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Lloyd Kingery v. Roscoe Barrett

March 4, 2011

LLOYD KINGERY, APPELLANT,
v.
ROSCOE BARRETT,
APPELLEE.



Supreme Court No. S-13246 Superior Court No. 3PA-03-01392 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly W. Cutler, Judge.

The opinion of the court was delivered by: Stowers, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.

I. INTRODUCTION

Roscoe Barrett's vehicle collided with Lloyd Kingery's vehicle near Palmer. Shortly thereafter, another vehicle collided with Kingery's vehicle. Kingery sued Barrett and the other driver to recover money damages for his injuries. Barrett admitted that he drove negligently but argued that his negligence was not the cause of Kingery's injuries. Kingery settled with the other driver; his suit against Barrett went to trial. The jury returned a defense verdict, finding that Barrett was not the cause of any injuries to Kingery. The superior court denied Kingery's motion for a new trial, and Kingery appeals. Because the superior acted within its broad discretion in denying the motion for a new trial, we affirm.

II. FACTS AND PROCEEDINGS

In 2001 Lloyd Kingery worked the night shift for a road construction company removing rock from Hatcher's Pass. On the morning of October 12, 2001, he was driving home from work on the Old Glenn Highway near Palmer when he was involved in a traffic accident with Roscoe Barrett. Barrett had been driving on Maud Road. As he approached the intersection with the Old Glenn Highway, he was unable to stop due to icy road conditions and collided with Kingery.

After the impact (the first collision) Barrett moved his vehicle to the side of the road and walked over to talk to Kingery. Sometime between one and five minutes later, as the two men were talking and exchanging information near Kingery's pickup truck, a third vehicle operated by Jeremy Miller approached. Barrett warned Kingery, who could not see from where he was standing that a vehicle was approaching. Kingery jumped back through the open passenger door of his truck just before the oncoming car struck Kingery's truck (the second collision).

The second collision spun Kingery's truck into the ditch on the side of the road. Kingery's truck was towed from the scene a few hours later, and Kingery got a ride home. Kingery slept during the day on October 12 and went to work that night as usual. His employer informed him that night that the road construction job he had been working was ending for the winter, as is customary in Alaska. Kingery's layoff had nothing to do with the collisions earlier in the day. Kingery went to a chiropractor, Dr. Bobby Lucas, several times shortly after the collisions complaining of neck and back pain. Dr. Lucas had treated Kingery for neck, shoulder, and back pain in the two years prior to the collisions as well. Kingery did not work again until the following summer.

During the summer of 2002, while operating a bulldozer at a construction site, Kingery injured his back again. Kingery continued to visit Dr. Lucas in 2002. He also visited Dr. David Werner, a physician, for treatment following the 2002 injury, complaining of back pain. Dr. Werner referred Kingery to Marian Lear, a physical therapist, for treatment as well.

In October 2003 Kingery and his wife filed a complaint in the superior court alleging that Barrett and Miller were negligent in the 2001 collisions. Miller and Barrett answered the complaint. Miller denied the allegations of negligence, causation, and damages and offered several affirmative defenses. Barrett admitted that he drove negligently, but denied that his negligence was "the real and/or proximate cause of the damages" the Kingerys claimed. Barrett also raised several affirmative defenses, including comparative negligence.

The Kingerys settled with Miller before the case went to trial. On the first day of trial, September 4, 2007, Kingery's wife dismissed her claims against Barrett, leaving Kingery as the sole plaintiff and Barrett as the sole defendant.

At trial Kingery testified to the circumstances of both collisions and how he felt afterwards. At trial he agreed that he did not "feel like [he]'d been injured" following the first collision, but that following the second collision he could not feel anything: "All I felt was just needles and pins when I did get hit, all the way through my back bone." He nonetheless testified that he felt "good" later that day and that he "was getting sore but it wasn't bothering [him]." According to Kingery, he "just kept getting sorer and sorer and sorer" over the four or five days following the collisions.

Dr. Lucas testified that he treated Kingery for neck, shoulder, and back pain several times following the 2001 collisions, although Kingery did not mention the collisions until his second visit. Dr. Lucas testified that he x-rayed Kingery's back and discovered moderate to severe degenerative disc disease ten days after the collisions, but that the disease would have developed over a period of time and would not have been caused by the collisions. Dr. Lucas also testified that he could not say whether the pain Kingery experienced following the 2002 bulldozer injury was caused by the collisions.

Dr. Werner agreed that he did not "feel comfortable expressing an opinion about whether or not Mr. Kingery's symptoms . . . were the result of a car accident that happened in October of 2001." Physical therapist Lear agreed that she did not "have the ability to determine a cause" of Kingery's injuries.

The 2005 deposition testimony of independent medical examiner

Dr. John M. Ballard was presented to the jury by video as well. After Kingery had filed suit in this case, Dr. Ballard reviewed Kingery's medical and chiropractic records, took a medical history from Kingery, and performed a physical examination on him. Dr. Ballard testified that he believed Kingery "had a cervical and a lumbar strain . . . as a result of [the 2001 collisions]." He testified that the soft tissue injury Kingery suffered gave Kingery "a fair amount of need to . . . see a chiropractor." He also testified that he could not determine which of the two collisions "was worse."

Prior to trial, both parties agreed that no reference should be made to the fact that Barrett was covered by insurance. At trial Kingery nonetheless sought to introduce portions of the claim file prepared by Allstate Insurance Company, Barrett's insurer, regarding the collisions. After suggesting he might introduce the Allstate claims records by calling Tracy Mears, an Allstate employee, as a witness, Kingery elected instead to file what he labeled an "Offer of Proof." The filing was not actually an offer of proof, as the superior court noted, but rather a "paragraph by paragraph argument as to why the court should admit [the claim file]." The court ...


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