow the jury to resolve every controverted
issue.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.) A verdict form is not defective merely
because it does not ask the jury to make separate findings on each element of a
given cause of action. (See
625, 630 [where jury was instructed on elements of fraud, court did “not
believe a cumbersome interrogatory embracing each of the several elements [of a
fraud claim] was necessarily required”], disapproved on another point in
(1978) 78 Cal.App.3d 477, 485–486, 496.)
As
the trial court correctly noted, the issue before the jury was whether Bison
was negligent, and affirmative contribution “is just a piece of that.” The advisory committee’s use note to CACI
No. 1009B explains that “the ‘affirmative contribution’ requirement simply
means that there must be causation between the hirer’s conduct and the
plaintiff’s injury. Because ‘affirmative
contribution’ might be construed by a jury to require active conduct rather
than a failure to act, the committee believes that its standard ‘substantial
factor’ element adequately expresses the ‘affirmative contribution’
requirement.” (Use Note to CACI
No. 1009B, supra,
p. 638.) The modified version of
CACI No. 1009B given by the trial court was more favorable to Bison than
the standard instruction, because unlike the standard instruction, it included
a specific direction that the jury must find that Bison had “affirmatively
contributed to David Travis’ damage.”
The jury’s finding that Bison was negligent thus necessarily means it
found that Bison had affirmatively contributed to Travis’s injury.
Inc. v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1558 [where
jury was properly instructed that element of claim for breach of duty of good
faith was harm to plaintiff, jury’s finding of breach of duty necessarily
included finding that plaintiff had been damaged]; Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006)
143 Cal.App.4th 333, 364–365 [jury was instructed that party’s performance
under contract was discharged if affirmative defense of impossibility or
impracticability was proved; finding of breach showed jury rejected affirmative
defense].)
C.
in Denying Bison’s Motion in Limine.
Bison
contends the trial court erred in denying its motion in limine to exclude
evidence of any medical bills showing the amounts charged by Travis’s health
care providers. On appeal, Bison asserts
that the trial court’s decision is inconsistent with the California Supreme
Court’s recent opinion in Howell v. Hamilton
Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell). We find nothing in
in permitting the jury to hear evidence of the full amount of the medical
bills, and the trial court’s ruling is entirely consistent with precedent from
the California Courts of Appeal.
Accordingly, we reject Bison’s argument.
1. Factual Background
Citing
Evidence Code sections 350 and 352, Bison’s motion in limine argued Travis
should be prohibited from offering in evidence the amounts his medical
providers charged for their services
and should instead be limited to proving the amounts actually paid to satisfy those charges. Bison contended “the amount of a medical bill
is irrelevant, if the bill was satisfied for a lesser amount pursuant to prior
agreement between the provider and [the] insurance company.” (See Hanif
v. Housing Authority (1988) 200 Cal.App.3d 635, 643 (
more than actual amount expended or incurred for past medical services].) Travis opposed Bison’s motion, pointing out
that cases like Hanif governed the
recoverability of damages, not the admissibility of evidence to establish
recoverable damages. The trial court
denied Bison’s motion, but it expressly reserved “until after a verdict, the
matter whether any medical expense recovery should be reduced per
The
jury awarded Travis $153,804.46 in past medical expenses. Bison moved to reduce that portion of the
verdict to the amount actually paid by Ace, the workers’ compensation
carrier. The trial court granted the
motion, ruling that Travis was entitled to recover only “the amount [actually]
paid by [Ace] and accepted as payment in full by the medical providers[.]” That amount, as found by the jury, was
$73,847. The trial court concluded
Travis was not entitled to recover the full amount of his past medical
expenses, because he had not shown he remained liable for the full amount.
2. Standard of Review
Trial
judges have broad authority over the admission and exclusion of evidence. (Greer
v. Buzgheia (2006) 141 Cal.App.4th 1150, 1156 (Greer) [reviewing trial court’s denial of motion in limine to
exclude evidence of full amount of plaintiff’s billed medical expenses].) Because the motion in limine at issue here
pertains to the admissibility of evidence, the trial court’s ruling is subject
to review under the abuse of discretion standard. (Mardirossian,
supra, 153 Cal.App.4th at p. 269.)
3.
Evidence of the Reasonable Cost of Travis’s Medical Care.
Bison
contends the trial court’s denial of its motion in limine amounted to an abuse
of discretion under Howell, supra, 52
Cal.4th 541. This argument is not
extensively articulated, and we fail to see how Howell supports Bison’s position.
In
whether a tortiously injured person could recover from the tortfeasor the
undiscounted sum billed by the injured person’s medical provider, where the
provider had accepted a discounted sum as full payment pursuant to a
preexisting insurance contract. (52
Cal.4th at p. 548.) The Supreme
Court held no such recovery is allowed, because the injured plaintiff did not
suffer an economic loss in the amount of the undiscounted sum. (Ibid.) The court went on to explain the implications
of its holding on the admissibility of evidence: “Where the provider has, by prior agreement,
accepted less than a billed amount as full payment, evidence of the full billed
amount is not itself relevant on the issue of past medical expenses.” (Id.
at p. 567.) The Supreme Court
noted, however, that it was expressing no opinion as to the relevance or
admissibility of evidence of the full billed amount “on other issues, such as
noneconomic damages or future medical expenses.” (Ibid.) Thus, the court in Howell clearly declined to take a position on the question now
before us.
In
contrast, all of the Courts of Appeal that have addressed the question,
including this appellate district, have concluded it is not error for a trial
court to permit the jury to hear evidence of the full amount of an injured
plaintiff’s medical bills, even when the plaintiff’s damages are limited to the
amount actually paid to the provider.
(See Olsen v. Reid (2008) 164
Cal.App.4th 200, 204; Greer, supra,
141 Cal.App.4th at p. 1157; Nishihama
v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 309 (
and Hanif stand for the principle
that it is error for the plaintiff to recover
medical expenses in excess of the amount paid or incurred. Neither case, however, holds that
medical care may not be admitted. . . . Such evidence gives the jury
a more complete picture of the extent of a plaintiff’s injuries.” (Greer,
at p. 1157; accord, Katiuzhinsky v.
Perry (2007) 152 Cal.App.4th 1288, 1296 [“regardless of whether
defendants were entitled to a Nishihama-type
reduction of the medical damage
award, there was no basis in law to prevent the jurors from receiving evidence
of the amounts billed”].) The trial
court in this case followed precisely the same procedure approved in
It denied Bison’s motion in limine while making “clear that if the jury
rendered an award that was excessive under Hanif/Nishihama,
it would consider a posttrial motion to reduce the recovery.” (Greer,
at p. 1157.) Here, as in
correct.” (Ibid.) Consequently, Bison’s
“claim of error in connection with the motion in limine is without merit.” (Ibid.)
D.
Reduce the Award for Travis’s Future Medical Expenses.
Bison
next challenges the trial court’s denial of its posttrial motion to reduce the
amount of damages for Travis’s future medical costs. We conclude California law requires no such
reduction.
1. Factual Background
As
part of its motion seeking a reduction of Travis’s damages pursuant to
argument proposing a 40 percent reduction in the award for Travis’s future
medical costs. Bison claimed Ace would
be paying those costs, and therefore Travis could not be billed for more than
the workers’ compensation medical charges scale. In Bison’s view, the award for Travis’s
future medical costs should either be reduced to 60 percent of what the
jury awarded or denied in its entirety.
The
trial court denied Bison’s motion. It
observed that Bison had cited no authority for its request to reduce the award
of Travis’s future medical expenses.
Relying on Curtis v. State of
California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668 (
in the jury’s award could only be made for workers’ compensation benefits paid
as of the time of trial and not for future benefits. (Id.
at p. 683.) It explained that if
Travis made a posttrial demand for future workers’ compensation benefits from
Ace, Ace would be entitled to a credit against future benefits based on the
amount Bison had paid to Travis. Because
Travis had recovered damages for his injuries from third parties, Bison was
entitled to a credit against its obligation to pay future benefits for Travis,
but its credit would be reduced by the extent to which its fault caused
Travis’s damages. The trial court
concluded that application of the employer’s or carrier’s credits would ensure
that Travis will not receive a double recovery, and it therefore refused to
reduce the damage award for future medical expenses.
2.
Award Merely Because Travis May Receive Workers’ Compensation Benefits in the
Future.
In
challenging the trial court’s denial of its posttrial motion,
Bison contends that Howell, supra, 52
Cal.4th 541, prohibits the introduction of evidence of Travis’s “projected
future medical specials” because those costs are based on what Travis’s health
care providers would charge rather than on what they would agree to accept as
payment from a private insurer or workers’ compensation carrier. As we explained in the previous section of
this opinion, however, Howell
expressly declined to decide whether such evidence could be admitted “on other
issues, such as . . . future medical expenses.” (Id.
at p. 567.) Thus, to the extent
Bison’s argument is predicated upon Howell,
it fails.
Bison
complains that Travis will receive a windfall, because he has been awarded his
future medical expenses even though Ace has been ordered to pay them. It contends Travis’s award “should be reduced
to the amount that will actually be paid[.]”
Under established California precedent, however, a third party
tortfeasor is not entitled to a reduction in an employee’s judgment in the
amount of future workers’ compensation benefits payable to the employee when
the employer has been found concurrently negligent. (Slayton
v. Wright (1969) 271 Cal.App.2d 219, 229, 232–233.) “The argument has been advanced before that
plaintiff’s recovery should be reduced not only by the amount which he had
already received in compensation benefits but also by any amounts which he
might receive in the future; however, the contention has been rejected
. . . .” (
to a setoff because of an employer’s concurrent negligence, a reduction in the
jury verdict can only be made as to those workers’ compensation benefits paid
as of the time of trial and not reduced for future workers’ compensation
benefits. [Citations.]” (Curtis,
supra, 128 Cal.App.3d at p. 683.)
Moreover,
as Travis points out, there is no evidence of what future medical care Ace will
actually cover. In such cases,
California courts have refused to reduce awards for a plaintiff’s future
medical expenses. In
233 Cal.App.2d 416, the court explained, “Even though a rating had been
made by the Industrial Accident Commission, it does not necessarily follow that
the [injured employee] would receive all that such award would allow as it may
be terminated by death or other events, and to require that the [injured
employee] should have his judgment against the tortfeasor reduced by that
amount would mean that he would not be able to collect on his common law right
. . . .” (
plaintiff’s recovery be reduced solely because future workers’ compensation
payments are available. (
271 Cal.App.2d at p. 233.)
The
trial court’s ruling is thus amply supported by precedent. Although the trial court specifically noted
Bison’s failure to cite any authority in support of its position, Bison’s
briefs on appeal do not remedy this deficiency.
We therefore hold the trial court properly denied Bison’s request for a
reduction in the award of Travis’s future medical expenses.
E. The Record Contains Substantial Evidence of Affirmative Contribution.
Bison
challenges the trial court’s denial of its motion for judgment notwithstanding
the verdict. It contends the trial court
should have granted the motion because there was no evidence Bison
affirmatively contributed to Travis’s injuries.
Specifically, Bison argues there was no evidence it directed Thyssen to
use a particular entrance to the building, and it asserts it was Thyssen’s
responsibility to provide a safe means of entrance and egress for its
employees. Viewing the evidence in the
light most favorable to Travis, as we must, we cannot say there is no
substantial evidence to support the jury’s conclusion. (See Sweatman
v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [“motion
for judgment notwithstanding the verdict may be granted only if it appears from
the evidence, viewed in the light most favorable to the party securing the
verdict, that there is no substantial evidence in support”].) We therefore conclude the trial court did not
err in denying Bison’s motion.
Initially,
we observe that in making this argument, Bison has lost sight of its burden on
appeal. Because Bison attacks the
sufficiency of the evidence to support the jury’s finding, we will consider its
argument “only after a party tenders such an issue together with a fair summary
of the evidence bearing on the challenged finding, particularly including
evidence that arguably supports
it.” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409–410.) Here, Bison’s brief focuses largely, if not
entirely, on the evidence favorable to Bison, and it ignores the contrary
evidence. “What [Bison] attempts here is
merely to reargue the ‘facts’ as [it] would have them, an argumentative
presentation that not only violates the rules noted above, but also disregards
the admonition that [it] is not to ‘merely reassert [its] position at
trial.’ [Citations.]” (In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.) Bison may not simply ignore unfavorable
evidence “as if it did not exist,” and it may not treat the Court of Appeal as
“a second trier of fact[.]” (
35 Cal.App.4th 1014, 1021.) Given
Bison’s failure to discuss the evidence supporting the jury’s findings, we
would be justified in deeming its contentions abandoned. (Arechiga
v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 572.)
Although
Bison has not properly preserved its substantial evidence claim, we have
nevertheless examined it. We conclude
the record contains ample evidence to support a finding that Bison affirmatively
contributed to Travis’s injuries.
Bison’s employees testified it was Bison’s responsibility to provide
Cal-OSHA-compliant access to the worksite.
As general contractor, it was obligated to provide lighting, remove
debris, and ensure the entrance had sufficient height clearance. Although Bison contends there was no evidence
it directed Thyssen’s employees to use any particular entrance to the site,
there was testimony that Bison did designate the entrance to be used.
In
coordination with Kenyon, Bison chose the route for the plywood walkway. The route led through a scaffolding bay with
low cross-bracing to the front entrance of the building. Bison employees put down the plywood planks
and built the ramp. The plywood had been
“cupped and warped” by rain, was difficult to walk on, and rocks and debris
beneath it caused the plywood to bounce back and forth under workers’
feet. The path was littered with debris
and unlighted. Workers hit their heads
on the low cross-bracing. Thyssen
reported the hazard to Bison, but Bison never asked Kenyon to modify the
scaffolding, and Thyssen could not alter the scaffolding on its own.
While
we have not detailed all of the evidence supporting the jury’s verdict, the
facts outlined above are sufficient to sustain a finding that Bison
affirmatively contributed to Travis’s injury.
“ ‘[W]here the hiring party actively contributes to the injury by
supplying defective equipment, it is the hiring party’s own negligence that
renders it liable, not that of the contractor.’ ” (McKown
v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225; accord,
supra, 202 Cal.App.4th at pp. 1447–1448 [act of directing that
unsafe condition occur is active participation; hirer affirmatively contributed
to injury by ordering digging of bollard holes and requiring plaintiff to
conduct work near them].)
Finally,
much of Bison’s argument on this issue appears to be directed at showing that
Thyssen was negligent. The jury did find
that Thyssen was negligent and that its negligence was a substantial factor in
causing Travis’s injuries. As the jury
was instructed, however, “Bison . . . cannot avoid responsibility
just because some other person, condition, or event was also a substantial
factor in causing . . . Travis’s damage.” (CACI No. 431.) “Admittedly, [Bison] was not the only one at
fault, but then the jury’s verdict reflected that.” (McKown
v. Wal-Mart Stores, Inc., supra, 27 Cal.4th at p. 226.) Thus, Thyssen’s negligence is simply beside the
point.
F.
Thyssen on Bison’s Cross-Complaint for Indemnity and Defense Costs.
Bison
also appeals from the trial court’s grant of judgment to Thyssen on Bison’s
cross-complaint for indemnification. The
trial court found that the plain language of the subcontract limited Thyssen’s
duty to indemnify Bison “ ‘solely to losses to the extent caused by
[Thyssen’s] acts, actions, omissions or neglects and in no way to include the
acts, actions, omissions or neglects of [Bison].’ ” Based on the jury’s finding that Bison was
responsible for 75 percent of Travis’s injuries, the trial court ruled the
express terms of the subcontract precluded Thyssen from having to indemnify
Bison. It also held that the allegations
of Travis’s complaint against Bison took the action outside the claims
encompassed by the indemnity provision, and therefore Thyssen owed no duty to
provide a defense to Bison.
On
appeal, Bison argues the trial court erred both in denying its claim for indemnity
from Thyssen and in concluding Thyssen owed Bison no duty to defend it against
Travis’s claims. We find no error and
accordingly affirm the trial court’s judgment.
1. Standard of Review and Principles of Interpretation
We
review the trial court’s interpretation and application of the indemnity
agreement de novo. (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133
Cal.App.4th 1528, 1535 (McCrary).) To the extent the trial court’s
interpretation of the agreement was based on its assessment of the parties’
contract negotiations and the facts leading to Travis’s injury, “ ‘we
accept the trial court’s implied credibility determinations; to the extent the
evidence is not in conflict, we construe the instr
| Description | Respondent David Travis worked for ThyssenKrupp Elevator Corporation (Thyssen) installing elevators. Thyssen was a subcontractor for appellant general contractor Bison Builders, Inc. (Bison) in the construction of a hotel. Travis was injured when he struck his head on a portion of scaffolding erected at the entrance to the worksite. Travis sued Bison for negligence and went to trial on the theory that as general contractor, Bison had negligently exercised its retained control over the safety of his worksite. Bison tendered defense of Travis’s suit to Thyssen, citing the terms of its subcontract. Bison filed a cross-complaint against Thyssen for indemnification and defense costs when Thyssen declined the tender. |
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