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Hiltner v. Owners Insurance Co.

United States Court of Appeals, Eighth Circuit

August 29, 2017

Amy Hiltner, Plaintiff- Appellee,
v.
Owners Insurance Company, Defendant-Appellant.

          Submitted: March 9, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

          COLLOTON, Circuit Judge.

         Owners Insurance Company appeals a judgment of the district court awarding Amy Hiltner damages for injuries that she sustained in a vehicle-related accident. The insurance company argues that the district court improperly applied a heightened duty to the driver of the vehicle, that the court erred in its apportionment of fault, and that the court abused its discretion in altering its damages award sua sponte. Because we determine that the district court improperly applied a heightened duty to the driver, we reverse and remand for further proceedings.

         In May 2010, Hiltner attended a social gathering at a friend's apartment, where she and others became intoxicated. Around midnight, Hiltner, Samantha Denault, Xaviera Lone Wolf, Josh Jeffries, and three others left the gathering. Denault had agreed to serve as the designated driver, and she was the only sober person among the group when they departed.

         Denault planned to drive the others to Lone Wolf's apartment and then drive home. When the group reached Denault's vehicle, Jeffries and three others got inside, but Hiltner and Lone Wolf climbed onto the trunk with their backs facing the rear window. Denault urged the two to get off the trunk and get into the vehicle, but they twice refused and said they would be "fine." Although she was concerned, Denault proceeded to drive slowly to Lone Wolf's apartment. Observing that Hiltner and Lone Wolf were taking pictures of each other, laughing, and swaying to music, Denault kept her speed at fifteen miles per hour, slowed down for turns, and checked on the two every thirty seconds through the rearview mirror.

         Jeffries was located in the front passenger seat. During the drive, he gestured with his left hand once or twice as if he was going to push down Denault's right leg. Denault was annoyed and told him to stop. The ride went without incident until the final turn toward Lone Wolf's apartment. At that point, Jeffries pushed Denault's right leg down onto the accelerator, causing the vehicle to speed up. Hiltner and Lone Wolf fell off the trunk. Hiltner was injured during the fall and needed physical and occupational therapy to recover.

         After Denault's insurer paid Hiltner its policy limit of $25, 000, Hiltner sought underinsured motorist benefits from Owners as an insured under her father's automobile policy. Owners denied benefits, and Hiltner sued in North Dakota state court. Owners removed the case to federal court, and the case was tried to the court. The district court found Denault, Jeffries, and Hiltner each liable in part for the accident. The court apportioned fault of fifty-five percent to Denault, twenty-five percent to Jeffries, and twenty percent to Hiltner.

         Because Hiltner's relative fault was less than fifty percent, the district court awarded her past economic, future economic, and non-economic damages. See N.D. Cent. Code § 32-03.2-02. In response to Owners' post-trial motions, the court recognized that "[b]oth parties agree that there was no request for future economic damages, " and vacated its award of future economic damages. The court then awarded Hiltner the same amounts, broken down this time into past economic, future non-economic, and past non-economic damages. Owners appeals, challenging the district court's apportionment of fault and the award of damages. We review de novo the district court's interpretation and application of state law. Nolles v. State Comm. for Reorganization of Sch. Dists., 524 F.3d 892, 901 (8th Cir. 2008).

         Owners argues that the district court improperly applied a heightened duty to Denault because she was the sober designated driver. North Dakota does not impose a heightened duty by statute; a person driving a vehicle must operate "in a careful and prudent manner." N.D. Cent. Code § 39-09-01.1. The North Dakota courts have not imposed a heightened duty on designated drivers by common law. Other jurisdictions affirmatively have rejected such a duty, citing the potential that heightened exposure to liability would chill designated drivers from performing a valuable service.

         In Tennessee, for example, a party assumed no affirmative duty merely because of his status as a designated driver to aid or protect an intoxicated passenger who rode unrestrained in the bed of a pickup truck, "exited" the truck, and died on the road. Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 823-24 (Tenn. 2008). The court observed that "[t]o hold a driver liable for the irresponsible actions of an intoxicated passenger would cut against this important social policy of encouraging the use of designated drivers." Id. at 824 (alternation in original) (quoting Stephenson v. Ledbetter, 596 N.E.2d 1369, 1373 (Ind. 1992)). In Vermont, a sober driver of a pickup truck breached no duty of care to an intoxicated passenger who knelt on a toolbox in the bed of a pickup truck, reached his arm into the passenger side of the cab, and died when he fell under the truck. Collins v. Thomas, 938 A.2d 1208, 1213-15 (Vt. 2007). In Louisiana, a sober driver owed no duty to protect an intoxicated passenger who asked to exit the car on the side of a highway before he was struck and killed while walking into traffic. Cardella v. Robinson, 903 So.2d 613, 618 (La. Ct. App. 2005).

         In its order here, the district court acknowledged these authorities and stated:

While intoxication is no excuse for wrongful conduct, when a sober person knows or reasonably should know of the intoxicated condition of a passenger rendering her incapable of exercising vigilance or foresight for her own safety, the sober person, even though she does not have a heightened duty to aid or protect intoxicated passengers, continues to have a duty to exercise reasonable care in driving the vehicle. In other words, by taking charge of obviously ...

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