Peake v. Labatad ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-DEC-2021
01:16 PM
Dkt. 85 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DONNA M. PEAKE, Plaintiff-Appellee, v.
SAMANTHA K.K. LABATAD, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
KO#OLAUPOKO DIVISION
(CIVIL NO. 1RC17-1-6007)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
In a case arising from a personal injury claim,
Defendant-Appellant Samantha K.K. Labatad (Labatad) appeals from
the Judgment, entered on December 1, 2017, and the Findings of
Fact, Conclusions of Law, and Order (FOF/COL/Order), entered on
February 26, 2018, in the District Court of the First Circuit,
Ko#olaupoko Division (District Court).1/
On September 29, 2017, Plaintiff-Appellee Donna M.
Peake (Peake) filed a Complaint against Labatad, alleging that
Labatad punched her in the face, causing severe bruising,
scratches, and other injuries.2/ On November 9, 2017, Labatad
filed a Counterclaim, alleging "Assault; Battery; Defamation; and
1/
The Honorable Maura M. Okamoto presided.
2/
The State of Hawai#i also charged Labatad via complaint with
Assault in the Third Degree, in violation of Hawaii Revised Statutes ( HRS)
§ 707-712(1)(a) (2014). A jury found Labatad guilty of the charged offense,
and a judgment of conviction and sentence was entered against her. On
August 18, 2021, this court vacated the judgment based on instructional error
and remanded the case for a new trial. See State v. Labatad, No. CAAP-17-
0000879, 2021 WL 3701789, at *1, *9 (Haw. App. Aug. 18, 2021) (SDO).
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Comparative Fault/Negligence" and seeking a judgment against
Peake in the amount of $100.
On November 17, 2017, at the conclusion of a bench
trial, the District Court orally ruled in favor of Peake on the
Complaint. The court also stated: "I am finding that there was
no comparative negligence here and the counterclaim is invalid.
I am not awarding anything to the defendant on the basis of the
counterclaim."3/ On December 1, 2017, the District Court entered
the Judgment in favor of Peake and against Labatad in the sum of
$2,660, comprising a "[p]rincipal [a]mount" of $2,581, "[s]ervice
[f]ees" of $43, and "[m]ileage for [s]ervice" of $36. On
February 26, 2018, the District Court entered the FOF/COL/Order,
which, among other things, ordered that "[j]udgment be entered in
favor of . . . Peake against . . . Labatad as to the counterclaim
with no damages to be awarded."
On appeal, Labatad contends that the District Court
erred in: (1) finding that Peake was not contributorily
negligent; (2) admitting into evidence Peake's Exhibit 1B ("Work
Status Report") over Labatad's hearsay objection, and awarding
$600.00 in special damages for lost wages; (3) awarding $981 in
special damages for medical expenses, where "Peake would be
reimbursed by insurance and [thus] . . . receive a double
recovery[,]" and where such expenses "were not established . . .
to have been reasonable and necessary"; and (4) awarding $1,000
in damages for pain and suffering "because the amount is
unreasonable and out of proportion to the damages sustained by
Peake."4/
3/
Prior to the start of trial, the District Court informed Labatad
that "[D]efamation . . . is not before the District Court, . . . that's not
within our jurisdiction." Labatad's counsel responded, "Yes, yes. Your
honor, that's fine."
4/
Labatad's points of error have been consolidated and reordered for
clarity.
Labatad asserts in the background section of the opening brief that the
District Court "relied on the verdict in the criminal case to establish
Labatad's liability." However, Labatad does not identify or argue this
assertion as a point of error, and it is therefore waived. See Hawai #i Rules
of Appellate Procedure Rule 28(b)(4), (7). Moreover, Labatad does not dispute
her liability, except to the extent she challenges the District Court's
continued . . .
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After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Labatad's contentions as follows:
(1) Labatad contends that the "trial court made no
ruling on whether the plaintiff's negligence was a defense to the
defendant's liability for an intentional tort." Labatad argues
that, "[b]ecause Hawaii's comparative negligence statute HRS
§ 663-315/ only applies to torts of negligence, this Court should
fashion a common law rule outside the statute that contributory
negligence is a defense to intentional torts under pure
comparative negligence principles."6/ (Footnote added.)
We need not decide in this case whether contributory
negligence is a defense to intentional torts under pure
comparative negligence principles. At the conclusion of trial,
the District Court "f[ound] that there was no comparative
. . . continued
purported lack of findings or conclusions on the issue of contributory
negligence. As explained below, unchallenged findings by the District Court
support its determination that there was no comparative (or contributory)
negligence by Peake and that Labatad's counterclaim failed.
5/
HRS § 663-31 (2016) states, in relevant part:
(a) Contributory negligence shall not bar recovery in
any action by any person or the person's legal
representative to recover damages for negligence resulting
in death or in injury to person or property, if such
negligence was not greater than the negligence of the person
or in the case of more than one person, the aggregate
negligence of such persons against whom recovery is sought,
but any damages allowed shall be diminished in proportion to
the amount of negligence attributable to the person for
whose injury, damage or death recovery is made.
6/
The Hawai#i Supreme Court has relied on the following explanation
of "pure comparative negligence":
In this form, a plaintiff's contributory negligence does not
operate to bar his recovery altogether, but does serve to reduce
his damages in proportion to his fault. The system in this form
is designed to compensate an injured party for all of the harm
attributable to the wrongdoing of the defendant; when multiple
defendants are involved, all are liable to the plaintiff for their
respective shares of the loss, even though some may have been less
negligent than he. . . .
Hao v. Owens-Illinois, Inc., 69 Haw. 231, 235 n.4, 738 P. 2d 416, 418 n.4
(1987) (quoting W.P. Keaton, Prosser and Keaton on The Law of Torts § 67, at
472 (5th ed. 1984)).
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negligence here . . . ." The court thus necessarily found there
was no contributory negligence. See supra note 6.
Labatad asserts that in the subsequent FOF/COL/Order,
the Circuit Court "entered no Finding of Fact or Conclusion of
Law on the issue of contributory negligence." However, Labatad
first raised the related issue of "Comparative Fault/Negligence"
in the Counterclaim. See District Court Rules of Civil Procedure
(DCRCP) Rule 8(c). Thus, it appears that at trial, the District
Court addressed the issue of contributory/comparative negligence
by reference to the Counterclaim. Consistent with the court's
ruling at trial that "there was no comparative negligence here
and the counterclaim is invalid[,]" the subsequent FOF/COL/Order
includes the following FOFs and COL:
FINDINGS OF FACT
. . . .
17. In support of her Counterclaim[,] [Labatad] testified
that she was acting in self-defense when she struck
[Peake] in the jaw.
18. [Labatad] testified that [Peake] had touched the back
of her head and that was what caused her to turn and
punch [Peake] in the jaw.
19. Morris testified on behalf of [Labatad].
20. Morris credibly testified that he did not see [Peake]
touch [Labatad].
. . . .
CONCLUSIONS OF LAW
. . . .
8. [Labatad]'s counterclaim fails due to lack of any
credible evidence to support her claim.
Labatad does not challenge FOFs 17 through 20. The
findings are therefore binding on appeal and support the District
Court's mixed finding of fact and conclusion of law that there
was no credible evidence to support Labatad's Counterclaim, which
included her comparative negligence claim. See State v. Rapozo,
123 Hawai#i 329, 334 n.4, 235 P.3d 325, 330 n.4 (2010); Bremer v.
Weeks, 104 Hawai#i 43, 63, 85 P.3d 150, 170 (2004); see also
Tamashiro v. Control Specialist, Inc., 97 Hawai#i 86, 92, 34 P.3d
16, 22 (2001) ("the credibility of witnesses and the weight to be
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given their testimony are within the province of the trier of
fact and, generally, will not be disturbed on appeal." (citing
State v. Jenkins, 93 Hawai#i 87, 101, 997 P.2d 13, 27 (2000))).
Accordingly, we conclude that the District Court did not err in
finding that Peake was not comparatively (or contributorily)
negligent.
(2) Labatad contends that the District Court (a)
improperly admitted Peake's Exhibit 1B into evidence over
Labatad's hearsay objection, and (b) improperly awarded Peake
$600.00 in special damages for lost wages, where such damages
were not established by a preponderance of the evidence.
At trial, Peake offered into evidence Exhibit 1B, a
"Work Status Report," dated November 2, 2016, purportedly
authored by Peake's treating physician, Jocelyn M. Sonson, M.D.
(Sonson), stating that "[Peake] is placed off work from 11/2/2016
through 11/4/2016[.]" The District Court admitted the Work
Status Report into evidence over Labatad's hearsay objection.7/
Labatad argues that "[t]he statement in the Work Status
Report was a statement offered to prove the truth of the matter
asserted by an out of court declarant[,]" and no hearsay
exception applied. Indeed, the Work Status Report was offered to
prove that Peake was placed "off work" for the identified time
period, and cited by the District Court in FOF 11 for that
purpose.8/ Sonson did not testify at trial, and the statement at
issue was hearsay. See Baker, 124 Hawai#i at 467, 248 P.3d at
233. No hearsay exception was offered or ruled upon, and none is
apparent based on Peake's testimony at trial. The District Court
thus erred in admitting Exhibit 1B into evidence.
The error, however, was harmless. See DCRCP Rule 61;
Bank of Hawaii v. Shinn, 120 Hawai#i 1, 20, 200 P.3d 370, 389
(2008) (construing HRCP Rule 61). The District Court found in
7/
"'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted." Baker v. Bielski, 124 Hawai #i 455, 467, 248
P.3d 221, 233 (App. 2011) (quoting Hawaii Rules of Evidence ( HRE) Rule 801).
"Hearsay is not admissible, unless it falls under a hearsay exception." Id.(citing HRE Rules 802, 802.1, 803, and 804).
8/
FOF 11 states: "[Peake] was placed 'off work' by the treating
physician from November 2, 2016 - November 4, 2016. [Peake's] Exhibit 1B."
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FOF 12 that "[Peake] credibly testified that she worked doing
translation work and was paid at the rate of $200 per day for
this work, and that due to the injury she was not able to work
for three days and was not paid for those days." Labatad does
not challenge FOF 12, which is based on independent evidence
unrelated to Exhibit 1B, is binding on appeal, and supports the
District Court's COL 6 awarding Peake $600 for lost wages.9/ See
Rapozo, 123 Hawai#i at 334 n.4, 235 P.3d at 330 n.4. In these
circumstances, Labatad has failed to demonstrate how the District
Court's admission of Exhibit 1B affected her substantial rights.
See DCRCP Rule 61.
Accordingly, we conclude that the District Court did
not err in awarding Peake $600.00 in special damages for lost
wages.
(3) Labatad contends that the District Court improperly
awarded Peake $981.00 in special damages for medical expenses,
where Peake "would be reimbursed by her insurer after making the
payment[,]" and where such expenses were not established to have
been "reasonable and necessary."
At trial, Peake introduced into evidence a medical bill
from Kaiser Permanente, and testified that the bill had not yet
been paid. At the close of Peake's case, Labatad moved for
judgment as a matter of law against Peake on the ground that she
"ha[d] not presented sufficient evidence to support her claim for
damages." The District Court denied the motion. In Labatad's
closing argument, she contended:
[B]ased on the evidence and credible testimony presented
here, [Peake] has not established that she sustained any
economic damages . . . .
Number one, the claimed medical bill is an insurance
payment, has not been presented to the insurance company for
payment. There is no evidence of copayments made by
plaintiff and she has testified herself that she has not
9/
We also note that Peake's credible testimony alone was sufficient
to reasonably establish her claim for lost wage damages. See, e.g., Miller v.
Allman, 813 S.E.2d 91, 109 (W. Va. 2018) ("A number of courts around the
country that have addressed the issue have held, and we so hold, that 'a
plaintiff's testimony alone is sufficient to prove lost wages as long as the
testimony . . . reasonably establishes the claim.'" (brackets omitted)
(quoting Guidry v. Bernard, 155 So. 3d 162, 169 (La. Ct. App. 2014), and
citing numerous cases)).
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made payments on this matter.
On appeal, Labatad contends that "because [Peake] would
be reimbursed by her insurer after making the payment[,] . . .
[t]his reimbursement was a double recovery and windfall for
Peake."
Labatad's argument fails for two reasons. First,
Labatad cites no evidence in the record that Peake "would be
reimbursed by her insurer after making the payment." Peake
testified to the contrary. Second, Labatad's argument ignores
the collateral source rule.
The "collateral source rule," in general, provides
that benefits or payments received on behalf of a plaintiff,
from an independent source, will not diminish recovery from
the wrongdoer. Ellsworth v. Schelbrock, 235 Wis. 2d 678,
611 N.W.2d 764, 767 (2000). "Under the collateral source
rule, a 'tortfeasor is not entitled to have its liability
reduced by benefits received by the plaintiff from a source
wholly independent of and collateral to the tortfeasor[.]'"
Sam Teague, Ltd. v. Hawai#i Civil Rights Comm'n, 89 Hawai#i
269, 281, 971 P.2d 1104, 1116 (1999) (quoting Sato v.
Tawata, 79 Hawai#i 14, 18, 897 P.2d 941, 945 (1995)).
Bynum v. Magno, 106 Hawai#i 81, 86, 101 P.3d 1149, 1154 (2004)
(footnote omitted). Thus, Labatad was not entitled to have her
liability for Peake's medical expenses eliminated or reduced due
to payments or benefits Peake could potentially receive from her
insurer.
Labatad also contends that "the [District] Court
improperly awarded medical expenses . . . to Peake without
finding that they were reasonable and necessary." (Letter casing
altered.) "In an action to recover medical expenses caused by a
defendant's negligence, a plaintiff must show that the medical
services obtained were necessary and the charges were reasonable
as required for the injuries sustained." Bynum, 106 Hawai#i at
86–87, 101 P.3d at 1154–55 (citing Reinhardt v. Cty. of Maui, 23
Haw. 524, 527 (1916)). Under HRE Rule 303(c)(16), "[a] bill for
goods or services that has been paid is presumed to be authentic
and to embody fair and reasonable charges for the itemized goods
or services."
Here, there is insufficient evidence as to the
reasonableness of Peake's medical bill. Peake testified at trial
that she had not yet paid her Kaiser Permanente bill.
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Accordingly, the bill was not presumed to embody fair and
reasonable charges pursuant to HRE Rule 303(c)(16), and Peake was
required to prove that the charges for those services were
reasonable. See Bynum, 106 Hawai#i at 86–87, 101 P.3d at1154–55; cf. Gilding v. State, No. CAAP-XX-XXXXXXX, 2012 WL
2505495, at *3 (Haw. App. June 29, 2012) (mem.) (stating that
after evidence of paid bills was admitted, the burden shifted to
the defendant to prove that "the bills were not authentic, fair,
or reasonable"). Inasmuch as Peake did not offer any evidence at
trial concerning the reasonableness of the charges she incurred
for medical services,10/ she did not meet her burden of proof, and
the District Court erred in awarding Peake $981.00 in special
damages for medical expenses.
(4) Labatad contends that the District Court
improperly awarded $1000.00 in general damages to Peake for pain
and suffering.
"General damages 'encompass all the damages which
naturally and necessarily result from a legal wrong done,' [Ellis
v. Crockett, 51 Haw. 45, 50, 451 P.2d 814, 819 (1969)], and
include such items as 'pain and suffering, inconvenience, and
loss of enjoyment which cannot be measured definitively in
monetary terms.'" Lima v. Deutsche Bank Nat'l Tr. Co., 149
Hawai#i 457, 466, 494 P.3d 1190, 1199 (2021) (brackets omitted)
(quoting Bynum, 106 Hawai#i at 85, 101 P.3d at 1153).
A finding of an amount of damages is so much within the
exclusive province of the jury that it will not be disturbed
on appellate review unless palpably not supported by the
evidence, or so excessive and outrageous when considered
with the circumstances of the case as to demonstrate that
the jury in assessing damages acted against the rules of law
or suffered their passions or prejudices to mislead them.
Brown v. Clark Equip. Co., 62 Haw. 530, 536, 618 P.2d 267, 271–72
(1980) (brackets omitted) (quoting Vasconcellos v. Juarez, 37
Haw. 364, 366 (1946)). "A similar test is used in a jury-waived
case and the inquiry on review is limited to whether, 'upon the
10/
Peake adduced sufficient evidence to establish that the medical
services she obtained were necessary. For example, based on Peake's
testimony, the District Court entered FOFs 9 and 10 (quoted infra), which
Labatad does not challenge.
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evidence adduced, reasonable men could have come to the same
conclusion as the jury, or the trial court in a jury-waived
case.'" Kang v. Harrington, 59 Haw. 652, 663, 587 P.2d 285, 292
(1978) (quoting Lima v. Tomasa, 42 Haw. 478, 483 (1958)). "The
Hawai#i Supreme Court has determined that pain and suffering is
measured by what the trier of fact 'considers will reasonably
compensate the plaintiff for the pain and suffering or anguish in
light of the intensity and exten[t] thereof as disclosed by the
evidence.'" Polm v. Dep't of Hum. Servs., No. CAAP-XX-XXXXXXX
2014 WL 7390879, at *21 (Haw. App. Dec. 30, 2014) (mem.) (quoting
Barretto v. Akau, 51 Haw. 383, 394, 463 P.2d 917, 923 (1969)).
Labatad argues that the $1000.00 award for pain and
suffering "was clearly erroneous" because the only evidence Peake
presented was her own testimony. Although Labatad is correct
that Peake did not present any admissible evidence of her pain
and suffering apart from her own testimony, we have previously
recognized that "there is no authority that 'sufficient evidence
of pain and suffering' could not be based on the plaintiff's
testimony." Martin v. C. Brewer & Co., No. 29570 2013 WL 639320,
at *2 (Haw. App. Feb. 21, 2013) (SDO).
The District Court's relevant findings of fact include
the following:
7. [Peake] credibly testified that during this
confrontation she was punched in the jaw area by
[Labatad.]
. . . .
9. [Peake] went to the Emergency Room because of her
injury caused by [Labatad].
10. [Peake] credibly testified that she felt nausea and
pain and that an x-ray was taken. The x-ray showed
that the jawbone was not broken and that no treatment
was necessary other than to take medication for the
pain as necessary.
. . . .
14. In support of her claim for pain and suffering,
[Peake] testified that her jaw was swollen and she was
in pain for five days.
Labatad does not challenge FOFs 7, 9, and 10, which are
binding on appeal and support the award for pain and suffering.
See Rapozo, 123 Hawai#i at 334 n.4, 235 P.3d at 330 n.4.
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Although Labatad challenges FOF 14, Peake's testimony supports
the finding, and we are not left with a definite and firm
conviction that a mistake has been made. See Chun v. Bd. of Trs.
of the Emps.' Ret. Sys. of Hawai#i, 106 Hawai#i 416, 430, 106 P.3d
339, 353 (2005). Based on the pain and suffering that Peake
experienced as a result of her injury, as established by the
evidence adduced at trial, the Circuit Court's award of $1,000
for pain and suffering was reasonable and not erroneous. See
Kang, 59 Haw. at 663, 587 P.2d at 292; Polm, 2014 WL 7390879, at
*21.
For the reasons discussed above, we vacate in part the
December 1, 2017 Judgment and the February 26, 2018 Findings of
Fact, Conclusions of Law, and Order, entered in the District
Court of the First Circuit, Ko#olaupoko Division, only as to the
award of $981.00 in special damages for medical expenses. We
affirm in all other respects, and remand the case to the District
court for further proceedings consistent with this Summary
Disposition Order.
DATED: Honolulu, Hawai#i, December 27, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Grant K. Kidani Chief Judge
(Kidani Law Center)
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Donna M. Peake, Associate Judge
Pro Se Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge
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