Black v. Leatherwood Motor Coach Corp.

ROSALYN B. BELL, Judge. Appellants/cross-appellees Estella Black and Mary Martinez brought an action against appellee Leatherwood Motor Coach Corporation (Leatherwood) and others for injuries they sustained in a bus accident on September 29, 1986 on Interstate 295 in Salem County, New Jersey. Joe Martinez, Mary Martinez’s husband, also brought suit for damages to their marital relationship. Prior to trial, the parties agreed that the substantive tort law governing the case would be that of New Jersey.

A jury in the Circuit Court for Baltimore City returned verdicts for all three plaintiffs, but declined to award punitive damages. Estella Black was awarded $370,022.12, Mary Martinez $1,053,773.08, and Joe Martinez $53,312.82. Following the trial, Leatherwood requested that the jury’s award to Mary and Joe Martinez be consolidated and reduced pursuant to Md.Cts. & Jud.Proc.Code Ann., § 11-108 (1974, 1989 Repl.Vol.) (the $350,000 “cap” on noneconomic damages in personal injury cases). The trial judge declined to make any adjustment to the judgment awarded by the jury.

Both sides have appealed from the judgment of the circuit court. Appellants contend that the trial judge erred in his instructions to the jury on the issue of punitive damages. Leatherwood, on the other hand, claims that the trial judge erred when he failed to apply the “cap” on noneconomic ³¹ damages and reduce the jury’s award to Mary and Joe Martinez. Leatherwood then argues that, assuming that the cap should have been applied, the loss of consortium claim of Mary and Joe Martinez should have been consolidated with Mary’s individual claim and then reduced pursuant to the cap.

Finding no error in the trial judge’s rulings on the issues raised, we will affirm. The facts are briefly stated. Appellants, residents of the District of Columbia and Virginia, were passengers on a bus owned by Leatherwood, then a Virginia corporation. The bus was travelling to Atlantic City, New Jersey, on September 29, 1986.

An accident occurred which resulted in serious injuries to appellants. Appellants brought suit in the Circuit Court for Baltimore City against appellee and several other defendants, including the driver and the charter company. 1 Appellants filed a Notice of Intent to Rely on Foreign Law, specifically New Jersey law. All parties agreed from the outset that the case was to be governed by New Jersey substantive law. The trial judge granted summary judgment to appellants on the issue of liability, and the case proceeded to trial solely on the issue of damages.

The jury returned the verdicts described supra, but declined to award any punitive damages. Following the trial, the trial judge declined Leatherwood’s request, pursuant to Md.Cts. & Jud.Proc.Code Ann., § 11-108, to reduce the noneconomic damages awarded by the jury. This appeal and cross-appeal followed. JURY INSTRUCTION ON PUNITIVE DAMAGES 2 Following the trial judge’s instructions to the jury, Leatherwood requested that the trial judge provide an additional instruction to the jury on the issue of punitive damages.

Leatherwood argued that the trial judge’s original instruc ³² tion on the issue was inadequate because it failed to point out that negligence, even gross negligence, was insufficient to support an award of punitive damages. During a lengthy argument prior to the trial judge’s additional instruction, appellants argued that no such additional instruction was necessary because Leatherwood’s requested instruction was fairly covered in the trial judge’s original charge to the jury. Appellants alternatively argued that, if the proposed instruction were given, some definition of the term “gross negligence” was required. After initially indicating that he would not provide any additional instructions on the issue of punitive damages, the trial judge changed his mind.

He stated to the jury: “Counsel have asked that I clarify two things, so let me do that now. With regard to the punitive damages that I instructed you on, I want to make it clear that for you to find that punitive damages are supportable, something more than the mere commission of a wrong is required for punitive damages. Mere negligence is not enough, even if the negligence is so extreme in degree as to be characterized as gross negligence. “For you to find that punitive damages are supported, it must go beyond even that.” Appellants excepted to this instruction, raising two issues: that the instruction was unnecessary because the trial judge’s original instructions fairly covered the issue; and that the instruction was improper and confusing because it was taken out of context from a New Jersey appellate opinion on punitive damages. 3 On appeal, appellants contend (1) that the challenged instruction was covered in the trial judge’s original instruc ³³ tions on the issue; (2) that the challenged instruction failed to provide a definition of the term “gross negligence”; (3) that, by stating that “counsel have asked,” the trial judge implied that both sides requested the additional instruction; and (4) that by quoting one sentence from a New Jersey case out of context, the trial judge’s additional instruction increased the likelihood of confusion on the part of the jury. Leatherwood argues that the second and third issues raised by appellants were not preserved for our review because appellants did not raise these grounds when they excepted to the trial judge’s additional instruction on punitive damages.

Based on our review of the record, as outlined earlier, we agree that the second and third issues were not properly preserved. We explain. Rule 2-520 sets forth the procedures for a trial judge’s instructions to the jury in a civil case. Rule 2-520(a) mandates that the trial judge instruct the jury at the conclusion of the evidence and before closing arguments by counsel.

The instructions may be given orally or in writing, verbatim as requested by counsel or in the court’s own words, or by any combination of these methods. Rule 2-520(b). In objecting to instructions as given, counsel must object “on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” Rule 2-520(e). The purpose of this requirement is to allow the trial judge an opportuni ³⁴ ty to correct or supplement his instructions.

Barone v. Winebrenner, 189 Md. 142, 145 , 55 A.2d 505 (1947). Upon objection to the instructions given, the trial judge has the power and discretion to amplify his or her charge to the jury to cover the law of the case. Wood v. Abell, 268 Md. 214, 235 , 300 A.2d 665 (1973). In the event additional instructions are given, once again, the trial judge is not bound to use the words of counsel, but may orally express the additional instructions to the jury in his or her own words.

Rule 2-520(c). Upon the giving of additional instructions, the requirements of Rule 2-520(e) remain fully applicable; that is, “a party must fully comply with the requirements of the rule at every stage of the instructions in order to preserve his rights; otherwise there is nothing for us to consider on an appeal.” Casey v. Roman Catholic Archbishop of Baltimore, 217 Md. 595, 612 , 143 A.2d 627 (1958). In this case, although appellants objected to Leather-wood’s proposed additional instruction before it was given on the second issue raised on appeal (that no definition of gross negligence was provided), they failed to renew the objection on this ground in their post-instruction exceptions to the additional instruction as given. Thus, this issue is not preserved for our review.

Greenbelt Coop. Publishing Ass’n v. Bresler, 253 Md. 324, 380 , 252 A.2d 755 (1969), rev’d on other grounds, 398 U.S. 6 , 90 S.Ct. 1537 , 26 L.Ed.2d 6 (1970); Morris v. Peace, 14 Md.App. 681, 687 , 288 A.2d 600 , cert, denied, 266 Md. 740 (1972) (appellate court will only address those objections made at the conclusion of the trial judge’s charge to the jury). 4 With respect to appellants’ third point discussed supra, that the trial judge’s language left the impression ³⁵ with the jury that both parties requested the additional instruction, this argument was never raised at all in the trial court and was certainly not preserved. Rule 8-131(a). Appellants did preserve their first and fourth arguments about the trial judge’s additional instruction to the jury on punitive damages.

First, appellants argued that the additional instruction had already been covered by the trial judge’s previous instruction. While this assertion is arguably correct, appellants have failed to demonstrate on appeal how this repetition resulted in prejudice to their case. Trial judges, in their discretion, may decline to give a requested instruction when the substance of the instruction was fairly covered by other instructions. Myers v. Estate of Alessi, 80 Md.App. 124, 132 , 560 A.2d 59 , cert, denied, 317 Md. 640 , 566 A.2d 101 (1989).

This discretion, however, runs both ways; a trial judge may also, in his or her discretion, repeat an instruction which the trial judge feels may have been insufficient or erroneous when originally given. Wood, 268 Md. at 235 , 300 A.2d 665 ; Fisher v. Baltimore Transit Co., 184 Md. 399, 402 , 41 A.2d 297 (1945). In the absence of some claim of prejudice, we see no error in the trial judge’s instruction based on appellants’s first argument. ³⁶ Appellants’s fourth argument is that the trial judge erred by instructing the jury based on a single sentence from a New Jersey case on punitive damages. The trial judge’s additional instruction on the issue of punitive damages was taken from Enright v. Lubow, 202 N.J.Super. 58 , 493 A.2d 1288, 1297-1298 (1985), cert, denied, 104 N.J. 376 , 517 A.2d 386 , affd on motion for reconsideration, 215 N.J.Super. 306 , 521 A.2d 1300 , cert, denied, 108 N.J. 193 , 528 A.2d 19 (1987), in which the New Jersey Superior Court held: “Something more than mere commission of a tort is always required for punitive damages.

There must be circumstances of aggravation or outrage, such as spite or ‘malice’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interest of others that the conduct may be called willful or wanton. There is a general agreement that, because it lacks this element, mere negligence is not enough, even though it is so extreme in degree as to be characterized as ‘gross’ negligence. To satisfy the requirement of willfulness or wantonness there must be a positive element of conscious wrongdoing. That requirement may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.

Otherwise stated, punitive damages are sums awarded when the wrongdoer’s conduct is especially egregious.” (Citations omitted). The trial judge used the highlighted language as the basis for his additional instruction to the jury on punitive damages. While we agree with appellants that the trial judge might well have given the entire passage cited above in order to place the additional instruction in some context, we cannot say that his failure to do so constitutes error. The trial judge had previously instructed the jury on punitive damages and had provided much of the material in the Enright passage quoted above in those original instruc ³⁷ tions.

In Wood , the Court of Appeals specifically rejected the argument, which appellants make here, that the additional instructions failed to take into account the entire law governing the case. “It seems to us that in contending the supplemental instructions failed to take into account the plaintiffs’ burden of proving negligence and proximate cause, Wood has plainly overlooked the instructions to that effect previously given by [the trial judge].” Wood, 268 Md. at 235 , 300 A.2d 665 . In this case, appellants voiced no complaints over the trial judge’s original instructions on the issue of punitive damages. Considering the charge as a whole, Wood, 268 Md. at 235 , 300 A.2d 665 , we therefore hold that the trial judge did not err in failing to instruct the jury in the manner suggested by appellants. THE CAP ON NONECONOMIC DAMAGES 5 This case arose from a bus accident which took place in New Jersey.

Pursuant to Md.Cts. & Jud.Proc.Code Ann., § 10-504 (1974, 1989 Repl.Vol.), plaintiffs, before trial, filed a Notice of Intent to Rely on Foreign Law. All parties and the trial judge agreed that, pursuant to the conflict of laws principle of lex loci delicti, the substantive tort law governing this case was that of New Jersey. Under the rule of lex loci delicti, the substantive law is determined by the place of wrong (New Jersey), while the procedural law is governed by the law of the forum (Maryland). Jacobs v. Adams, 66 Md.App. 779, 790 , 505 A.2d 930 (1986).

Maryland, unlike the majority of other states, 6 continues to adhere to traditional lex loci delicti analysis in the torts ³⁸ area. Hauch v. Connor, 295 Md. 120, 125 , 453 A.2d 1207 (1983); White v. King, 244 Md. 348, 352-355 , 223 A.2d 763 (1966). In its cross-appeal, Leatherwood contends that the trial judge erred when he failed to apply the $350,000 “cap” ³⁹ on noneconomic damages set forth in Md.Cts. & Jud.Proc. Code Ann. § 11-108 to the jury’s award of $800,000 in noneconomic damages to Mary Martinez.

Furthermore, argues Leatherwood, the loss of consortium award to Mary Martinez and her husband Joe should be consolidated with the $800,000 awarded to Mary Martinez and then reduced pursuant to the cap. The essence of Leatherwood’s claim is that the cap is part of the procedural law of Maryland and thus, under lex loci delicti, the procedural law of the forum should govern. The Martinezes, on the other hand, contend that the cap is substantive in nature and thus application of Maryland substantive law is barred under the rule of lex loci delicti. Because New Jersey has no cap on noneconomic damages similar to § 11-108, the Martinezes argue that they are entitled to recover the full amount of the jury verdict for noneconomic damages.

We will hold that the statutory cap on noneconomic damages is part of the substantive law of Maryland and thus it is inapplicable to this case. Even in those jurisdictions which adhere to the principle of lex loci delicti, an exception is recognized where there is an overriding public policy reason to apply the law of the forum. There is no such overriding public policy reason to apply Maryland law under the circumstances of this case. We explain.

Leatherwood argues, using language from several cases upholding the constitutionality of the cap, that, because the cap does not interfere with a plaintiff’s actual cause of action, it is a “remedy” which should be viewed as part of the procedural law of Maryland. Leatherwood relies heavily on language from Edmonds v. Murphy, 83 Md.App. 133 , 573 A.2d 853 (1990), affd, 325 Md. 342 , 601 A.2d 102 (1992), and Potomac Elec. Power Co. v. Smith, 79 Md.App. 591 , 558 A.2d 768 , cert, denied, 317 Md. 393 , 564 A.2d 407 (1989). In Edmonds, we held: ⁴⁰ “ ‘A remedy is a matter of law, not a matter of fact.

A trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function. Thus, [the cap] does not infringe upon the right to a jury trial because the section does not apply until after a jury has completed its assigned function in the judicial process.’ ” Edmonds, 83 Md.App. at 144-145 , 573 A.2d 853 , quoting Etheridge v. Medical Center Hospitals, 237 Va. 87 , 376 S.E.2d 525, 529 (1989) (emphasis in original). Leatherwood seizes on our use of the term “remedy” to describe the cap to support its argument that the cap is procedural. Leatherwood employs a similar strategy in interpreting language from Smith .

In Smith , we held: “Limitation of the jury’s determination of damages in a statutorily-created cause of action is a proper modification of the remedy available in such actions and does not violate Article 23 of Maryland’s Declaration of Rights.” Smith, 79 Md.App. at 628 , 558 A.2d 768 . Focusing again on the use of the term “remedy,” Leatherwood argues that this usage indicates that the cap is procedural rather than substantive. We disagree with Leatherwood’s analysis, for two reasons. First, as the Martinezes point out, the question is not whether the statute in question is a “remedy,” but whether it is “procedural.” Because a particular law is properly characterized as a remedy or remedial does not mean that it is by definition procedural.

Second, neither Edmonds nor Smith were concerned with the issue now before us— application of the cap statute in conflict of laws situations. Edmonds concerned the constitutionality of the cap statute, while Smith addressed whether the cap applied in wrongful death cases. Leatherwood’s selective use of language from cases addressing issues only tangentially related to those now before us is not persuasive. Furthermore, as the Martinezes point out, the Restatement (First) of Conflict of Laws and cases from other states support the proposition that a statutory limit on damages is ⁴¹ properly characterized as substantive rather than procedural law.

While acknowledging that no Maryland cases have addressed the specific question now before us, the Martinezes argue that the Restatement and other state cases demonstrate that the cap is substantive in nature. We agree. Because Maryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Restatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lex loci delicti questions in Maryland. Section 412 of the First Restatement of Conflict of Laws provides guidance on the question now before us: “The measure of damages for a tort is determined by the place of wrong.” Comment a to § 412 states: “a.

Rationale. The right to damages in compensation or punishment for a tort is to be distinguished from the right of access to the courts and from the procedure provided to obtain the damages. The creation of a right to have damages necessarily involves the measurement of that right in so far as the law can measure it. While the actual finding of the amount of damages is a function of the jury or other fact-finding body at the forum, the law that creates the right determines what items of loss are to be included in the damages.

Since the right is created by the law of the place of wrong, it is measured by that law.” Section 412 has been cited with approval by the Court of Appeals in Steger v. Egyud, 219 Md. 331, 337 , 149 A.2d 762 (1959), which also involved a case litigated in Maryland over a traffic accident which took place in New Jersey. The Court of Appeals held that “New Jersey law applies and controls all matters of substance, including the extent of liability and the right to, and measure of, contribution.” Steger, 219 Md. at 337 , 149 A.2d 762 (emphasis added). ⁴² Furthermore, several other states have adopted this reasoning in applying the rule of lex loci delicti. 7 In Chavarria v. Superior Court of Fresno County, 40 Cal.App.3d 1073 , 115 Cal.Rptr. 549 (1974), the question was whether a California statute providing for double damages in certain labor cases would apply if the case were transferred to Texas. The California Court of Appeals for the Fifth District held that “Texas considers the measure of damages to be a substantive matter controlled by the law of the state where the injury occurred.... A question of damages