Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nazarak v. Waite

Superior Court of Pennsylvania

August 2, 2019

SETH NAZARAK
v.
RUBIN WAITE, JR. AND HARANIN CONSTRUCTION, INC. Appellants

          Appeal from the Judgment Entered December 10, 2018 In the Court of Common Pleas of Centre County Civil Division at No(s): 2016-2400

          BEFORE: LAZARUS, J., MURRAY, J., and STEVENS [*], P.J.E.

          OPINION

          STEVENS, P.J.E.

         Rubin Waite, Jr., ("Waite") and Haranin Construction, Inc., ("Haranin Construction") (collectively "Appellants") appeal from the judgment entered on December 10, 2018, [1] in the Court of Common Pleas of Centre County in favor of Seth Nazarak ("Nazarak"). After a careful review, we affirm.

         The relevant facts and procedural history are as follows: On June 26, 2016, Nazarak filed a complaint against Appellants, and in response to Appellants' preliminary objections, Nazarak filed an amended complaint on July 25, 2016.[2] Therein, Nazarak contended that, on or about December 10, 2014, Waite was driving a commercial vehicle owned by his employer, Haranin Construction, and Nazarak was driving a commercial vehicle owned by his employer, M & C Trucking Company. Both men were acting within the course and scope of their employment when the vehicle being driven by Waite rear-ended the vehicle being driven by Nazarak, who was stopped at a red traffic signal at the intersection of Route 22 and Cook Street in Cambria County.

         Nazarak contended that, as a direct and proximate result of the accident, he sustained serious injury. Accordingly, he presented claims of negligence against Waite, vicarious liability against Haranin Construction, and negligent entrustment against Haranin Construction. On September 15, 2016, Appellants filed an answer with new matter to Nazarak's amended complaint, and on October 5, 2016, Nazarak filed a reply to the new matter.

         On September 14, 2017, Appellants filed a motion to compel an independent medical examination, and on October 17, 2017, the parties agreed upon a consent order for Nazarak to submit to an independent medical examination with Appellants' expert, J. William Bookwalter, III, M.D.

         On June 4, 2018, Appellants filed several motions in limine. Relevantly, Appellants filed motions in limine seeking to limit Nazarak's medical damages evidence solely to the amount paid by workers' compensation and the Department of Public Welfare, preclude evidence of compromise and release and limit Nazarak's wage loss to the amount of indemnity benefits paid by workers' compensation, and preclude Charles J. Harvey, D.O., from testifying based on opinions and reports authored by a non-testifying expert. Nazarak filed a reply in opposition to Appellants' motions in limine, and the trial court denied the motions in limine indicated supra.

         Thereafter, both parties filed proposed jury instructions, and Appellants additionally filed supplemental proposed jury instructions. The case proceeded to a jury trial, at the conclusion of which the jury answered "yes" to the question: "Was the negligence of Rubin Waite, Jr. and Haranin Construction, Inc. a factual cause of any harm to Seth Nazarak?" Jury Verdict Sheet, filed 6/21/18. Further, the jury answered "$750, 000" to the question: "State the amount of damages, if any, sustained by Seth Nazarak as a result of the accident." Id.

         Appellants filed timely post-trial motions, to which Nazarak filed a reply in opposition. By opinion and order entered on October 15, 2018, the trial court denied Appellants' post-trial motions. Appellants filed a notice of appeal on November 13, 2018. On that same date, the trial court directed Appellants to file a Pa.R.A.P. 1925(b) statement, Appellants timely complied, and the trial court filed a brief statement referring this Court to its October 15, 2018, opinion. Thereafter, as indicated supra, judgment was entered against Appellants and in favor of Nazarak.

         On appeal, Appellants present the following issues for our review (verbatim):

A. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL IN PERMITTING EVIDENCE OF PLAINTIFF'S WORKERS' COMPENSATION LIEN AT TRIAL?
1. Whether the trial court erred in permitting evidence of Plaintiff's workers' compensation lien at trial as it is an inadmissible collateral source, permitted a double recovery and usurped the function of the jury by valuing the case and prejudicing the Defendants?
2. Whether a new trial should be awarded as the trial court erred in permitting evidence of Plaintiff's workers' compensation compromise and release at trial as evidence of settlements are inadmissible at trial and its introduction valued the case for the jury prejudicing the Defendants?
3. Whether a new trial should be awarded as the trial court erred in refusing to issue Defendants' supplemental jury points for charge 1 and 3 to provide the jury with a full understanding of Plaintiff's duty to repay the workers' compensation lien misleading the jury and prejudicing the Defendants?
B. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL BASED UPON EXPERT TESTIMONY PERMITTED AND EXCLUDED AT TRIAL?
4. Whether a new trial should be awarded as Plaintiff's vocational expert Celia Evans testified outside the scope of her expert report prejudicing the Defendants?
5. Whether a new trial should be awarded as the expert report and opinions of non-testifying expert Dr. Brooks were permitted to be introduced at trial prejudicing the Defendants?
6. Whether a new trial should be awarded for precluding the testimony of Plaintiff's expert Dr. Rundorff that Plaintiff's lumbar spine could have been in the same condition prior to the at-issue accident prejudicing the Defendants?
C. WHETHER THE COURT MADE EVIDENTIARY ERRORS REQUIRING A NEW TRIAL BY PERMITTING IMPROPER REFERENCES AT TRIAL?
7. Whether a new trial should be awarded based upon Plaintiff's counsel's improper reference in his closing argument to the fact that the Defendants did not produce a vocational or economic expert as their figures if presented would have been large prejudicing the Defendants?
8. Whether a new trial should be awarded based upon Plaintiff's counsel's solicitation of testimony regarding the brake failure of the at-issue truck from Defendant Waite after Defendants had already admitted negligence prejudicing the Defendants?

Appellants' Brief at 11-12 (suggested answers omitted) (bold in original).

         In issue "A," Appellants present three sub-issues related to evidence regarding Nazarak's receipt of workers' compensation benefits. Specifically, they contend the trial court erred in permitting evidence that Nazarak received workers' compensation benefits, permitting evidence of Nazarak's compromise and release with regard to his workers' compensation claim, and failing to give Appellants' supplemental points for charge numbers 1 and 3.

         With regard to their first sub-issue, Appellants contend the trial court erred in admitting evidence that Nazarak received workers' compensation benefits, which Nazarak would have to repay in the event of a recovery in the instant case.[3] Id. at 31. Specifically, Appellants assert the evidence regarding the existence of the workers' compensation lien violated the "collateral source rule." Id. at 33. They further assert the evidence of the workers' compensation lien confused and misled the jury into believing that, since such benefits were paid to Nazarak, his injuries "must have been caused by the at-issue accident[, ]" thus usurping the function of the jury. Id. at 35. Finally, they suggest the evidence of the workers' compensation lien permitted a "double recovery" by Nazarak. Id. at 38.

         "[T]he admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law." Schmidt v. Boardman Co., 958 A.2d 498, 516 (Pa.Super. 2008) (citation omitted).

An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa.Super. 2007).

         In addressing Appellants' first sub-issue, the trial court relevantly indicated the following:

The collateral source rule provides that payments from a collateral source shall not diminish the damages recoverable; the rule was intended to avoid precluding a party from obtaining redress for injuries merely because coverage was provided by a collateral source. Nigra v. Walsh, 797 A.2d 353, 356 [(Pa.Super. 2002)]. A plaintiff is prevented from introducing evidence about the lack of workers' compensation during trial due to the possibility of creating sympathy. Hileman v. Pittsburgh and Lake Erie R. Co., 546 Pa. 433, 685 A.2d 994, 999 (1996). Specifically, "it has never appeared necessary to negate any assumption that there is workers' compensation (or subrogation for that matter) in actions by employees against third parties for injuries that occur on the job." Id.
Workers' compensation gives employers the right of subrogation when the employer made payments as a result of negligence by a third party. Liberty Mutual Ins. Co. v. Domtar Paper Co., 77 A.3d 1282, 1289 [(Pa.Super. 2013)]. The purpose of subrogation is to prevent double recovery for the same injury, [] relieve employers of liability for third party's negligence, and prevent negligent parties from escaping liability. Young v. W.C.A.B. (LGB Mechanical), 976 A.2d 627, 630 (Pa.Commw. 2009).
The evidence that was presented was not presented to preclude Plaintiff [Nazarak] from recovering; Plaintiff [Nazarak] will not receive double pay. Workers' compensation is not a collateral source because the lien must be paid back, as the stated purpose of allowing subrogation of claims by the employer is to prevent workers' compensation from being a collateral source. Additionally, the jury was not influenced by the introduction of the testimony, as the existence of a workers' compensation lien does not imply causation in this case, particularly since [Appellants] admitted liability and the issue was damages.

Trial Court Opinion, filed 10/15/18, at 2-3 (citation omitted).

         We conclude the trial court did not abuse its discretion in this regard. As this Court has recognized:

The collateral source rule, which is intended to protect tort victims, "provides that payments from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer." Thus, this rule "prohibits a defendant in a personal injury action from introducing evidence of the plaintiff's receipt of benefits from a collateral source for the same injuries which are alleged to have been caused by the defendant."

Simmons v. Cobb, 906 A.2d 582, 585 (Pa.Super. 2006) (citations and footnote omitted) (emphasis added). Further, as our Supreme Court has recognized, this rule "was intended to avoid precluding a [plaintiff] from obtaining redress for his or her injury merely because coverage for the injury was provided by some collateral source, e.g. insurance." Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350, 352 (1984). See Denardo v. Carneval, 444 A.2d 135, 140 (Pa.Super. 1982) ("Pennsylvania law is clear; the victim of a tort is entitled to the damages caused by the tortfeasor's negligence regardless of compensation the victim receives from other sources.").

         In the present case, it was Nazarak, the plaintiff below, who wanted the jury to know that he had received the workers' compensation benefits. Thus, the purpose underlying the collateral source rule-protection of the plaintiff and prevention of a benefit to the alleged wrongdoer-simply was not implicated. See Simmons, supra. Accordingly, the trial court did not abuse its discretion in its application of the collateral source rule.

         Further, there is no dispute that Nazarak will have to repay the workers' compensation lien from the damages awarded by the jury.[4] See Liberty Mutual Ins. Co., supra (noting an employer/workers' compensation carrier may seek subrogation or reimbursement out of a tort recovery by an injured claimant). In such a case, this Court has held that an injured claimant may "plead, prove, and recover" the amount paid by the workers' compensation carrier. See Ricks v. Nationwide Ins. Co., 879 A.2d 796 (Pa.Super. 2005).

         Further, we note that, because Nazarak will have to repay the workers' compensation lien, there is no risk of "double recovery" as alleged by Appellants, and the jury was free to determine what impact, if any, the payment of such benefits had on its finding of factual causation and damages. See Dale Mfg. Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980) (holding where there is subrogation in workers' compensation matters, there is no double recovery when the claimant recovers for negligence against a third party); Matheny v. West Shore Country Club, 648 A.2d 24 (Pa.Super. 1994) (holding it is within the exclusive province of the jury, as factfinder, to hear evidence on damages and decide what amount fairly compensates the plaintiff).[5] Accordingly, we conclude the trial court did not abuse its discretion in permitting Nazarak to introduce evidence of the workers' compensation lien in his pursuit of damages.

         With regard to their next sub-issue, Appellants contend the trial court erred in admitting evidence of Nazarak's compromise and release with regard to his workers' compensation claim. Specifically, Appellants aver the evidence of the compromise and release violated 42 Pa.C.S.A. § 6141, pertaining to the inadmissibility of settlement agreements.[6]

         Section 6141 of the Judicial Code provides, in relevant part, the following:

§ 6141. Effect of certain settlements
(a) Personal injuries.--Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(c) Admissibility in evidence.--Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b)[7] shall not be admissible in evidence on the trial of any matter.

42 Pa. C.S.A. § 6141(a), (c) (bold in original) (footnote added).

         Turning to an analysis of 42 Pa.C.S.A. § 6141, the clear and unambiguous words of Subsection (a) provide that settlement with or any payment to an injured person is not "an admission of liability by the person making the payment or on whose behalf the payment was made[.]" 42 Pa.C.S.A. § 6141(a) (bold added). See Hatfield v. Continental Imports, Inc., 530 Pa. 551, 610 A.2d 446, 451 (1992) (holding the rules of statutory construction are used to interpret Section 6141).

         In the case sub judice, there is no dispute that the "settlement" at issue (the workers' compensation compromise and release) was not made by Appellants, and Appellants were not in any way a party to the settlement. Rather, the settlement was made between Nazarak and his employer/employer's workers' compensation carrier, Liberty Mutual. Thus, according to the plain language of Subsection 6141(a), while the settlement does not constitute an admission of liability by Nazarak's employer or Liberty Mutual, it has no effect on the liability of Appellants (the third party tortfeasors). 1 Pa.C.S.A. § 1903 (indicating words and phrases are given their common and approved usage); 1 Pa.C.S.A. § 1921 (indicating when words are clear and free from ambiguity they may not be disregarded).

         However, as the trial court noted, Subsection (c) indicates that a settlement referred to in Subsection (a) "shall not be admissible in evidence on the trial of any matter." 42 Pa.C.S.A. § 6141(c) (bold added). Accordingly, when Subsections (a) and (c) are read together, arguably, the settlement at issue was not admissible in the instant trial.

         However, to the extent the trial court erred in permitting Nazarak to enter into evidence the fact he settled his workers' compensation claim, we agree with the trial court that the error does not constitute reversible error. As the trial court cogently indicated:

[Appellants] admitted liability before the trial began and the issue remaining was damages. The existence of the [compromise] and release was not used to improperly imply liability but rather was used to show damages by [Nazarak], and that he was no longer employed. There was no prejudice to [Appellants] due to [Appellants'] acceptance of liability. The jury was not instructed they were bound by the figure [contained in the compromise and release] but were free to accept the evidence as it was presented.
The improper admission of a settlement agreement into evidence does not necessarily constitute reversible error. To constitute reversible error, a ruling on evidence or an instruction to a jury must be shown not only to have been erroneous but harmful to the party complaining. The harm inflicted upon the defendant from the introduction of a settlement into evidence results from the jury's tendency to improperly construe a legal settlement as an admission by the settling party to liability. Rochester Mach. Corp. v. Mulach Steel Corp., 498 Pa. 545, 549, 449 A.2d 1366, 1368 (1982). The admission of a settlement agreement prejudices the plaintiff by resulting in a lower damage award, because the jury may improperly infer that the plaintiff has already been compensated for his or her injuries.
[Appellants] argue that by introducing the figure used by Liberty Mutual to calculate [Nazarak's] damages in the settlement, the fact-finding role of the jury was usurped. [Appellants] argue the jury simply used Liberty Mutual's figures for damages, rather than making an independent finding of damages. The settlement agreement was not prejudicial in that regard. The jury, as fact-finder, is entitled to give as much or as little weight, if any at all, to any piece of evidence that is so desires, and was instructed as such at trial. There is simply no factual or legal basis to support the conclusion that the jury copied Liberty Mutual's damage calculations into the verdict.

Trial Court Opinion, filed 10/15/18, at 4-5 (citations, quotation marks, and quotations omitted) (emphasis in original).

         We agree with the trial court's reasoning and, consequently, conclude that a new trial is not warranted as to this issue. Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa.Super. 2002) ("To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or [unduly] prejudicial to the complaining party.").[8]

         With regard to their next sub-issue, Appellants argue the trial court erred in refusing to give the jury Appellants' proposed supplemental jury instructions numbers 1 and 3. Specifically, Appellants contend the trial court's failure to give the proposed supplemental jury instructions improperly resulted in the jury believing "that Liberty Mutual was owed the full lien amount regardless of the case outcome and that [Nazarak] personally would owe that amount." Appellants' Brief at 57. They also suggest the trial court's instruction did not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.