NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2008 CA 2147
SHANNON HULTBERG AND JORDAN HULTBERG
jW
VERSUS
GENERAL INSURANCE COMPANY OF AMERICA
AND MARGARETTA SPIELMAN
fMQ
On
Appeal
from the 19th Judicial District Court
Parish of East Baton
Rouge Louisiana
Docket No 511 456 Section 24
Honorable R Michael Caldwell
Leonard Cardenas III
Baton
Rouge
Judge Presiding
Attorney for
Plaintiffs Appellants
LA
Shannon and Jordan
Andrew w
Eversberg
Attorneys
Brad M Boudreaux
Guglielmo
Marks
Rouge
and
Margaretta Spielman
LA
BEFORE
PARRO
McCLENDON AND WELCH JJ
Judgment
1f6
J
c
j
c
Appellees
General Insurance Co of America
Terhoeve and Love
Baton
for
Defendants
Schutte
Hultberg
sEd5
1
f
f
U
fA
rendered
JS
t3
o
S
OCT 3 0 2009
J cw
6Yff
PARRO
J
In this
favor
personal injury suit Shannon Hultberg appeals
against the defendants
Company of America
court
seeking
a
judgment in her
Margaretta Spielman and General
an
increase in
damages awarded
Insurance
to her
by the trial
2003
at
We affirm
FACTS AND PROCEDURAL BACKGROUND
This action
Carwash
an
involves
located
Benny s
vehicular collision
a
Perkins Road in Baton
on
automated carwash where the customer chooses
drives to
a
reaches this
designated position
vehicle toward the wash tunnel
vehicle must be
brake
placed
and the driver
s
on
how to
drivers and to hit
a
encounter it to the
s
is
tunnel
When the vehicle
onto a conveyor that
transports the
sign stating and illustrating that the
the driver
s
foot must be removed from the
the
and
proceed
entry
to the wash tunnel
points
The
steering wheel
to a second
A
Benny
s
makes eye contact
sign providing the
guider has the responsibility
to
same
help confused
stop button if a driver fails to heed instructions
The conveyor
which
near
Benny
Louisiana
s
The driver remains inside the vehicle and at the
encounters a
approaching driver
information
guided
Benny
particular wash option and
a
hands must be taken off the
employee guider stands
with the
are
neutral
in
Rouge
in line for the wash
position the wheels
beginning of the conveyor
July 15
on
runs
36 feet from the
point
at which a vehicle s wheels first
point of entering the wash tunnel The conveyor has rollers
keep vehicles separated while entering the wash
If
a
vehicle is
properly
on
the rollers of the conveyor with the transmission in neutral and without the brake
being applied
the vehicle
will
roll
approximately eight inches per second
on
through the wash tunnel
If the brakes
are
at
speed of
a
applied while
a
vehicle is
the conveyor the rollers will go underneath the vehicle and the vehicle will not
move
into the wash tunnel
driver takes his
or
However
if the transmission is left in drive and the
her foot off the brake the vehicle will travel
125 foot wash tunnel
2
rapidly through the
On the
Spielman
day of the accident Shannon Hultberg entered Benny
was
driving the vehicle immediately behind Ms
to
place her vehicle
her hands from the
remove
steering wheel
took her foot off the brake without
to
on
a
entered the wash tunnel the
vehicle had
tunnel
already
injuring
Benny
Ms
s
rear
Spielman became confused and
car
in neutral
Ms
Spielman could
Immediately after
Ms
gUider stopped the carwash
ended Ms
causing the vehicle
Hultberg
Spielman by knocking
to correct Ms
shouting instructions but
situation in time to stop her vehicle
s
not correct the
Spielman
However the
vehicle while both
were
and Ms
Hultberg reached
Hultberg and her husband
Jordan
Company of America
sued
Ms
for Ms
Hultberg
s
Although Ms Spielman
trial counsel for Ms
Spielman and her insurance company advised the
plaintiffs have stipulated that the
a
cause
exclusive of interest and costs
trial
at the
beginning of the
court that
In response
stipulation
sum
of
the
Hultbergs attorney
was
with
regard
to the
controversy
After
Mr
by jury
of action does not exceed the
corrected this statement and stated that the
s
in the wash
general and special
originally requested
Hultberg
Spielman
Spielman and her insurer
and her insurer had
amount in
vehicle
private settlement after the accident
a
damages and Mr Hultberg s loss of consortium damages
50 000
s
Hultberg
Ms
General Insurance
the
sign
higher rate of speed than if the rollers had
transporting it The guider attempted
her window and
to the
take her foot off the brake and
Ms
placing her
proceed toward the wash tunnel at
been
in neutral
As Ms
Hultberg
Spielman drove her vehicle onto the conveyor the guider pointed
giving instructions
Margaretta
s
presentation of the evidence the trial
medical expenses
Hultberg
s
45 000 for her
loss of consortium
court awarded
30 317 for Ms
general damages and
The court stated the
15 000 for
following concerning
liability
1
In their
answer
negligence
of
to the
Benny
s
Hultbergs petition
causing the Hultbergs
Ms
Spielman and her insurer alleged the fault and
supplemental petition naming Benny s as a
to file a
defendant
3
Benny s had the greater duty to protect customers on its premises
I drive by that carwash all the time but Ive only been
from harm
in it once or twice
It is as testified by Ms Spielman somewhat
confusing You do go into a dark tunnel and your car is covered
As I said I think
with soap and you can t see whats going on
Benny s has the greater duty in this case I think Benny s with this
automated car wash has created a risk and has a greater duty to
prevent an injury And I don t think that Benny s did enough in this
case to escape liability
It was the testimony of Ms Spielman that
the very demonstrative actions of the guider caused her to be
confused and perhaps not see the signs that were there So I think
there is certainly liability on the part of Benny s
After
noting that Ms Spielman also had
assessed 75
fault to
Benny
s
fault to Ms
and 25
At the conclusion of the court
to bear some of the
s
oral
of
50 000
was
responded that
the
no
Spielman
reasons
attorney asked the court to clarify whether the
for
amount in
in
excess
of
Spielman
s
controversy stipulation
Hultberg
Ms
reduction should be made until there
was
Ms
judgment
starting point for fault allocation
determine whether the total award
the court
liability
was a
s
final
counsel
figure
to
Both counsel then
50 000
informally discussed with the court whether the allocation of fault should be made
on
the total award
with
exceeded that amount
a
further reduction to
50 000
only if the final award
whether the allocation of fault should
or
at
begin
The court indicated this decision would be made in connection with the
On
was
the
August 5 2008 the
to which
starting point
Spielman
was
court
responsible for 25
ordered to pay Ms
Hultberg
signed
a
judgment
judgment reflecting that
the fault allocation
of that amount
12 500 in total
50 000
was
50 000
Since Ms
applied
she and her insurer
damages plus legal
were
interest from the
date of judicial demand
Hultberg appealed
Ms
contends
were
fault to Ms
reversible
Spielman
error
2
45 000 in
into evidence
the medical
and
5
1
allocating
75
fault to
Benny
4
general damages to Ms Hultberg
examination report of defendant
reducing the plaintiff s damages
4
twice
s
error
that
and
only
s
improperly taking judicial notice of facts
awarding only
Joseph
asserting five assignments of
in
she
25
dispute
refusing
expert
3
to admit
Dr
Allen
by first reducing
the
to the
damages
amount in
stipulated
reducing the damages
in
controversy of
50 000
and then further
2
proportion to the allocation of fault
ALLOCATION OF FAULT
The trier of fact is owed
finding of percentages of fault is
S
Ry Co
00 0066
992
s
U
121
La
S Ct
149
allocation of fault is
subject
of review
v
882
La
Stobart
to the
State
an
11
29 06
the trier of fact s
lowest
or
discretion
In
L Ed 2d
508
manifestly
cert
680 81
2001
Thus
erroneous or
Kansas
City
532
trier of fact s
clearly wrong standard
exact science
an
v
dismissed
a
through Dept of Transp and Dev
clearly wrong
946 So 2d 144 166
Foley
v
or
617 SO 2d 880
the search for
one
Entergy Louisiana Inc 06
Only after making
apportionment of fault is clearly wrong
disturb the award
highest
773 SO 2d 670
Duncan
acceptable range and any allocation by the fact finder
within that range cannot be
La
factual determination
Allocation of fault is not
1993
precise ratio but rather
0983
a
10 30 00
1651
deference in allocation of fault since the
some
and then
only
to the extent of
determination that
a
can an
lowering it
or
appellate
raising it
court
to the
point respectively which is reasonably within the trial court s
Clement
Frey 95 1119 La 1 16 96
v
666 So 2d 607 609 611
determining the percentages of fault the trier of fact should consider
both the nature of the conduct of each
relation between the conduct and the
party
at fault and the extent of the causal
damages claimed
In
assessing the
nature
of the conduct of the
parties various factors may influence the degree of fault
assigned
1
involved
conduct
including
an awareness
3
the
whether
of the
the conduct resulted
2
danger
significance of what
how
was
capacities of the actor whether superior
or
circumstances which
might require the
thought
State Farm Fire and Cas
2
Mr
Watson
Hultberg
did not
v
appeal
the
damages
a
risk
inadvertence
was
created
sought by the conduct
inferior
actor to
proceed
Ins
awarded to him
5
great
from
Co
and
5
in haste
any
or
by the
4
the
extenuating
without proper
469 So 2d 967
974
La
1985
These
guide the appellate
factors
same
respective fault allocations See Clement 666 So 2d
After
reviewing the record
the allocation of
only 25
we
tunnel
Spielman
Benny
correctly
It
evaluation
of the
at 611
conclude that there
fault to Ms
customers entered the wash
court s
was no
s
was
had
a
aware
manifest
the wash tunnel
confused
Benny s
by the unusual
deposition testimony
make
machinery
also well
was
the
or
aware
movement caused
Benny
s
ensure its
that
a
if
in neutral
testimony
We
it is
automatically make
preceding vehicle
it
her
was
the
correctly
car
in
to
She stated that when
pedal depressed
is in neutral
apparent that the guider had the duty
In
responsibility
to take their foot off the brake or
sure
proceed
by the conveyor procedure
customer goes toward the wash tunnel with the brake
stop the whole thing and tell them
vehicle
that customers could become
guider acknowledged
driver entered the wash tunnel
sure a
of any
rear
in
duty to
entered the wash tunnel with the transmission in drive that vehicle would
unchecked and could strike the
error
to ensure that
w e
put their
though
a
car
From this
a
driver had
complied with all instructions before entering the wash tunnel Also if something
were
wrong the
Ms
guider had the duty and the ability to stop the mechanism
Spielman testified that she
clear her confusion
was
She said that while she had her foot
waiting for instructions the guider hit the
her foot off her brake
her
car in
neutral
or
Ms
made
take her foot off the brake
length within which
see
what
was
car
on
sure
that her
car was
both duties of the
to correct her situation
in front of her
Ms
guider did
not
help
the brake and
was
window and hollered at her to take
Spielman testified that the guider
act in haste and became flustered
not
confused and the
never
told her to
in neutral before
guider
With
a
put
telling her
to
limited conveyor
Spielman obviously felt she had
Once she entered the wash tunnel
because of the soap and water
to
she could
on
her
car
increasing her confusion
Ms
The accident occurred because
wash tunnel
incorrectly
Benny s had
Spielman
was
allowed to enter the
greater appreciation of the risk and the
a
6
best
to
opportunity
Watson factors
Spielman
we
in this case
prevent the incident that occurred
do not find the trial court
s
allocation of
Applying the
only 25
fault to Ms
clearly wrong
was
JUDICIAL NOTICE
Judicial
forming part of the
and
the
common
intelligence and
judge
231 SO 2d 692 695
State
1st Cir
App
judicial notice of
Through Dept
in his
experience
conclusion
Benny
guider
See LSA C E art
s
automated carwash
was
to assist with
present
that occurred in this
confusing
to her
Ms
case
Highways
v
Thurman
We
was
when he said
error
somewhat
not in evidence in
confusing
reaching his
Witnesses for both
disagree
on
her behalf stated that
the
nature of the process was
Therefore
we
find
no
already
merit in this
an
entering the wash tunnel
can
car
While
experience the confusing
in evidence from witnesses for both
assignment of
as
Additionally
on
comment may have reflected his own
judge s
The
Spielman described the wash tunnel experience
confusing especially since it is dark and soap is covering the vehicle
the trial
parties
exactly the type of pre entry conveyor confusion
because of the soap and water
expert witness testifying
be
201
merely within
possible and actual confusion during the carwash process
as to
as
1970
thereby taking judicial notice of adjudicative facts
testified
of
fact
a
Hultberg argues that the trial judge committed legal
Ms
that
may not take
knowledge
La
only of facts which may be regarded
knowledge of every person of ordinary understanding
a court
individual
s
be taken
notice may
parties
error
ADMISSIBILITY OF EXPERT REPORT
the trial court is
Generally
rulings and
its determinations will not be disturbed on
of that discretion
732 742
Allen
granted broad discretion
Ms
Joseph
Smith
v
Smith
Hultberg sought
a
04 2168
to introduce
La
a
App
7
its
appeal absent
1st Cir
a
9 28 05
evidentiary
clear abuse
923 So 2d
medical examination report from Dr
specialist hired by the defendants
The trial court refused to admit the report
on
to review her medical condition
concluding
it was
hearsay and that
none
hearsay exceptions applied
of the
Hultberg proffered the report for this
According
Louisiana
to
statement other than
trial
Article 802 states that
the Code of Evidence
1st Cir
9 27 02
hearsay
or
other
of
Evidence
article
801
to prove the truth
is not admissible
828 SO 2d 1212
1217
n
7
as
otherwise
Ostrowe
v
at the
a
present
of the matter asserted
except
Turner
legislation
is
hearsay
by the declarant while testifying
hearing offered in evidence
or
Ms
court s consideration
Code
made
one
to allow its admission into evidence
writ denied
provided by
01 1935
02 2940
La
App
2 7 03
La
836 SO 2d 107
In this case Ms
the extent of her
was
thus
an out
asserted
injuries and
of court
However
authorized
Hultberg sought to introduce
Ms
admission
made
the
by
a
under
LSA C E
a
art 801 0
not a
c
in that
personal
Clearly Or Joseph is
or
party
2
his
own
conclusions
Joseph
s
they
are
Article 801 0
a
His
2
provides
own
that
a
c
statement is not
by
a
or
to make
made
it
was
person authorized
an
offered
b
was
a
belief and
or
statement
concerning
a
was
c
2
indicates that these
a
by the parties themselves
was
the
Hultberg
s
injuries
by
subject
8
they obviously did
or a
if it is offered
not
against
a
adoption
a
or
use
it
party and is
belief in its truth
statement
As
adopt
representative capacity
him to make
agent
independent medical expert
an
Ms
hearsay
statement in either his individual
A statement
because
since the defendants decided not to
b A statement of which he has manifested his
the
hearsay but
there any indication that he
in furtherance of their case
report
report
3
concerning
subparagraph b of Article 801 0 2
not
was
2
to Article 801 0
nor is
to prove
The
by their representative
representative of the defendants rather than
reaching
3
made
by the defendants
However official comment
are
801 0
they had manifested their adoption
subject See LSA C E
report
s
in court to prove the truth of the matter
art
was
Joseph
to the accident
Hultberg contends the report
person authorized
statements
causally link them
writing offered
against the defendants and
statement in which
to
Dr
or
concerning
to
Or
or
Finally
indicate any belief in its truth
Joseph apparently
Ms
concerning
them to make
could have
medical
was
hired
Hultberg
s
medical
a statement to
condition
anyone else
In briefs to this court
on
we
not
as non
was
her behalf
on
to them
opinion
not authorized
concerning the subject
neither
Ms
by
Hultberg
if she believed his
party included any Louisiana jurisprudence
whose behalf the report
non
hearsay when introduced
prepared when that expert has
was
testify and has not been deposed
conclude that under these circumstances
the above
an
Dr
although
c
case
not been shown to be unavailable to
err in
clearly
expert s report is admissible
an
against the party
did not
he
subpoenaed the doctor to testify
concluding that
subparagraph
by the defendants to express
opinion would support her
qualify
to
as
hearsay under LSA C E art 801
0
an
2
Based
on
expert s report does
Therefore
the court
excluding this document
GENERAL DAMAGES
The role of
appellate court in reviewing general damages
an
decide what it considers to be
exercise of discretion
10 18 00
appropriate award but rather to review the
an
by the trier of fact
774 So 2d 70
The initial
74
is not to
Wainwright
inquiry
v
Fontenot 00 0492
is whether the award for the
particular injuries and their effects under the particular circumstances
particular injured person is
fact
Youn
a
clear abuse of the
Maritime Overseas
v
denied
510 U S
persons
frequently disagree about the
case
It is
1114
114 S Ct
1059
only when the award
reasonable trier of fact could
assess
is
127
measure
L Ed 2d
of
1260
379
La
1994
general damages
in either direction
for the effects of the
on
1993
In this
or
case
decrease the award
Ms
30 317 for medical
Hultberg
expenses
was
cert
Reasonable
in a
particular
beyond that which
particular injury
particular plaintiff under the particular circumstances that the appellate
should increase
the
of the trier of
much discretion
623 So 2d 1257
Corp
La
a
to the
court
Id at 1261
awarded
the total
9
45 000 in
of which
was
general damages and
reduced based
on
a
stipulation
award
After
careful review of the record
a
reasonable and not
was
accident involved
minor
a
an
abuse of discretion
impact No injury
investigated the accident The last time
for her
injuries
was in
October 2005
within the range of what
a
was
Ms
The
find that the trial court
we
s
The record shows that this
reported
Hultberg
to the
saw a
police officer who
health
provider
care
general damage award of 45 000
reasonable trier of fact could
assess as
was
damages
STIPULATION
Whether the trial court
stipulation concerning the
review of
decision
La
a
App
12 13 96
legally
is
controversy
simply
a
decision
correct or incorrect
1st Or 9 27 96
680 SO 2d
1358
50 000
the
At the end of the trial
the difference between
not have used
amount in
Therefore
stipulation
50 000
as a
50 000
exceeded
under the facts of this
Spielman
the trial court in
v
1210 the
Appellate
whether the lower court
Allstate Ins
Co
writ denied
s
96 0159
96 2586
La
the trial court used this amount
on
the allocation of fault
legal reversible
error
cause
in
as
not
the
Ms
Hultberg
to
recognize
failing
of action
Hultberg contends that the trial
with
regard
court should
after
Thus
applying the allocation of fault
the
cause
initial
of action
to the total
question is whether there is
and the
amount in
a
controversy
case
cites several cases which
determining the final
Winn Dixie of La
95 0435
parties stipulated that the
court found the
controversy did
starting point rather the award should only have
distinction between the terms
Stevens
question of law
amount in
controversy and
Ms
been reduced if the final award
Ms
v
1360
parties stipulated that the
argues that the trial court committed
award
a
as to
Cangelosi
starting point and then reduced it based
to this
is
to the
692 So 2d 375
In this case
exceed
amount in
question of law
was
correctly applied the allocation of fault
plaintiff was 50
support the method employed by
amount awarded to Ms
La
App
1st Or 11
amount of the case
9 95
was
at fault and the defendant
10
was
Hultberg
In
664 SO 2d 1207
20 000
50
The trial
at fault and
awarded the
plaintiff 30 000 which
reduced
was
by her percentage of fault On
appeal the
First Circuit found that the trial court erred in
damages in
excess
that
20 000
that
stipulated
of
at 1213
Id
amount
The Louisiana
Supreme Court in Bullock
cited with
amount in
This
controversy
96 0711
in Stevens
cause
amount in
00 0424
La
controversy and
was
a
50 000
as
value of the
plaintiffs
cause
jury trial
The
cause
In Bullock
of action
cause
petitioner
as
s
amount in
language
but
or occurrence
jury trial
found
in
not on the amount of
against the defendant
to a
were
court in
of action
in a suit if no individual
intended to focus
right
the
773 So 2d 702 707
out of the transaction
before the court at the time the
In the
20 000
The court concluded that the
was
of action
The supreme court further noted
the
is not synonymous with the term
amended in 1989
plaintiffs overall claim arising
In Bullock
abrogated by the supreme
11 28 00
Benoit 773 So 2d at 707
Article 1732
are
prohibiting
of action exceeds
controversy
the
1732
art
on
11 1 96
La
did not exceed
In Benoit the supreme court stated that the term
in LSA C C P
based
stipulation is made the award should first
a
part of the opinion
Allstate Ins Co
v
parties had stipulated
stipulation and then fault should be allocated
court found that the terms
Benoit
Graham
v
approval the method used
supreme court determined that when
be reduced to the
s
4
plaintiff alleged that the
synonymous
Because the
the maximum award fault should have been allocated
was
681 So 2d 1248
20 000
assessing the plaintiff
is
or
on
the
defendants who
litigated
Id
at 708
follows
frequently occurring tort case where a tort
against two defendants whose concurrent conduct
gave rise to one cause of action for damages and one of the
defendants settles prior to trial the amount of the plaintiffs cause of
action for damages against the remaining defendant remains the
same because the remaining defendant may be found by the trier of
victim
4
s
A similar calculation
So 2d 766
more
suit is
was
performed
777 writ denied
their claims did not exceed
damages
the
judgment
to the defendant
17 500
There
was no
was
App 1st Or 3 29 06 934
plaintiffs had stipulated that
the
court
found
Although
they were entitled to greater
limited to 50 000 and the percentage of fault allocated
that amount
Therefore each plaintiff was awarded
Hussey
v
Russell 04 2377
La 6 14 06
50 000 each
in their favor
35
in
06 0962
was
applied
to
discussion of the distinction between
controversy
11
La
where two of the
cause
of action
and
amount in
fact to be
one
hundred percent at fault
Benoit 773 So 2d at 709
In this case
plaintiffs stipulated that their
50 000
thus
corrected that
50 000
cause
eliminating the right
stipulation
to a
to state that the
Since the defendants had
plaintiffs agreed
exceed
50 000 that the defendants
reduction of the
to a
jury trial
In open court
amount in
stipulation that the
right
to a
a
trial
amount in
jury trial
out of the
plaintiffs overall claim arising
amount of her
a
cause
of action for
controversy
to one cause
Therefore
of action
to calculate the
total award to the
at 708
in open court did not
in this case since there were
rise
Later in
stipulated
sum
not exceed
it was
by jury
occurrence
not
This
precluded
at issue
was
in order to reduce the
We believe that the
use
amount
of the term
change the effect of the stipulation
multiple defendants whose
for
only
controversy did
was
of
plaintiffs
damages below the minimum threshold
jury trial See Benoit 773 So 2d
amount in
the
controversy did
voluntary remission by the plaintiff of part of her claim
for
jury trial
of action did not exceed the
initially requested
after the
a
a
parte motion for cancellation of the jury bond the defendants stated that
an ex
the
originally the defendants had requested
See
damages
concurrent conduct gave
Benoit
773 SO 2d
at
709
appropriate award the judge correctly reduced the
amount and then allocated fault
We find no error in
this determination of the proper award
CONCLUSION
For the
are
foregoing
assessed to Shannon
reasons
we
affirm the
Hultberg
AFFIRMED
12
judgment All
costs of this
appeal
NUMBER 2008 CA 2147
SHANNON HULTBERG AND
JORDAN HULTBERG
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
GENERAL INSURANCE
COMPANY OF AMERICA
STATE OF LOUISIANA
AND MARGARETTA SPIELMAN
JfW@
concurring in part and dissenting in part
Welch J
I agree with the
and the
opinion
on
general damage award
percentage reduction for Benny
have
applied the 75
However
s
50 000
court
Triche
App 1st Cir 12 20 96
v
as
well
the fault allocation
as
disagree with the calculation of the
I
comparative fault
I believe the trial court should
Benny s to the total amount of damages
stipulation
stipulation has the effect of
parties and the
evidentiary issues
reduction for the fault of
awarded rather than to the
A
the
a
judicial admission
Allstate Insurance
686 So 2d 127
confession
which binds all
Company 96 0575 pp 6
As such
131
or
a
7
La
stipulation constitutes the law
between the
parties and is interpreted according to the intent of the parties to the
agreement
See Triche
Allstate Insurance
96 0575 at p
7
686 So 2d at 131
Company 97 0582 pp
12 13
La
App
see
Robling
also
1st Cir 4 8 98
v
711
So 2d 780 787
The
only question the trial court
appropriate calculation reduction
Ms
Hultberg
s
from the total
was
was
called upon to decide in determining the
whether the
parties intended that the reduction of
damages because of the negligence of another tortfeasor would be made
damages
awarded
or
from
50 000
This
question
by looking at all of the circumstances under which the stipulation
Ms
At the
plaintiffs stipulated that the
Hultberg
counsel
Hultberg
s
made
was
Ms
Spielman
beginning of the trial the only defendant sued apprised the
court that
stipulation
was
only be answered
Hultberg settled with Benny s before filing this lawsuit against
and her insurer
s
can
cause
of action
did not exceed
50 000
Ms
immediately corrected this statement by advising the court that the
only with respect to the
attorney clarified the stipulation to
amount in
ensure
controversy
that it referred
Obviously Ms
only to the value of
her claim
against Ms Spielman and her insurer the only defendants
tortfeasors
conclude that
a
were
intended and
Ms
Hultberg
s
her
damages
claim
further
It would be unreasonable to
30 000 in medical expenses alone
against all parties responsible for her injuries
case
I
can
was
agreed
less than
only conclude that the parties
agreed that the stipulation would apply only to the value of
was
bound
to the total value of
by this stipulation and should have calculated the
percentage of fault attributable to Benny s from Ms Hultberg
rather than
sum
over
litigation
against Ms Spielman and her insurer and not
The court
reduction for the
that
in the
Under the circumstances of this
understood
award
involved
plaintiff who incurred
that the value of her claim
50 000
after her
Benny s and not to the total value of her claim for damages regardless
settlement with
of which
at trial
reducing Ms Hultberg
s
total award to
50 000 and then
by the percentage of fault attributable to Benny s
appropriate general damage award
2
total
reducing
Therefore
respectfully dissent from that portion of the opinion upholding the trial
calculation of the
s
I
court s