HDI-Gerling America Insurance Co. v. Carlile Transportation Systems, Inc.

          Appeal from the Superior Court No. 3AN-14-07190 CI of the State of Alaska, Third Judicial District, Anchorage, Dani Crosby, Judge.

          Mark E. Wilkerson and Michelle Q. Pham, Preg O'Donnell & Gillett PLLC, Seattle, Washington, for Appellant/Cross-Appellee.

          Robert L. Richmond and Marc G. Wilhelm, Richmond & Quinn, P.C., Anchorage, for Appellee/Cross-Appellant.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          WINFREE, Justice.

         I. INTRODUCTION

         An insurance company, as subrogee of its trucking company client, sued another trucking company for negligence after an accident between two truckers resulted in the insurance company paying over $3.5 million in oil spill remediation costs. After a trial the jury determined that the other trucking company's driver was not negligent and returned a defense verdict. The insurance company now appeals some of the superior court's trial rulings. Seeing no reversible error, we affirm the superior court's entry of final judgment.

         II. FACTS AND PROCEEDINGS

         A. Facts

         One night in February 2014 Carlile Transportation Systems, Inc. driver Bart Neal was driving a tractor-trailer southbound on the Dalton Highway. Neal could not steer properly at speeds above 35 miles per hour and decided to stop to put chains on his tires, referred to as "chaining up." Neal stopped his rig in the roadway, partially blocking both traffic lanes, and, by his account, activated his flashers. Neal did not deploy reflective triangles.

         Meanwhile, south of where Neal was stopped, Eggor Enterprises, Inc. driver Joe Seurer was hauling a load of fuel northbound. By his account, Seurer saw lights in the distance but could not determine what they were. He called on the radio but received no response, and he slowed his tractor-trailer from 50 to 35 miles per hour. About three-quarters of a mile from Neal, Seurer again saw lights and thought they might be from a pipeline maintenance truck stopped off the side of the road. He did not see reflective triangles or flashers.

         The road had an S-curve between Seurer and Neal. Until Seurer rounded the final curve, he did not realize Neal's rig was blocking the road. Seurer applied his brakes about 300 feet from Neal, avoiding a serious collision but causing Seurer's trailer to fall onto the side of the highway. The trailer's fuel load spilled alongside the road. Eggor Enterprises's insurer, HDI-Gerling American Insurance Company (HDI), paid over $3.5 million in cleanup costs to remediate the spill.

         B. Proceedings

         In October 2015 HDI sued Carlile for the remediation costs and other damages, asserting the spill was caused by Neal's negligence. The superior court held a ten-day jury trial in September 2016.

         HDI's primary theory of the case was that Carlile was vicariously liable for Neal's actions and that Neal was either common-law negligent or negligent per se for violating 49 C.F.R. § 392.22, a federal highway regulation that applies to commercial drivers.^[1] Section 392.22 provides that commercial drivers who stop for any reason other than a "necessary traffic stop" must immediately activate flashers^[2] and, "as soon as possible, but in any event within 10 minutes," deploy warning devices such as reflective triangles.^[3] HDI introduced evidence tending to show that Neal had not activated flashers; Neal admitted to not deploying triangles.

         Carlile argued in the alternative that Neal was not negligent, or that Neal's negligence did not cause HDFs injury, or that Seurer was negligent and comparatively at fault. Carlile sought to show that Neal complied with section 392.22 by arguing that it does not apply to chain-up stops lasting less than ten minutes. Carlile introduced evidence tending to show that Neal had activated flashers but conceded that he had not deployed triangles.

         Both parties presented evidence supporting their theories. Much of the evidence was conflicting, but all witnesses - including Seurer and a former State of Alaska compliance officer - agreed that commercial drivers did not have to deploy triangles when they stopped to chain up on the Dalton Highway.

         Most of the trial proceeded without controversy, but during Neal's testimony he made two potentially prejudicial remarks in front of the jury. Neal knew Seurer by his radio call sign "Smokin' Joe," and during pretrial proceedings the superior court ordered Carlile to refrain from referring to Seurer by this name; HDI was concerned that the name would suggest to the jury that Seurer was a reckless driver.

         Although warned not to say "Smokin' Joe" during testimony, Neal nevertheless said: "So if you got to chain up, by the time I go out, put the reflectors out, go back, chain up, and then go back out and get the reflectors again, under this circumstances, I probably would have been killed by Smokin' Joe when he come around that corner." The superior court called an immediate bench conference, which concluded with the court deciding: "We'll let it go this time, but next time, if he says it again, I'll say something." HDI did not object to this course of action.

A few minutes later, Neal used "Smokin' Joe" again:

Q: Didn't I ask you about every conversation you had with every person at the scene of that accident?

A: Yes, and I believe I told you I only talked to two people.

Q: Did you -

A: Smokin' Joe - or -

         After this second use, the superior court waited until the jury was excused before admonishing Neal and Carlile. HDI did not object to this course of action, and there was no third use of Seurer's radio call sign.

         Carlile moved for a directed verdict after HDI rested its case, but that motion was denied. After the close of all the evidence, the parties agreed to a special verdict form asking whether either Carlile or Eggor was negligent and whether that negligence caused HDI's injury. The form did not distinguish between common-law negligence and negligence per se.

         HDI sought a negligence per se jury instruction based on section 392.22 and Neal's failure to use flashers or deploy triangles. As part of its proposed instruction, HDI requested that the superior court define "necessary traffic stop" in the regulation as "a stop that is caused by (1) an official traffic control device, (2) an authorized governmental agent, (3) an authorized flagger, or (4) to avoid other traffic on the roadway." This grammatically challenged definition would have excluded chain-up stops from being a necessary traffic stop, preventing the jury from finding that Neal had complied with the regulation.

         Carlile opposed the instruction, arguing that negligence per se did not apply in this case. Carlile also opposed defining necessary traffic stop in section 392.22, arguing alternatively that chain-up stops could qualify as necessary traffic stops or that the jury did not need the term defined for them.

          The superior court determined that negligence per se could apply and decided to give a negligence per se instruction. But the court did not define necessary traffic stop for the jury, reasoning:

I'm not going to tell them how to interpret that. The [federal regulation] doesn't tell them. I'm going to leave that in the jury's good hands. The cases [offered by HDI in support of its definition] were state cases, if I recall correctly. They were interesting, but I feel without a ...