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Saakyan v. Modern Auto10/31/2002
CERTIFIED FOR PARTIAL PUBLICATION
INTRODUCTION
In this personal injury lawsuit, we deal with a narrow question concerning statutory offers to compromise under Code of Civil Procedure section 998. The issue arises because this case was tried twice. The first trial resulted in a defense verdict and judgment for defendant, Modern Auto, Inc., which were then set aside by the grant of a motion for new trial. The second trial resulted in a verdict for plaintiffs, Oganes Saakyan and Garnick Paronyan. Following the second trial, the court denied plaintiffs' motions for expert witness fees (§ 998, subd. (d)) and prejudgment interest (Civ. Code, § 3291) on the ground the first verdict extinguished any rights plaintiffs may have acquired by virtue of their section 998 offers.
In the published portion of this opinion, we hold a statutory offer to compromise under section 998 is not extinguished by a judgment that is vacated by a subsequent order for a new trial. Accordingly, we reverse the order taxing costs and remand for reconsideration consistent with this opinion.
In the unpublished portion of this opinion, we hold that there was no jury misconduct in the second trial, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arose after teenagers, Saakyan and Paronyan, along with two others, were involved in a serious accident on the 605 freeway in June 1992.
The evidence adduced at the second trial shows Saakyan, the driver of the 1986 Honda Accord involved in the accident, had the vehicle lowered. Then, he began looking for new rims for his wheels. Attracted to "Aerofin wheels" in an advertisement in Low Rider magazine, Saakyan inquired at Modern Auto about their availability and price.
On June 29, 1992, plaintiffs and two others arrived at Modern Auto only to discover the Aerofins had been sold. At the suggestion of Modern Auto's owner, Saakyan agreed to purchase a new six-spoke, 15-inch wheel and tire made for a BMW vehicle, which wheel was wider than those normally found on a Honda Accord.
After Modern Auto installed the new wheels and tires on Saakyan's Honda, Saakyan and the three other teens rode the vehicle a mile or two to the 605 freeway. Once on the southbound side of the freeway, Saakyan remained in the number four lane. The car drove beautifully. Saakyan had been traveling at about 50 or 55 miles an hour for a mile, when suddenly, the car jerked to the left. Despite Saakyan's attempts to control the vehicle, it drove to the right, off the road. Until the accident, the Honda had been operating just as it had before the wheels and tires were installed at Modern Auto.
Saakyan suffered irreversible injury to the spinal cord, is confined to a wheelchair, and has a shortened work-life expectancy.
Paronyan sustained chest trauma, multiple rib fractures, and a burst fracture of the first lumbar vertebral body. He suffers from chronic pain. He is 35 percent disabled and is capable of semi- sedentary work.
The focus of the case was causation. Both defendant and plaintiffs put on expert testimony addressing this aspect. Defense expert Ernest Klein concluded nothing about the vehicle, as equipped at the time, would have caused the Honda to veer to one side or cause the car to do anything unusual on the smooth surface of the 605 freeway. There being no physical evidence that the car veered to the left, Klein concluded Saakyan had swerved to the right to avoid a vehicle in front of him.
Plaintiff's expert, Gerald Rosenbluth, brought a "buck," -- a section of a car used as a courtroom model -- as demonstrative evidence. Admitte
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