WALLACE v. WILEY SANDERS TRUCK LINES INC et al

Filing 88

ORDER denying 82 Motion for New Trial. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/25/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
WILLIE LEE WALLACE,

*

Plaintiff,

*

vs.

*
CASE NO. 4:14-CV-142 (CDL)

WILEY SANDERS TRUCK LINES, INC. *
and NEW HAMPSHIRE INSURANCE
COMPANY,
*
Defendants.

*
O R D E R

Defendants lost at trial, and they now want another one.
They, of course, cannot contemplate the possibility that their
defeat was due to the facts and the law not being on their side
or, heaven forbid, that the trial advocacy of their opponents on
this

particular

occasion

was

more

effective

than

their

Instead, they reflexively blame the jury and the judge.

own.
They

boldly proclaim: “[t]he Court should grant a new trial given the
many serious errors that pervaded this proceeding and prevented
the jury from assessing the relevant facts and understanding the
legal

questions

presented.”

Defs.’

Mot.

for

New

Trial

Or

Alternatively Remittitur and Mem. of Law in Supp. Thereof 1, ECF
No.

82.

Because

no

reversible

error

was

committed

and

the

evidence clearly supports the jury verdict, Defendants’ motion
is denied.

FACTUAL BACKGROUND
Plaintiff Willie Lee Wallace presented evidence at trial
that he was operating his tractor-trailer vehicle in a lawful
manner

near

a

private

Cuthbert, Georgia.

driveway

on

U.S.

Highway

82

East

in

Defendant Wiley Sanders Truck Lines, Inc.’s

employee was following Plaintiff’s vehicle in a tractor trailer
owned

by

Insurance

Wiley
Co.,

Sanders
which

is

that
a

was

party

insured
to

this

by

New

action

Hampshire

pursuant

Georgia’s direct action statute, O.C.G.A. § 40-1-112(c).

to

Well

in advance of the private driveway, Plaintiff turned on his turn
signal

indicating

his

intention

to

make

a

right

hand

turn.

Plaintiff swung wide to make his right hand turn, and as he made
the turn, Wiley Sanders’s driver collided with the passenger
side of Plaintiff’s vehicle.

Plaintiff suffered injuries in the

wreck and was initially taken to the hospital.
treated
shoulder
physical
damages

for

a

torn

surgery,
therapy.
exceeding

rotator
which

was

required

Plaintiff
$100,000

present pain and suffering.
driver

cuff

negligent,

injury

eventually

substantial

introduced

and

and

He was later

testified

post-surgery

evidence
about

had

of

his

special
past

and

The jury found that Wiley Sanders’s
and

the

jury

awarded

compensatory damages in the amount of $650,000.

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Plaintiff

DISCUSSION
Defendants

enumerate

the

following

their motion for a new trial.

errors

in

support

of

First, Defendants contend that

the Court erred in granting Plaintiff’s motion in limine to
exclude statements that Wiley Sanders’s driver made at the scene
of

the

wreck.

Second,

Defendants

assert

that

the

Court’s

verdict form was unfairly confusing and prejudicial to them.
Third, Defendants argue that the Court incorrectly instructed
the jury regarding New Hampshire Insurance Company’s presence as
a party.

And fourth, Defendants contend that the Court erred

because it did not sua sponte interrupt Plaintiff’s counsel’s
closing argument when counsel allegedly made improper, but unobjected

to,

arguments

to

the

jury

regarding

damages.

In

addition to these alleged errors, Defendants seek a new trial
because they contend that the verdict was excessive.

The Court

addresses each of Defendants’ arguments in turn.
I.

Hearsay Statements by Wiley Sanders’s Deceased Driver
Wiley Sanders’s driver died prior to trial and before his

deposition could be taken.

Therefore, Defendants had no sworn

testimony from their driver to present his explanation of what
happened.

In an attempt to overcome this dilemma, Defendants

argued that the statements he made at the scene of the wreck on
the investigating officer’s dash cam should be heard by the
jury.

Plaintiff objected to those statements as inadmissible

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hearsay and filed a motion in limine prior to trial.

Defendants

responded

under

that

the

statements

following hearsay exceptions:

should

(2),

807.

The

Court

admitted

the

present sense impression, excited

utterance, and the residual exception.
&

be

granted

See Fed. R. Evid. 803(1)

Plaintiff’s

statements were excluded at trial.

motion,

and

the

See Pretrial Order ¶ 24, ECF

No. 66.
As the Court explained when it granted Plaintiff’s motion
in limine, the statements are neither present sense impressions
nor

excited

utterances.

A

present

sense

impression

is

a

statement describing or explaining an event or condition made
while or immediately after the
driver’s

statements

to

the

declarant perceived it.

investigating

officer

The

fifteen

to

twenty minutes after the wreck were not made contemporaneously
with

the

event;

impressions.

therefore,

they

are

not

present

sense

An excited utterance is a statement relating to a

startling event or condition made while the declarant was under
the stress of excitement that it caused.

There is no indication

that Defendants’ driver was still under the stress or excitement
of the event when he described to the investigating officer what
happened.

The statements therefore do not qualify as excited

utterances such that they would be admissible notwithstanding
that

they

are

clearly

hearsay

statements.

Finally,

in

the

Court’s best judgment, the statements were properly found not to

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fall within the residual exception.

There is no indication that

these statements have “equivalent circumstantial guarantees of
trustworthiness.”

Fed.

R.

Evid.

807(a)(1).

A

driver’s

explanation of why a wreck is not his fault does not fall within
the type of statement that the residual exception to the hearsay
rule is designed to admit.

Accordingly, the Court again finds

that the statements made by the driver on the dash cam footage
are inadmissible hearsay.

It was not error to exclude them.

The Court sympathizes with Defendants’ predicament.

They

had to defend a claim of negligence without the opportunity to
present an explanation from their allegedly negligent driver.
But had the Court admitted the dash cam footage, Plaintiff would
have been placed in the predicament of having to address the
driver’s explanation without having the opportunity to question
or cross examine him about the statement and the operation of
his vehicle on the day of the wreck.

Either way, the driver’s

premature demise likely would prejudice one of the parties in
this action.
for

whether

clearly

But prejudice is not the determinative standard
these

hearsay

presented here.

statements

with

no

should

exception

be

admitted.

under

the

are

circumstances

Accordingly, they had to be excluded.

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They

II.

The Jury Verdict Form
The Jury returned the following verdict:
____We, the jury, find in favor of the Defendants.
OR
X___We, the jury, find in favor of the Plaintiff and
against the Defendants and find that the negligence of
Gary Robinson caused compensatory damages to the
Plaintiff in the total amount of: $650,000.
Do
you
also
find
that
the
Plaintiff
contributorily negligent in causing his damages?

was

_____YES
_ X

NO

If your answer to
“Yes,” what percentage
Plaintiff?____________;
Based

on

this

verdict,

the
do

preceding question
you attribute to

judgment

was

entered

in

was
the
favor

of

Plaintiff and against Defendants in the amount of $650,000.
Defendants complain about the order of the questions on the
special verdict form.
contributory

They contend that the question regarding

negligence

should

have

preceded

the

compound

question that included negligence, causation, and damages.
Court disagrees.
was

negligent

The

The jury clearly found that Defendants’ driver
and

that

his

negligence

caused

damages to Plaintiff in the amount of $650,000.

compensatory
The jury also

clearly found that Plaintiff was not contributorily negligent at
all.

Thus, it is clear that Plaintiff is entitled to recover

$650,000 from Defendants based on that jury verdict.

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It is also clear that the jury was properly instructed on
the consequence of

its

special verdict findings.

The Court

thoroughly explained the Defendants’ defense of contributory and
comparative negligence and how it should be considered by the
jury.

Trial

Tr. vol. III 71:25-72:4, 73:21-76:2

2015), ECF No. 86.

(Sept. 16,

Then the Court explained the verdict form:

The first -- you’ve got two options, basically.
First,
“We,
the
jury,
find
in
favor
of
the
defendants.” If under my instructions on the law and
based upon your decision you determine that the
defendant should prevail, then the foreperson would
check that box, sign the verdict form and date it
indicating that all 12 jurors have agreed to that
verdict.
If you do not decide in favor of the defendants, the
next option is, “We, the jury, find in favor of the
plaintiff and against the defendants and find that the
negligence
of
Gary
Robinson
caused
compensatory
damages to the plaintiff in the total amount of.” And
you would insert on that line the total amount of
damages that you find were caused by the negligence of
Gary Robinson.
Then you have another question to answer if you do
find damages in that blank. The next question you’re
asked has to do with the defendants’ contributory
negligence defense that I’ve given you all these
instructions on. “Do you find that the plaintiff was
contributorily negligent in causing his damages? Do
you find that the defendant has proved by a
preponderance of the evidence that the plaintiff was
contributorily negligent?” If you answer that question
“no” -- in other words, you find that he was not
contributorily negligent -- you would check that box
“no.” The foreperson would sign the verdict form on
behalf of the jury and date it, and the plaintiff
would receive a judgment for the amount of damages
that you placed in that line preceding that question.
Now, if you find that the plaintiff was contributorily
negligent, that the defendant has carried its burden
7

of proving the plaintiff contributorily negligent, you
would put an X next to “yes” that you have found that.
If you then answer “yes,” then you would put on the
next
blank
the
percentage
of
the
plaintiff’s
contributory negligence.
Id. at 81:22-83:3.

The Court then explained the consequences of

finding contributory negligence:
Now, if you put in that blank 50 percent or more, then
it doesn’t matter what you put in this line about
damages, because the plaintiffs will recover nothing.
If you put in that blank something less than 50
percent, then I will later reduce the amount of
damages that you put in this blank by the percentage
that you put in this blank. I’ll do that.
Id. at 83:4-9.
The

Court’s

instruction

as

a

whole,

including

its

explanation of the verdict form, was consistent with the law and
adjusted to the facts of the case.

The members of the jury were

clearly instructed on how to complete the verdict form and the
consequences of their answers.
found

that

Plaintiff

They knew what to do if they

was

contributorily

negligent.

Significantly, they did not find Plaintiff negligent at all.
There is no reversible error regarding the verdict form.
III. New Hampshire Insurance Company as a Party
Defendants

do

not

contend

that

New

Hampshire

Insurance

Company should not have been a named party in this action.

New

Hampshire Insurance Company was properly joined as a Defendant
pursuant to Georgia’s direct action statute, O.C.G.A. § 40-1112(c).

Defendants complain about the Court’s explanation to

8

the jury of why the insurance company was a Defendant in the
case.

The Court explained to the jury:

The plaintiff, Mr. Wallace, seeks money damages to
compensate him for the injuries caused by the wreck.
Plaintiff has not sued Mr. Robinson individually, but
he has sued Mr. Robinson's employer, Wiley Sanders
Truck Lines, Inc. And the parties have stipulated and
agreed that Wiley Sanders Truck Lines, Inc., is
legally responsible for the acts of Mr. Robinson on
the day of the wreck. New Hampshire Insurance Company,
the other defendant in this case, is the insurance
company for Wiley Sanders Truck Lines, Inc. And
although New Hampshire Insurance Company's presence
should not affect the nature or amount of your
verdict, the company will be jointly responsible with
Wiley Sanders Truck Lines, Inc., for any verdict in
this case.
Trial

Tr.

vol.

instruction

is

III
an

64:19-65:6

accurate

(emphasis

description

of

added).
New

This

Hampshire

Insurance Company’s status as a party under Georgia’s direct
action statute.

See Andrews v. Yellow Freight Sys., Inc., 262

Ga. 476, 476, 421 S.E.2d 712, 713 (1992) (finding that trial
court erred in dismissing the insurance company from the action
and

remanding

insurance

the

company

case
“as

so
a

the

named

trial

court

defendant

could

required

add
to

the

share

liability for payment of the judgment previously rendered”).
This explanation accurately informed the jury of why New
Hampshire Insurance Company was a party in the case.

And it

certainly did not unduly prejudice either Defendant.

There is

no

that

contention

that

the

jury

should

not

have

known

the

insurance company was a party, and it would appear that if there

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were any prejudice, it would be the jury simply knowing that an
insurance

company

is

a

party.

But

Georgia

law

permits

an

insurance company to be joined as a party, and it was not error
to explain the insurance company’s status to the jury.
IV.

Plaintiff’s Counsel’s Closing Argument
Defendants

improper

argue

arguments

to

that
the

Plaintiff’s
jury

during

counsel
his

made

closing

several
argument,

although Defendants did not object when the arguments were made.
Defendants

had

a

duty

to

alert

the

Court

when

the

alleged

improper argument was made so that the Court could intervene at
that time if necessary.

But the Court does understand that

under certain exceptional circumstances failure to object to a
closing argument does not amount to a waiver of the objection
later.

See McWhorter v. City of Birmingham, 906 F.2d 674, 677

(11th Cir. 1990) (per curiam) (noting that “[a] contemporaneous
objection

to

improper

argument

is

certainly

the

preferable

method of alerting the trial court to the error and preserving
such errors for review” but that “improper argument may be the
basis for a new trial even if no objection has been raised” if
“the interest of substantial justice is at stake”).

Therefore,

the Court has reviewed the transcript of the closing argument to
ascertain whether Plaintiff’s counsel committed misconduct that
gravely impaired “the calm and dispassionate consideration of
the case by the jury,” thus warranting the serious consequence

10

of awarding a new trial.

BankAtlantic v. Blythe Eastman Paine

Webber, Inc., 955 F.2d 1467, 1474 (11th Cir. 1992) (quoting
Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988))
(noting

that

new

trial

may

be

warranted

“based

on

grossly

improper and inflammatory references made by plaintiff’s counsel
that

were”

not

justified

by

the

record

or

if

the

closing

argument focuses on evidence or a legal theory that had been
excluded by the trial judge).

Having reviewed the argument, the

Court finds no error warranting a new trial.
V.

Amount of the Verdict
Defendants claim that the verdict was excessive and that

they should get another crack at another jury with a new trial.
Apparently, Defendants believe that any verdict exceeding what
they were willing to pay voluntarily is excessive.

But that is

obviously not the standard by which motions for new trial are
decided.
the

To overturn a jury verdict because it is excessive,

verdict

amount

must

conscience of the court.”

be

“so

excessive

as

to

shock

the

Christopher v. Florida, 449 F.3d

1360, 1368 (11th Cir. 2006) (quoting Simon v. Shearson Lehman
Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990)).

The verdict

here does not meet this standard for excessiveness.
Plaintiff suffered a serious shoulder injury that required
surgery

and

acknowledge,

substantial
Plaintiff

physical

presented

11

therapy.
evidence

As
that

Defendants
his

special

damages

exceeded

continued

to

$100,000.

experience

And

pain

Plaintiff

long

after

testified

the

wreck

that

he

occurred,

indicating that he may have future pain and suffering for the
rest of his life.

The Court properly instructed the jury on the

elements of compensatory damages and what the jury could and
could

not

consider.

The

evidence

compensatory damages of $650,000.

supports

a

finding

of

Such a verdict is certainly

not so excessive that it warrants the drastic remedy of a new
trial or remittitur.
CONCLUSION
Defendants’

Motion

for

New

Trial

Or

Alternatively

Remittitur (ECF No. 82) is denied.

IT IS SO ORDERED, this 25th day of January, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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