Cain v. Lee

PRESENT: All the Justices
JULIA CAIN, ET AL.
OPINION BY
v. Record No. 141105 JUSTICE CLEO E. POWELL
JUNE 4, 2015
JOE LEE
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Charles S. Sharp, Judge
Julia Cain and her daughters Raven and Reannah Cain
(collectively, the “Cains”) appeal the trial court’s decision to
give a jury instruction that they contend was an incorrect
statement of the law. The Cains also appeal the decision of the
trial court excluding certain impeachment evidence as well as
evidence of the defendant’s post-accident conduct.
I. BACKGROUND
On May 31, 2008, the Cains were driving on Route 1. As
their vehicle slowed due to traffic, a vehicle driven by Joe Lee
(“Lee”) rear-ended them. The impact caused the Cains to collide
with the vehicle in front of them.
A state trooper responding to the accident determined that
Lee was possibly intoxicated, due to Lee’s appearance and the
presence of a strong odor of alcohol. The state trooper
administered a field sobriety test to Lee, which Lee failed.
Lee subsequently consented to a preliminary breath test (“PBT”),
which registered a blood alcohol content of .24. Lee was then
arrested.
When he was brought before a magistrate, Lee refused to
submit to a breath test. As a result, Lee was charged with
unreasonably refusing to submit to a breath test, in violation
of Code § 18.2-268.3, and driving under the influence (“DUI”),
in violation of Code § 18.2-266. Lee subsequently pled guilty
to the DUI. As part of a plea bargain, the Commonwealth agreed
to nolle prosequi the unreasonable refusal charge.
At the time of the accident, none of the Cains complained
of any injuries. However, Raven later complained of neck pain
and general soreness. She sought medical treatment, but was not
diagnosed with a particular medical condition. Julia also
sought medical treatment related to the accident for unspecified
injuries. Reannah saw a doctor for a regular wellness visit
after the accident, but was not treated for any specific medical
condition related to the accident. The Cains were fully
recovered by August, 2008.
On June 22, 2010, Raven filed a personal injury complaint
against Lee. Reannah and Julia also filed claims against Lee on
June 30, 2010 and February 23, 2011, respectively. Each
complaint sought $25,000 in compensatory damages and $350,000 in
punitive damages. As Lee did not have insurance, each complaint
was also served on Farmers Insurance Exchange (“Farmers”),
Julia’s vehicle insurance carrier. All three actions were
subsequently consolidated into a single action.
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On December 10, 2010, Lee was arrested for a second DUI.
He was convicted on March 11, 2011 and sentenced to twelve
months in jail with nine months suspended. As a condition of
his probation, Lee was required to participate in the Virginia
Alcohol Safety Action Program (“VASAP”) and to abstain from the
use of alcohol. When reporting to the VASAP, Lee was required
to submit to a breath test. After Lee failed four breath tests,
Lee was expelled from the VASAP and required to serve the
remainder of his suspended sentence.
On April 15, 2013, the trial court heard Farmer’s motion in
limine seeking to prevent the Cains from presenting evidence of
Lee’s second DUI conviction and his expulsion from the VASAP.
Lee also moved to exclude the results of the field test
administered at the accident scene. The trial court granted
Farmers’ motion in limine and took Lee’s motion under
advisement.
At trial, Lee conceded he was liable and the case
proceeded for a determination of compensatory and punitive
damages. As part of their case, the Cains called Lee as an
adverse witness. Lee was asked if he was intoxicated at the
time the collision occurred, to which he responded, “I wouldn’t
say intoxicated. I had been drinking.” When he was asked again
if he was drunk at the time of the collision, Lee stated
“[t]hat’s what my paperwork says, .08 to -- yes.” The Cains
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subsequently sought to impeach Lee’s testimony with the results
of the PBT. Lee objected on the basis that the results of the
PBT were irrelevant because the Cains claim was based on Lee’s
unreasonable refusal, not the results of the PBT. The trial
court denied the Cains request, ruling that, assuming the
testimony was relevant, the Cains could not impeach Lee based on
testimony they elicited, especially when they knew what Lee’s
testimony would be.
At the conclusion of the evidence, Lee proffered a jury
instruction addressing the disfavored nature of punitive damages
(hereafter referred to as “Instruction 10”). The Cains
objected, arguing that the instruction was not a correct
statement of the law. The trial court approved a slightly
modified version of Instruction 10 which stated: “Punitive
damages are generally not favored and should be awarded only in
cases involving egregious conduct.” Notably, during his closing
argument, Lee repeatedly emphasized that his conduct was not
egregious in nature and therefore punitive damages should not be
awarded.
The jury subsequently awarded $5,000 in compensatory
damages and $500 in punitive damages to Raven Cain, $5,000 in
compensatory damages and $500 in punitive damages to Reannah
Cain, and $2,000 in compensatory damages and $500 in punitive
damages to Julia Cain. The Cains appeal.
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II. ANALYSIS
On appeal, the Cains argue that the trial court erred in
giving Instruction 10. They also take issue with the trial
court’s decision to exclude the results of the PBT and the
evidence of Lee’s post-accident DUI and expulsion from the VASAP
program.
A. INSTRUCTION 10
The Cains argue that the trial court erred in giving
Instruction 10. According to the Cains, the instruction does
not properly state the law, improperly incorporates the
appellate standard of review, and is prejudicial. We agree.
When we review the content of jury
instructions, our “‘sole
responsibility . . . is to see that the law
has been clearly stated and that the
instructions cover all issues which the
evidence fairly raises.’” Molina v.
Commonwealth, 272 Va. 666, 671, 636 S.E.2d
470, 473 (2006) (quoting Swisher v. Swisher,
223 Va. 499, 503, 290 S.E.2d 856, 858
(1982)). Whether the content of the
instruction is an accurate statement of the
relevant legal principles is a question of
law that, like all questions of law, we
review de novo. Alcoy v. Valley Nursing
Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301,
303 (2006).
Hancock-Underwood v. Knight, 277 Va. 127, 131, 670 S.E.2d 720,
722 (2009).
Under Code § 8.01-44.5, when a defendant unreasonably
refuses to submit to a breath test, the finder of fact may award
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punitive damages if the evidence demonstrates: (1) the defendant
was intoxicated at the time of accident; (2) the defendant knew
or should have known “his ability to operate a motor vehicle was
impaired;” and (3) “the defendant’s intoxication was a proximate
cause of the injury to the plaintiff or death of the plaintiff’s
decedent.” It is undisputed that all of these elements were met
in the present case. Instruction 10, however, further requires
the Cains prove that Lee’s conduct was “egregious,” an
additional element not included in the statute. Accordingly, it
was error for the trial court to give Instruction 10.
Furthermore, this case provides yet another illustration of
the error addressed in our repeated admonishment about “the
danger of the indiscriminate use of language from appellate
opinions in a jury instruction.” Blondel v. Hays, 241 Va. 467,
474, 403 S.E.2d 340, 344 (1991) (collecting cases). We have
long recognized that the language used in our opinions may
include “argumentative language” about legal matters that is
inappropriate for consideration by the jury. Abernathy v.
Emporia Manufacturing Co., 122 Va. 406, 413, 95 S.E. 418, 420
(1918). Here, Instruction 10 was taken directly from our
holding in Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va.
421, 425, 611 S.E.2d 385, 387 (2005), and clearly includes an
example of “argumentative language” in the form of this Court’s
commentary about the favorability of punitive damages. Such
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language does not assist the jury in any way; it does not
explain the law applicable to the case or aid the jury in
arriving at the proper verdict. Rather, given that Code § 8.01-
44.5 expressly allows for punitive damages upon the showing
specified by the General Assembly, referring to them as
“generally not favored” serves only to confuse or mislead the
jury.
Additionally, it is worth noting that the punitive damages
discussed in Xspedius Mgmt. Co. were common law punitive
damages; the punitive damages at issue in the present case are
statutory punitive damages. Unlike common law punitive damages,
statutory punitive damages have been explicitly approved by the
General Assembly. As such, we cannot say, as a matter of law,
that such punitive damages are “generally not favored.” Indeed,
logic would dictate otherwise.
Finding that the trial court erred in giving Instruction
10, we must next determine whether that error was harmless. The
mere fact that the jury awarded punitive damages is not, in the
present case, sufficient evidence that the error was harmless.
“If an issue is erroneously submitted to a jury, we presume that
the jury decided the case upon that issue.” Clohessy v. Weiler,
250 Va. 249, 254, 462 S.E.2d 94, 97 (1995). Here, Instruction
10 included unnecessary commentary on the propriety of punitive
damages and improperly required the jury to consider an element
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or legal standard that the Cains were not required to prove. It
is not illogical that a jury would decrease the amount of
punitive damages because the trial court stated that such
damages were “generally not favored.” Similarly, it is likely
that the jury factored the egregiousness of Lee’s conduct into
its determination of punitive damages. As we cannot
definitively state whether Instruction 10 had an effect on the
jury’s award, we cannot say that the error was harmless.
Accordingly, we will reverse the decision of the trial
court and remand the matter for further proceedings. However,
we recognize that the issue of post-accident conduct raised by
the Cains will likely arise again upon remand. * Therefore, we
will address that issue here. See Harman v. Honeywell Int’l,
Inc., 288 Va. 84, 95-96, 758 S.E.2d 515, 522 (2014) (considering
evidentiary issues that would probably arise on remand where the
judgment was reversed on other grounds).
B. POST-ACCIDENT CONDUCT
The Cains argue that the trial court erred in refusing to
allow them to present evidence of Lee’s subsequent DUI
*
Unlike the trial court’s decision to exclude the post-
accident conduct evidence, we cannot say that the issue that led
to the exclusion of the impeachment evidence will likely arise
again on remand. Notably, the impeachment evidence was offered
due to Lee’s peculiar response to the question of whether he was
“drunk at the time of [the] collision.” As we cannot say that
Lee will give a similarly idiosyncratic answer on remand, we
need not address this issue here.
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conviction and dismissal from VASAP. The Cains contend that
such evidence demonstrates that Lee is indifferent to the pain
and suffering he has caused, thereby making it competent,
relevant, and material evidence for determining punitive
damages. We disagree.
This Court has long recognized that a “trial court may
exclude evidence when, in the court’s sound discretion, its
prejudicial effect substantially exceeds its probative value.”
Boone v. Commonwealth, 285 Va. 597, 602, 740 S.E.2d 11, 13
(2013). Here, the evidence the Cains sought to introduce has no
direct connection to the incident that precipitated the present
case. Indeed, Lee’s second DUI and dismissal from the VASAP
occurred during the pendency of this case. We further note
that, even if offered for the limited purpose of determining the
amount of punitive damages, such evidence is “likely to inflame
the passion or instill a prejudice in the minds of the jury.”
Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores
Corp., 162 Va. 767, 781, 174 S.E. 848, 854 (1934). Thus, the
post-accident evidence is ostensibly highly prejudicial.
To determine whether the post-accident evidence has any
probative value, we first look to the language of the statute on
which the Cains base their case, Code § 8.01-44.5. Where a
plaintiff seeks punitive damages based on a defendant’s
unreasonable refusal, Code § 8.01-44.5 provides that:
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a defendant's conduct shall be deemed
sufficiently willful or wanton as to show a
conscious disregard for the rights of others
when the evidence proves that (a) when the
incident causing the injury or death
occurred the defendant was intoxicated,
which may be established by evidence
concerning the conduct or condition of the
defendant; (b) at the time the defendant
began drinking alcohol, or during the time
he was drinking alcohol, he knew or should
have known that his ability to operate a
motor vehicle was impaired; and (c) the
defendant's intoxication was a proximate
cause of the injury to the plaintiff or
death of the plaintiff's decedent.
The specific temporal references in the statute are “when
the incident . . . occurred,” “at the time the defendant began
drinking alcohol, or during the time he was drinking alcohol,”
and “was a proximate cause.” Thus, for the purpose of
determining whether to award punitive damages, Code § 8.01-44.5,
limits a finder of fact to considering evidence of the
defendant’s knowledge and physical condition leading up to and
directly related to the defendant’s act. Nothing in the statute
allows a finder of fact to consider post-accident evidence that
is not directly related to the act in question. As no unrelated
post-accident evidence can be considered in determining whether
to award punitive damages, such evidence, by definition, has no
probative value. Accordingly, the trial court did not abuse its
discretion by excluding the post-accident evidence because, in
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an action under Code § 8.01-44.5, such evidence is entirely
prejudicial with no probative value.
III. CONCLUSION
For the foregoing reasons, the trial court’s evidentiary
rulings excluding the proffered evidence of Lee’s post-accident
conduct was not error, but we will reverse the judgment of the
trial court because of its error with regard to Instruction 10.
Accordingly, we will remand the matter to the trial court for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
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