Metropolitan News-Enterprise


Monday, February 8, 2010


Page 1


C.A. Denies New Trial Against BMW for Rollover


By SHERRI M. OKAMOTO, Staff Writer


A man who was seriously injured during a rollover accident in his BMW Z3 roadster was not entitled to a new trial against the automaker based on alleged attorney misconduct and the jury’s apparent confusion regarding the special verdict form, this district’s Court of Appeal has ruled.

In its Thursday decision, Div. Three held that Los Angeles Superior Court Judge Soussan G. Bruguera had prejudicially erred by relying on inadmissible statements in juror declarations in reaching her decision to grant Richard Bell’s motion for a new trial.

Bell asserted that he had been driving along a curve on a freeway transition road in November 2002 when the tail end of his 1996 BMW Z3 suddenly slid out and he lost control of the car.

Although he said he was wearing his seatbelt, Bell claimed his head had come into contact with the ground through the soft top of the convertible when the car twice rolled over on the dirt embankment.

He filed a complaint against Bayerische Motoren Werke Aktiengesellschaft and BMW of North America LLC, alleging causes of action for negligence, products liability, and breach of warranty.

During the cross-examination of a witness to the accident at trial, defense counsel asked the witness if he had approached Bell to find out whether Bell was insured.

Bruguera denied Bell’s motion for a mistrial based on the insurance reference and instructed the jurors to disregard the question.

After the presentation of evidence, the jury received a special verdict form. The first question posed by the form was whether Bell’s Z3 had “potential risks that were known or knowable through the use of scientific knowledge available at the time of manufacture and/or distribution.”

The jury asked whether “potential risks” referred to the specific rollover accident in the case or to all potential risks, but Bruguera responded that their question could not be answered “as phrased.”

While deliberating, the jury asked several additional questions but did not rephrase its initial inquiry. It eventually answered the first question on the special verdict form in the affirmative, but found the car had not failed to perform safely and that defendants had not been negligent.

Bell later filed a motion for a new trial, with supporting declarations by three jurors, and Bruguera granted the motion.

She found that defense counsel had committed misconduct by mentioning insurance during cross-examination since it raised an inference that the witness asked for insurance because Bell was negligent in operating his vehicle, or that Bell was compensated for his injuries by his insurance company.

Despite her instruction to the jury not to consider insurance at the beginning of trial and her direction at the time of the question to disregard it, Bruguera concluded that the prejudice was incurable.

She also found that her failure to respond to the jury’s question regarding the meaning of “potential risks” was prejudicial error, noting jurors’ statements that a majority of the jurors came to the conclusion that the term had to be interpreted broadly after receiving Bruguera’s response.

Writing for the appellate court, Justice Walter Croskey explained that Bruguera’s order could not be affirmed for the reasons she had cited.

He acknowledged that statements by counsel suggesting that an individual was insured could cause a jury to find liability more readily or to inflate its award of damages in some circumstances, but that such a result was “exceedingly unlikely” in Bell’s case.

Croskey posited that jurors ordinarily would assume that a driver with the financial means to pay for insurance, like Bell, would be insured, even if there were no mention of insurance at trial.

As Bruguera specifically instructed the jury not to consider insurance on two occasions and the jury presumably obeyed her directives, Croskey said “the trial court could not reasonably conclude, despite the repeated instructions and admonition, that the brief mention of insurance in these circumstances was prejudicial,” and so the order granting a new trial could not be affirmed based on attorney misconduct.

The justice further concluded that Bruguera’s failure to clarify the special verdict question could not support a new trial order since evidence of the jurors’ internal thought processes is inadmissible to impeach a verdict.

He emphasized the trial court had, “to a large degree, based its determination that the jury was misled by the special verdict question and that its failure to provide proper guidance in response to the jury’s question was prejudicial on statements in two juror declarations.”

Since the portions cited by Bruguera described the jurors’ purported understanding of the words “potential risks,” Croskey said they reflected the jurors’ subjective reasoning process and were therefore inadmissible.

“[E]xcluding the inadmissible portions of the juror declarations, the record compels the conclusion that the special verdict form was not misleading and did not confuse the jury,” he continued.

Croskey reasoned that the special verdict form “clearly conveyed to the jury that ‘the potential risks’ in questions Nos. 2 and 3 referred to the same ‘potential risks’ initially referenced in question No. 1,” and that the jury’s responses to the later questions indicated that the jury found “that ordinary consumers recognized all of ‘the potential risks,’ including the risk of head-to-ground contact in a rollover accident, regardless of the precise scope of the term ‘potential risks.’ ”

Joined by Presiding Justice Joan D. Klein and Justice Patti S. Kitching, Croskey rejected the other basis asserted by Bell for affirming the new trial order.

Lee G. Lipscomb, Robert J. Wolfe, Daniel G. Whalen and Gregory P. Waters of Engstrom, Lipscomb & Lack represented Bell, while Roy M. Brisbois, Raul L. Martinez and Steven E. Meyer of Lewis Brisbois Bisgaard & Smith represented Bayerische Motoren Werke Aktiengesellschaft and BMW.

The case is Bell v. Bayerische Motoren Werke Aktiengesellschaft, 10 S.O.S. 698.


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