Travelers Casualty Insurance Co. of America v. Williams Co. Construction, Inc., 2014 ND 160

Background

In 2008 Williams Co. Construction (Williams) contracted to remodel Dr. Brenda Barfield’s dental office and acted as general contractor, hiring subcontractors including Home Heating (plumbing) and McIntosh (framing).
After completion, a copper pipe in a new vanity room froze and burst in December 2008; a repair revealed cold air infiltration in the plumbing wall. A week after an initial repair the pipe burst again, causing extensive water damage.
Travelers Insurance and Dr. Barfield sued Williams, Home Heating, and McIntosh for negligence (and Barfield also alleged breach of contract against Williams); parties stipulated damages of $220,046.09 and agreed to submit the case to the jury on comparative fault.
The jury allocated fault: Williams 70%, Home Heating 25%, McIntosh 0%, Barfield 5%, and the district court entered judgment against Williams.
Williams moved for a new trial arguing the court erred by refusing (1) an independent-contractor jury instruction (N.D.J.I. C-55.25), (2) an adverse-inference/failure-to-produce-witness instruction (C-80.30), and (3) that the evidence was insufficient to support 70% fault; the district court denied the motion.
The Supreme Court of North Dakota affirmed, holding the instructions given (and the parties’ comparative-fault stipulation) and the evidence supported the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by refusing independent-contractor instruction (C-55.25)	Travelers/Barfield argued comparative-fault submission and instructions were sufficient to allocate fault among parties	Williams argued it should be able to instruct jury that an employer is not generally liable for an independent contractor’s negligence	Court held refusal not reversible: parties stipulated to comparative-fault submission; instructions and evidence allowed jury to allocate fault and did not impute subcontractor negligence to Williams
Whether trial court erred by refusing failure-to-produce-witness instruction (C-80.30)	Williams argued absence of Home Heating plumbers prejudiced its defense and warranted adverse-inference instruction	Plaintiffs argued plumbers were equally accessible and at least one plumber testified; Williams did not subpoena them	Court held refusal proper: plumbers were equally available, Williams did not show they were unavailable, and one plumber testified, so instruction was inapplicable
Whether evidence was insufficient to support 70% fault allocation to Williams	Plaintiffs argued evidence (expert testimony and facts) showed Williams’ oversight failures and prior knowledge of temperature problems, justifying high fault	Williams argued evidence was insufficient and verdict against it was unsupported	Court held verdict was logical and probable given evidence about unsealed exterior wall, Williams’ supervisory role, prior knowledge, and failure to remedy after first break; no abuse of discretion denying new trial
Effect of parties stipulating to comparative-fault trial on available instructions/defenses	Plaintiffs relied on the stipulation to frame the case as percentage-fault allocation among responsible parties	Williams argued stipulation should not preclude independent-contractor defense instruction that would negate vicarious liability	Court held the stipulation made comparative-fault instructions the law of the case; omission of C-55.25 did not prejudice Williams because the jury could still allocate fault to individual parties

Key Cases Cited

Leno v. K & L Homes, Inc., 803 N.W.2d 543 (N.D. 2011) (modified comparative fault does not apply where claim arises solely from contract expectancy damages)
Rogstad v. Dakota Gasification Co., 623 N.W.2d 382 (N.D. 2001) (employer not generally liable for independent contractor’s negligence; Restatement (Second) of Torts § 414 exception when employer retains control)
Cartier v. Nw. Elec., Inc., 777 N.W.2d 866 (N.D. 2010) (standards for when jury instructions are warranted based on evidence)
Amyotte v. Rolette Cnty. Hous. Auth., 658 N.W.2d 324 (N.D. 2003) (party entitled to instruction on a valid theory when there is some supporting evidence)
Gisvold v. Windbreak, Inc., 730 N.W.2d 597 (N.D. 2007) (standard of review for denial of new trial based on insufficient evidence)