Ross v. Coleman Co., Inc.

1988, rеquires I together otherwise. would so decide with a MANDATE — Court, Supreme the instant case since it crime U.S. involves a of United States -, 917, 2815, child abuse where victim was four 100 L.Ed.2d va- S.Ct. crime, years cating at the of alleged judgment old time of this Court re- years prelim- manding and five old time of the the case for further consideration hearing. inary point light At I of Opinion this would ven- of Satterwhite v. _U.S. Texas, _, age ture no view as to what S.Ct. a child abuse victim will witness will or not fall within L.Ed.2d 284 such an I announced rule. would leave NOW, THEREFORE, IT IS HEREBY such determination to be fleshed out ORDERED, pursuant that to the Mandate future decisions of our In the in- Court. of Supreme United States Court competing stant case the presented interest Remittitur heretofore issued the Court was the magistrate conclusion that October, be, day on the 20th of and it testimony of the victim in the defend- is, hereby hereby VACATED and the Court presence might ant’s result in further harm jurisdiction appeal. reasserts of this witness, might prevent the court ORDERED, IT IS FURTHER that obtaining from I testimony. reliable appeal will be reheard reconsidered procedure further note that used light Opinion above-described instant case a afforded defense counsel full v. Satterwhite Texas. opportunity witness, to cross-examine the ORDERED, IT Ap- IS FURTHER and that the audio visual connection afford- pellant (28) twenty-eight days shall have ed the opportunity defendant the to confer from Supple- the date of this Order file a lawyer during testimony Brief, Appellant’s Respondent mental Hence, witness. would hold that the twenty-one shall days have from the use of proce- closed-circuit television aas filing Appellant’s Supplemental date of testimony dure to elicit victim a child Supplemental Brief to Respondent’s file presence outside the defendant is not Appellant Brief and that shall have four- per right se violative a defendant’s (14) days teen filing after the date of confrontation. Respondent’s Supplemental to file Brief any Supplemental Reply Brief.

BAKES, J., concurs. ORDERED,

IT IS FURTHER filing parties ap- of Briefs of the this peal reargument. will be scheduled for P.2d Idaho, Plaintiff-Respondent, STATE of LANKFORD,

Bryan Stuart ROSS, Plaintiff-Respondent, Michael Defendant-Appellant. Ref. No. 88S-93. COMPANY, INC.; COLEMAN No. 15760. Corporation, Catamaran Supreme Court Idaho. corporation, Defendants-Appellants.

June 1988. No. 16295.

Supreme Court of Idaho. July 1988. This having Opinion Court issued its Rehearing Aug. 28, Denied appeal 29,1987, on July 710; 747 P.2d and PETITION FOR WRIT

OF CERTIORARI to the United States Su-

preme granted having Court been June Boise, Lynch,

Imhoff & for defendants- Lynch argued. appellants. B. James Roark, plaintiff-re- Hailey, R. Keith spondent.

BAKES, Justice. (Cole- defendants, Inc. man), (Coast), Corp. and Coast Catamaran appeal from court’s award of a the district judgment spite Michael Ross of a of the defendants. verdict favor 22, 1984, Ross respondent On June sailing a Katherine Sateren were Hobie Cat sailboat, built Coast and jury. marketed The district court did make Coleman, Magic Reservoir in Blaine requested such special “factual” findings, Idaho, County, when the mast of Ross’s concluding that the of both de- low-slung sailboat contacted a Idaho Power “aggregated,” i.e., fendants should be Company transmission line which crossed subsidiary corpora- an inlet on the reservoir. Sateren was tion, Coast, imputed par- should outright, killed and Ross was seriously in- Coleman, corporation, thereby creating ent jured. Ross filed actions tort Ida- negligence, a situation where Coleman’s 5% Power; Coast, ho the manufacturer of the “aggregated” by negligence, Coast’s 10% sailboat; Coleman, parent corporation greater than that of Ross. Ross was Coast; X, I through alleging Does thereby granted judgment by the district negligence proximate that their was the Coleman, against court computed at 15% cause of the accident. Before trial Idaho $2,662,376.00 the injuries amount of the Power Only settled with Ross. Coast and which the that he had found incurred. proceeded Coleman to trial. The trial last- $399,356.40. judgment The totaled ed one month. Ross additionally moved for an award of jury’s The special specifically verdict attorney against the fees defendants based found that the Hobie Cat was not defective- upon by statements made the defendants’ manufactured, ly designed or and was not attorney closing in his statement. The dis- unreasonably dangerous. The also granted trict court the motion and awarded found in favor of the defendants on the $100,000 attorney Ross in fees in and ex- punitive damages. issue of The fur- $17,000 against cess of in costs analyzed conflicting ther the evidence and alleged for the misconduct of their defense Company found that Idaho Power was 75% counsel,1 12-121, relying on I.C. I.R.C.P. § negligent, plaintiff that Michael Ross was 54(d) 54(e), and I.C. 7-601. and § negligent, that defendant Coast was 10% negligent designing sailboat, the 10% Ross also for a new trial moved under and that negli- defendant Coleman was 59(a). Among 5% I.R.C.P. the reasons stated gent. negligence, Because Ross’s as found alleged the Ross’s motion were miscon- jury, equal greater the to or than closing duct in defendants’ statement and negligence, either of the defendants’ he damages the claim that the awarded the against was not entitled to recover either The inadequate. district court compara- Coast or Coleman under Idaho’s motion, grant did not but rather stated statute, negligence tive I.C. 6-801. § paid thе full unless the defendants judgment amount of the entered verdict, After the its returned Ross court, fees, attorney plus costs and as or- request- filed One several motions. motion dered, days, plaintiff ed, 49(a), within 28 under that the I.R:C.P. district given option choose a new trial on findings court make additional in his favor liability only.2 the issue of The defendants judgment and to enter in his favor parts special appealed paying order without selected of the verdict entered order, alleged days date of 1. The consisted of the de- in 28 from the this court’s misconduct closing argu- in his plaintiff granted right fense counsel's reference is a new trial on Company ment to the fact that Idaho Power had liability only to be filed issue of within 5 pur- settled the case with Ross. The reference portedly 28-day days period. after the initial In the' limine order issued violated an in plaintiff not so event the does elect within the prior approximately one the trial court month 5-day period judgment shall become final. III, is to trial. That issue discussed Part pay In the event the elect to not defendants infra, judgment period, plaintiff that time within trial, pay elects a new the defendants shall 2. The order reads as follows: district court’s further, stated, justifiable all as a reasons and plaintiff "The court further finds that the cost, attorney’s penalty, all sanction and trial, therefore, right fair denied the to a hereby paid fees and awarded to be costs judgment of the unless the full amount en- following expiration days herein, within 15 attorney’s plus tered costs and fees as ordered, paid 28-day period.” plaintiff initial the court with- within 28-day period. plaintiff’s The negligence did evidence of against elect to take a new trial. primarily defendant Coast was negligently designed that Coast the Hobie appeal, appellants On have raised Cat sailboat with a mast and substan- (1) two issues: that the district court erred portion being primari- tial made boat in aggregating negligence, i.e., by im- ly electricity of metal which conducted puting adding negligence of 10% injure which could those on board. The negligence Coleman, Coast to the 5% major thrust claim thereby increasing Coleman’s Coleman, defendant Coleman was af- 15%, greater than which was that of Mi- acquiring controlling ter stock interest negligence, chael Ross’s thus re- effect became aware versing verdict; special boat, defects in the nevertheless marketed in awarding the district court erred necessary the boat did not take the attorney fees and costs under I.C. Coast, steps compel subsidiary, 12-121, 54(d) (e) I.R.C.P. § and I.C. redesign the boat. 7-601. We conclude that the district major overruling jury’s verdict, erred in thrust of the defendants Coast and Coleman’s to show imputing Coleman, Coast’s evidence was primary and accordingly cause of the accident was the we reverse. also con- We negligence elevating clude in not that the district court Idaho Power erred in award- lines, ing low-hanging attorney power fees and and also the costs. who, knowing Ross electricity, that the mast would conduct attempted nevertheless his to sail boat un- THE TRIAL AND JURY VERDICT the low-hanging power der lines at a time complaint Ross’s Coast and Cole- impaired when his faculties were from man alleged that the defendants “careless- drinking jury, hearing after alcohol.. ly negligently designed, constructed, and evidence, conflicting all of the resolved the manufactured, tested, certified, sold and defendants, conflicts of the favor re- delivered a certain boat known as a ‘Hobie turning a verdict found that the which Ho- ...,” Cat 16’ which was involved in the defectively designed; bie Cat was not accident. rejected plaintiff’s punitive claim to dam- knowledge of ... had “That defendants ages; and held Ross’s design and negligent defective and Coleman’s, greater than equal and Hobie Cat boat of the manufacture Coast’s, precluding thus Ross obtain- re- various notices by virtue mast ing any judgment against either Coast or concerning defendants ceived these Coleman. accidents____Said consisted defect prior mast design boat and of the improper matter, As a preliminary we must with a known upon contact such jury’s findings consider whether the wit, wires of electrical danger, to supported by competent substantial evi boat electricity enter the sort, are, dence. If they then both the trial injury those grave or death to and cause court and this Court are bound having full That defendants Quick on board. jury’s Crane, verdict. Idaho boat, of the knowledge condition (1986); 727 P.2d 1187 Dinneen v. failed the condition to correct Finch, failed 100 Idaho dangers to warnings of the supply When reviewing jury a verdict the evidence boat, wholly disregarding users of adduced at trial must be construed others, harm to of serious the likelihood light party pre most to the favorable who in the resulted proximately which all of vailed in the jury’s verdict. Nelson v. Kristin Sa- Katherine electrocution 185, 188, Northern 104 Idaho Leasing boat, teren, passenger on (1983) (“Here 657 P.2d the evi injuries Michael grave serious dence viewed from the most favorable described.” herein Ross as standpoint in support jury’s verdict held neg- deactivated, can be to demonstrate power substantial in the causing linе thus ligence part Nelsons.”); on the injuries. his own Gonzales, Mann v. 605 P.2d The evidence further demonstrated (1980). Viewing most evidence fa- at the time of the accident Coast was a verdict, vorably support the wholly subsidiary owned of Coleman. record that in demonstrates June bought the Coleman had stock of Coast in sailboat, Ross caused his Hobie Cat 16 designed 1976. The Hobie Cat had been designed which was manufactured in 1968 and had been manufactured contin- Coast, defendant to make with a contact Coast, since ually many years that time power operated line owned and by Idaho prior to acquiring Coleman’s Coast’s stock. Company, ap- Power which was located acquiring After Coast’s stock in both water, proximately 26 feet above the 14 companies danger became aware of the feet below Power’s 40-foot standard contacting the Hobie Cat 16 sailboat electri- power crossing lines bodies of water in power actively cal lines. had at- sailing operate. boats Idaho Power tempted dangers presented by to solve the line, knew of substandard but took no contact between the Hobie Cat 16's 26-foot remedy action the defect. power Warning aluminum mast and lines. There was evidence that Michael Ross owners, had notices been sent and warn- previously had sailed into the over cove ing advising labels sailors of extreme power located, which the lines were that he presented by power hazard the overhead existence, prior knowledge had their Ross lines attached mast. had had drinking. that he been A fisherman installed new 26-foot mast on boat who observed the boat into the cove sail just hours At before accident. stopped testified that the had for sev- boat time, warning he had the labels removed spotted eral minutes before he smoke from being from the mast. Research was con- the accident. Further evidence indicated by attaching ducted Coast into a non-con- partially de-rigged that the boat had been ducting “comp tip” upper of portions (sails down) had been taken and there was mast. the expert testimony position that from the of conflicting Although other evi- there was position body Sateren’s and the of burn dence, foregoing the was com- substantial boát, on of marks the that neither the petent support jury’s ver- evidence to the trampoline upon had been the victims on (1) negligence dict that Idaho Power’s 75% strung which the crew rides that be- accident, the of and primary was cause the the of tween two hulls thе Hobie Cat 16. negligence Michael was at that Ross’s Furthermore, expert testimony was equal greater least to or than that either presented jury which could reason- jury’s findings The in or Coleman. Coast ably have inferred that one or of the both special by supported verdict are sub- the passengers attempting and debarked were evidence, competent they stantial and thus push the away power boat from the lines Quick Crane, supra; are v. unassailable. Thus, when the accident occurred.3 Co., supra. Leasing v. Northern Nelson jury reasonably have could concluded expressly In Instruction No. the court even after Ross became aware that jury consequences of the entangled power had instructed mast become lines, finding equal great- knowingly negligently negligence he and at- Ross’s Coleman, pro- having tempted remove it without er than of Coast away gust produced intend- from the when a of wind 3. At trial defendants evidence wires theory phase resulting demonstrate boat pushed ed to their that the the boat into line stopped telephone wires and the neutral extreme shock caused her electrical line, line, just power phase short the active injuries. This was death Ross’s evidence de-rigged Ross had the boat before and that expert regarding part testimony based phase was made between the line contact power rigged circuit how line with the neutral line which caused the electrical designed to shut line breakers were boat; shock; got that Ross and Sateren off the foreign object when the line. down contacted attempting push boat that Sateren was Special Seppi Betty, in our decision in In Section Two of the Verdict vided jury The dealing proximate 579 P.2d expressly by finding cause, asked, told Ross individual negligent, negligent, 10% interrogatories, separately 10% to evaluate negligent, Ross would recover Power, 5% plain- conduct of each actor—Idaho nothing from either Coast or Coleman. Ross, Coast, tiff defendant and defendant Thus, knowing consequences Coleman—to determine which if rendered, they verdict which must individually guilty those actors were concluded, lay from “their have own sense proximate which was a cause of justice,” that the defendants should not jury separately the accident. The found pay plaintiff’s injuries. have to negligent.4 each actor Seppi Betty, 99 Idaho at 579 P.2d at asked, Questions was then to evaluate the business relation- Form, giv- Special Verdict which was ship of defendants Coast and Coleman jury, required en to the to make jointly jointly, to determine if findings regarding several the various separately, negligent. Ques- rather than claims of the and the de- several part special tion No. which was fenses raised the defendants. Section 1 plaintiff,5 verdict form submitted Special (Questions Form Verdict was answered as follows: through 4) dealt with the claim “Question Do No. IS: find that liability strict jury, tort. The in re- Corporation Coast Catamaran and Cole- Question sponse to No. determined that Inc., Company, under man these instruc- “defectively the Hobie Cat 16 was not de- tions, equally at fault reason of signed unreasonably dangerous per- relationship their business which was a property,” eliminating son or plain- thus proximate injuries cause to Mi- tiff’s claim based on strict in tort. chael Ross? Special another section of the Verdict ” Yes_ Answer: No against plaintiff ruled Ross’s claim then, that the The court defendants’ conduct was such as the next section of the punitive Verdict, damages, Special by Question to warrant thus eliminat- No. told ing punitive damages jury from the case. assign percent- were to "[Special SECTION TWO Verdict] your "Question Question No. 10: If answer to “Question No. 5: Was the Michael Plaintiff Ross "yes,” negligence No. 9 was was the of Coleman negligent? Inc., Company, proximate a cause of the acci- No_ Answer: Yes 12 dent? No_ Answer: Yes 12 "Question Question No. 6: If the answer to No. "yes”, negligence 5 was was the of Michael Ross “Question Compa- No. 11: Was the Idaho Power proximate cause of the accident? ny negligent? No_ Answer: Yes 12 Answer: Yes 11 1 No "Question No. 7: Was the Defendant Coast Cata- "Question your Question No. 12: If answer to negligent Corporation maran in connection "yes", negligence No. 11 was was the of the designing

with the of the Hobie 16 sailboat Company proximate Idaho Power cause mast? and/or accident? No_ 12 Answer: Yes No_ 12 Answer: Yes No, your "Question If 8: answer to the fore- going question "yes”, negli- No. 7 was was the plaintiffs requested special 5. The verdict form gence Corporation proxi- However, of Coast Catamaran appeal is not included in the record. mate cause the accident? transcript jury instruction conference No_ Yes 12 Answer: special questions and discloses that verdict 13 plaintiffs requested special taken from 14 were form, "Question orally by plain- No. 9: Was the defendant Coleman jury amended verdict Inc., negligent? Company, jury tiffs counsel at the instruction conference. No_ Yes 12 Answer: 824 However,

ages negligence jury of causal to each of the if the answered 100%.] Question had entities for which the determined “no” to No. then the instruc- previous Questions negligence Question 5-13. tions in 14 directed that the jury’s findings were as follows: negligence evaluate Coast’s Coleman’s a, b,

separately, jointly. c and e [Parts Thus, Questions THREE 13 “SECTION must total 100%.] (which had been submitted compare “You are now to the extent approved at the instruction Ross, the conduct of Michael conference), instructed to de- Company, Power Coast Catamaran Cor- of Coast and Cole- termine Inc., poration, Company, and Coleman 14(d), Question sepa- jointly, man either or caused the accident. 14(e), Question rately, based their an- “Question parties No. We find the 14: Question 13, and the directions swers contributed to the cause accident Question told the No. 14. Those directions following percentages: in the Question answering “in No. jury that Ross a. Michael % percentages you find at- of causation b. Idaho Power Com- you pany party, each whether use % tributable to or Un- c. Unknown (a), (b), (c), (d) [joint subparagraphs party named _0_% (a), (b), liability]; you subparagraphs use By reason of a d. (e) (c) [separate liability]; must total “yes” answer parties.” for all 100% Question No. 13: Catamaran verdict, When the rendered Company, and Cole- Question No. 13 unanimously answered Company, Inc. man By % 14(d), Question and entered a “0” in “no” e. reason of a thus, pursuant to the court’s instruc- “no” answer Question joint No. found no tion Question No. 13: liability on behalf of joint (1) Coast Catama- Company ran % Coast and Coleman. (2) Coleman Com- pany, Inc. % % II TOTAL THE COURT’S DISTRICT Question 14, use answering “In No. THE OVERRULING answered subparagraph you “d” if JURY’S VERDICT Question 13; “yes” to No. but use sub- “no” to paragraph “e” answered returned its days after the Several if Question (Emphasis supplied.) No. 13. to plaintiff pursuant moved I.R. verdict the Question per- answering “In No. the 49(a) “aggre- court to have the district C.P. centages you of causation find attributa- by imputing gate” the of Coast party, you ble to each whether use sub- plaintiff argued that The it to Coleman. a, b, d; paragraphs c and or use decided if Coleman was the had not e; a, b, subparagraphs c and must total wholly its for the of liable parties.” for all 100% an extended oral subsidiary. After owned judge, after admit- argument, the district foregoing at the end of The directions “floating in uncharted ting that he was particularly instructive. Question 14 were regard authority to his to waters” with instructions, jury was told By those request “aggre- to grant Question “yes” to that if answered Coleman’s, negligence into gate” Coast’s equally [finding No. 13 Coast and Coleman he would rule nevertheless determined that of their business rela- at fault reason motion plaintiff on this negli- favor and Cоleman’s tionship], that Coast’s appear[ed] “it to to be more not because jointly determined and gence [him] should be aggregate those a, b, than not just c must total separately. and d [Parts of, up marketing, manufacturing and plaintiff He left it to the duties amounts.”6 up setting rea- financing a final order out the product draw known as the in the The final order sons order. drawn Sailboat, Cat 16 there exists a Hobie legal simply by Ross’s counsel states as a identity regard prod- to the common parent that the Coleman is liable conclusion uct, making parent company respon- negligent subsidiary, of for its acts respondeat superior, doctrine sible of citing any supporting legal without authori- imputed parent company or lia- ty. It reads as follows: bility; “1. Special An from the issue omitted b. The Court finds that Coleman insti- as not submitted and Verdict policy requiring Develop- tuted a Product requested by party, either was the fol- meetings every ment Committee month Inc., Company, Is. Coleman lowing: Coast; responsible Committee parent corporation Coast Catama- of design changes for existing all in Coast’s Corporation, negli- liable ran for products, 16; including Hobie Cat wholly-owned subsidiary? gence its Coleman exercised control some over the Special Finding, As this Court “2. design of the Hobie and Cat received Company, that Coleman concludes benefit economic from the sale of the Inc., parent company Coast Catama- boats; Corporation, wholly-owned sub- ran c. Court further finds that Cole- negli- sidiary, responsible is man shared subsidiary. responsibility marketing gence that Finding This activities, financing, control and financ- following based and facts ing development, of research and circumstances. adver- product Company tised the as a ‘Coleman a.By joint reason activities product,’ and shared other companies, ac- various re- particularly, these Inc., sponsibilities, Company, including tivities in ei- those of director- jointly performing, sharing control; ther or ship, leadership and transcript clearly 6. The demonstrates that Mr. Schlender between Coleman and judge any I don’t district court Coast. think there’s doubt about authori- unaware appears just ty upon And that. to me be more which to base order. aggregate than not to amounts. those as stated follows: so, question authority “On the to do I think considering aspect "When we’re this floating I’m waters uncharted either di- aggregation, say case that deals with I have to concerned, as far as rection my guess Idaho law is myself, persuaded plaintiff ‘I feel that the ought is that I do to what I think is win,’ ought to and I was unsure or of whether predict right, try rather than to a conserv- that, any authority not there was to do somehow, by approach, ative the Idaho Su- ought the reason that I feel that the preme Court. I have no doubt whether I guess win is not because I wish to second other, way going rule matter is one this concerning jury’s decision whether review, available for and I don’t ought my negligent, defendants held to he why approach I know should do one com- simply motivation is because I I believe that pared to the other. I do what I feel should collectively found defendants do, suggest compel the facts the court to 15%____ negligent in an amount of case, say and in I would that inasmuch percent split, found a ten and five brief, "Initially, reading Lynch’s when Mr. considering the connection between these specific subject, reading along defendants, why ought two the amount to be being compa- fact educated to the that Idaho accept aggregated, and I will that motion of negligence law is the indi- rative considered plaintiffs aggregation the to make such and to approach, vidual or Wisconsin rule that and along present that in the verdict with a—I analogous support did seem to have some for guess judicial finding that that it’s relation- position aggregate. that then shouldn’t added.) ship (Emphasis existed." support real. But don’t think that is that Thus, colloquy above it is evident from the real, illusory I think it’s more than and impute the district court’s decision appellate court our court —our could consist- ["aggregate”] Coast’s Coleman was rule, ently, generally, find upon any particular legal theory the Wisconsin or not based trial, relationship, produced when close in any specific there is a and set of evidence certainly upon this case I find that close relation- but was based the court's overall rather ship, just expressed paragraph feeling read that was in the most result. as what was the “3. Compa- (1904); of Coleman 79 P. Idaho Christen- Inc., ny, and Coast Corpora- Hollingsworth, Catamaran sen P. 211 v. Idaho is tion therefore aggregated and Cole- Company, Inc.,

man responsible for right by jury of trial which is one “[T]he of the negligence proximately which 15% carefully safeguarded by the should be caused injuries. Plaintiffs In accord- courts, party when a and had demanded comparative ance with negligence law trial, he is the such a entitled to have Special by and the Verdict utilized this jury’s findings on benefit of issues jury, respon- Court and the has fact; pre it is not the trial court’s sibility rogative disregard nullify by total 15% or them jury $2,662,376.00, verdict findings or thе making sum of his own.” Hard Mel $399,356.40.” Robinson, added.) Productions, (Emphasis man Inc. v. (Utah 1979). P.2d imputing The counsel-drafted order Coast’s negligence to solely Coleman'was based overruling in this verdict parent/subsidiary relationship, de- case, denying right to thus the defendants’ in “imputed liability the order as scribed or verdict, jury their trial and the district parent company liability,” citing 49(a) without pro- on I.R.C.P. court relied which authority any proposition for the that a “if issue any vides that ... the court omits parent corporation is liable for acts of pleadings of fact raised or imposing its subsidiaries. The evidence, party order to a right each waives his company “imputed liability parent liabili- by jury of the issue so omitted unless ty” attempted justify holding jury be- retires he demands its sub- before the jury.” (Emphasis supplied.) cause Coleman exercised control” “some mission to design copied Cat and re- from Federal Rule of over the Hobie This rule was 49(a) in read ceived economic benefit from the sale of Civil Procedure must be boat, 15(b) pro- conjunction with I.R.C.P. respon- and that which Coleman shared by the financing, control, issues not raised sibility marketing, vides that “[w]hen by express implied pleading tried advertising development, research parties, they consent of the shall be treated the sailboat. if respects they in all had been raised THE COURT’S SPECIAL VERDICT pleadings.” regard With the trial of examining “par Before whether Prac- pleaded, issues 3 Moore’s Federal not company liability” ¶[ ent which was theory, (2d 1987), tice ed. states: 15.13[2] order has basis counsel-drafted purpose of an amendment to con- “The legal law, basis we must first bring pleadings is to proof form to instructions, analyze the court’s the actual which line with issues conference, to instruction deter tried; therefore the case an amend- if mine that issue was even raised brings judgment ment after and, so, evidence, if pleadings and the changes entirely extrinsic issue or some it covered the instructions which were theory on which the case actual- Constitution, given.7 By the Idaho though permissible, ly tried is even right guaranteed. to a trial is Id. there is evidence the record—intro- Const, parties art. 7. Here the ex duced as relevant to some other issue— requested According pressly trial. support which would the amendment. sound, ly, were entitled to a trial on all principle is since it cannot be This issups raised in the v. fairly any implied fact case. See State that there is con- said Miles, (1926); try parties 43 Idaho 248 P. Peo an issue if the do not sent to .442 Burnham, recognize ple squarely rel. Brown it as an issue ex (1922); Johnson, 522, 207 P. 589 trial.” Shields proof presented by allegations in the burden of action the trial court

7. The in a Hoffman, touching plaintiff. Harper pleadings particular on the 95 evidence on a rests 933, Miller, 57, ‍‌​‌​‌‌​​‌​‌​​‌​​​‌​‌‌‌​​​​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‍(1974). question. P.2d Before an issue Miller 88 Idaho 396 (1964). properly may it must be before the court 476

827 concern- 49(a) complaint raised no issue 15(b)together, Ross’s Reading Rules or, for that meaning parent-subsidiary “if apparent ing is that ... plead- matter, joint en- any by joint issue of fact raised or business omits venture which were kind. Evidence was ings by terprise liability or the evidence [and implied consent of strict by express prove plaintiff’s or tried offered at trial to party right damages to a parties] punitive each waives liability, negligence and the issues so omitted unless The by on against Coast and Coleman. claims jury retires he demands sub- prove before the his strict lia- attempt by plaintiff to jury.” very There are few mission to the re- bility claim Coast and Coleman considered Rule federal cases which have plaintiff to submit evidence quired the 49(a). have stated that The commentators marketing manufacturing and design, only by omission it is the “inadvertent” of the two by one or both sailboat actually issues which were court to submit plaintiff to attempt by corporations. by by pleadings or tried raised “unreasonably” prove the sailboat parties express implied consent of the or liability purposes dangerous, for strict both making court in additional justifies which re- damages purposes, punitive and for Wright 49. 9 & A. findings under Rule C. interrela- plaintiff to examine the quired Miller, Civil Federal Practice & Procedure: corporations, re- tionship the two between 2507, is no au- p. There knowledge the electrical garding their litigant can holds that a thority which attempts to rem- shocking problem and the on choose to submit a case evidence, was admitted edy This which it. issues, on choosing not to submit certain liability and support strict others, overlooking certain issues or the- or claims, damages does reflect punitive then, losing after the case before ories and subsidiary involved with its Coleman was retry the jury, ask the trial court to advertising and re- marketing, chose upon the other issues case which of the aluminum searching the modification raise, through neglect or failed to not to mast, ben- generally received economic litigant raise. If the rule were otherwise marketing of the sailboat. from the efit could, by prepar- choice lack of either or we must first decide question edness, jury on one issue try a case to the evidence, whether, upon that the is- based then, legal theory and after an adverse or assuming liability, parent company sue verdict, request the court to redecide the doctrine, by legal was raised there is such a made case on the factual record based evidence, by raised since it was not legal theo- new research and new issues pleadings. ries, party of his depriving thus the other issues, 15(b) provides that I.R.C.P. right those to a trial on constitutional by pleadings, though not raised even rejected cases have such new issues. Our implied “express may be tried State, 105 Idaho practice. Masters v. added.) (Emphasis parties.” consent (“The 197, 200, 73, par- P.2d However, minimal due implies, and consent upon which ties be held to the theories will litigant to a process requires, notice tried.”); Idaho Loan a cause was Eastern being issues are raised. When issues 497, Blomberg, 62 Idaho Trust Co. v. & rais pleadings, the evidence raised 406, (1941)(“Where both 113 P.2d enough clear so ing legal issue must be upon the try their case parties to an action of the issue and parties both know by the theory the issue tendered same as to being issue tried. As this consent to the theory so they are pleadings, bound Transport, Inc. v. Gro Court said M.K. Corp. v. Boise adopted.”); D. Idaho Gold 1192, 1196 ver, P.2d 101 Idaho Lbr. Payette (1980): (1933) (“Furthermore, P.2d unpleaded is- requirement “The that the by the theo- action are bound parties to an implied tried at least the it.”). Accordingly, sues be try we ry on which parties that the consent of the assures issues record to determine what review the parties notice of the issues before have jury. tried to 828 opportunity

the and an duty address asserting It is the of the party give argument. notice, those issues with issues by evidence that first Price, v. City Cook County, pleadings, by Carbon then requesting appropriate Utah, setting instructions out (10th Cox those issues at Cir.1977); 566 F.2d 699 days least v. five before I.R.C.P. County Fremont trial. Building Public 51(a)(1).8 Joyce Stanfield, Brothers v. 33 Authority, (10th Cir.1969); 415 F.2d 882 (“Er (1920) 189 P. 1105 States, Otness v. United 23 F.R.D. 279 predicated ror cannot to in failure (D 1959). .Alaska in the request struct ... absence of for a “ ‘Implied consent to the trial of an un- Goodwin v. Wulfen instruction.”); such pleaded merely issue not established stein, (Ct.App. because evidence relevant to that issue 1984), citing Joyce Brothers approval. introduced objection. was without At plaintiff's requested A review of instruc- appear parties least it must that un- dialogue tions and the at the instruction derstood the evidence aimed to be at the clearly by conference indicated that that Co., issue.’ MBI Motor Inc. unpleaded time arguing Ross’s counsel were that Lotus/East, Inc., F.2d Coast’s and Coleman’s could be conduct (6th Cir.1974). joint theory both on liability evaluated nothing “Where in the record indicates separate Requеst- and on a basis.9 Ross’s unpleaded an litigated was issue ed Instructions were aimed trial, at it is error trial court to for imputing negligence Coast’s to Coleman unpleaded base decision on the is- part on the composite based business See, e.g., Browning sue. Debenture relationship between Coast and Coleman. Holders’ Corp., Committee v. Dasa discussion, plaintiff, after considerable MBI Motor (2d Cir.1977); F.2d 1078 dropped Requested Plaintiff’s Instruction Lotus/East, Inc., supra; Inc. v. Freitag No. 10 in favor of Plaintiff’s Instruction City, Strand Atlantic (which 205 F.2d adopted No. as Instruction (3d Cir.1953).” added.) (Emphasis 26). jury: That No. instruction told the 51(a)(1). jury. ity requested by 8. "Rule Instructions of each individual defendant —Re- quests Objections.—No days later than five toward instructions also were directed — any by jury, before commencement allowing single to assess a any party may requests file written percentage jointly. for Coast and Coleman court instruct on the as set forth in law request, requested such and such instructions Requested No. 10 10. Plaintiffs Instruction upon by parties be served all must and received Inc., Company, may be liable reads: "Coleman (5) days action at least five before the you any by caused Cat 16 if losses Hobie commencement court shall trial. The Inc., Company, participated Coleman find that required requested any consider instruc- manufacture, marketing in the and distribution parties upon not filed tions and served or, Company, Cat of the Hobie Coleman rule, required by may but the court reason- Inc., placing derived an economic benefit from ably permit any party serve written to file and product in the stream or was of commerce requests up for instructions at time to and position to character in a eliminate the unsafe including the close of the at the trial evidence product." upon grounds requested instruc- that such arising during concern the trial of tions matters Requested No. 14 11. Plaintiffs Instruction reasonably action which could not have may Company liable reads: "You find Coleman anticipated requesting party been such design 16 Sail- for a defect in the of the Hobie original or in the instructions were overlooked boat, you provided that find all of the elements requested instructions.....” product defect as re- given, quired previously these Instructions seeking separately both com- 9. The Plaintiff, proved pensatory punitive damages from both cor- if find Company profit or other Coleman porations. pleadings While contain no alle- benefit composite enterprise participated in a business par- gation joint enterprise responsibility, whereby Corporation Catamaran with Coast ent/subsidiary liability, of the evidence after all product in, demand for a a reliance consumer gathered parties for the instruc- and the conference, product Com- was created of his discussions tion pany placed product in the a defective requested that he was instructions indicated added.) hedging separate (Emphasis primary argument commerce.” liabil- stream of

829 failure to the trial court’s predicated on Company lia- may Coleman “You find further. amplify the instruction fully design in the ble for a defect himself who case, plaintiff it was Sailboat, you find provided that Hobie 16 advising the 26No. requested Instruction product defect all of the elements of Com- find the Coleman jury they could required by negli- for defective pany liable Coast’s given, previously these Instructions were find they if gent design of the sailboat Plaintiff, proved by you if find profit or Company for a “that Coleman Company profit or oth- Coleman composite participated in a other benefit participated composite er in a benefit enterprise with Coast Catama- business ran____” enterprise with Catama- business complain, plaintiff cannot (Emphasis add- Corporation____” ran verdict, that its has returned after ed.) adequate place not that instruction was argued plaintiffs Ross’s counsel that the might jury any liability which before the during enough had introduced evidence as a result imposed respon- establish that Coleman was relationship. Holland v. parent-subsidiary failure correct the elec- sible Coast’s Peterson, supra; Mendenhall v. MacGre- mast, conductivity trical in the Hobie Cat’s 145, 149, Co., Idaho 358 gor Triangle 83 primarily based on the relation- business party com- 862 A cannot P.2d ship compa- that existed between the two adequacy or correctness plain of the stated, nies. Plaintiff’s counsel requested has instructions which it itself an “Somewhere has to have Trial give. 75 Am.Jur.2d the court joint relationship], instruction [on (1974), Paul citing Moeller v. St. [requested 14 links in with instruction] (1944)(a party City 16 N.W.2d 289 R. special [given Question our verdict 13] requesting a certain instruction cannot af- question: where we ask them that ‘Do complain that such an instruction terward responsible find that Coleman is given); Papp see also should not have been they jury] say, this basis?’ And if [the Cantrell, Idaho ‘no,’ problem. then the defendants had no (1975) (holding that where They’ve got worry. no damages with instructed on in accordance they’re queried “But as to whether instructions, requested defendant’s responsible sepa- do find Coleman on a subsequently com- could defendant question.” rate damage was exces- plain that the award foregoing statement demonstrates that sive). As stated in v. Diamond Goldsmith (and, goes as the conference Corp., 767 F.2d 415-416 Shamrock on, judge defendants) and the under- (8th Cir.1985): Requested stood that Plaintiff’s Instruction addition, assuming “In that the district (which Jury No. 14 became final Instruc- grant authority the new court had 26) tion No. was directed toward Coleman’s trial, authority of such the exercise joint liability with its Coast because of this .case was an abuse discretion. “composite enterprise business with Coast er- The instructional [Citations omitted.] Catamaran____” Ques- Special Verdict ror on which the new trial order was directly tions No. 13 asked the through based was invited Diamond to decide the factual issue of whether instructions, requested jury jointly Coast and Coleman were liable generally ground courts find no for re- separately liable. given versal when the instructions position party consistent Court, Peterson, This Holland v. seeking relief.” (1974), quoting 518 P.2d MacGregor Triangle from Mendenhall v. inadequate, If Instruction No. 26 was 145, 149, Co., 83 Idaho 358 P.2d plaintiff’s responsibility was the to submit (1961), party specifically held where a fails to more set an instruction which request amplifying legal asserting, further instructions out the issues that it was instruction, Peterson, given may supra, terms of a no error Holland v. rather than wait until after decided the case legal less find no imposing basis for liabili- and request then the retry court to the ty parent a corporation for the acts of issue of parent-subsidiary liability. We subsidiary its under the circumstances conclude any that parent-subsidi- issue of analysis this case. Our is primarily based ary liability by was subsumed Instruction upon our own research because the trial No. Special 26 Questions Verdict 13 legal court’s order set out no authorities or 14, and was by answered in the decision, analysis for its and the respon- negative. the The trial court erred con- brief analysis dent’s has little made cluding that those issues had been re- not issue.12 by jury. solved the First, legislature, the Idaho when it However, assuming even that comparative negligence legislation, enacted “parent company liability” had issue not adopted the “individual rule” which re by been the jury; decided it and that that, quires comparing percentages when by not waived failure sub negligence, negligence plain mit comprehensive a more and inclusive tiff compared against must be each given instruction than the individ Instruction No. 26; determining and that it had ual defendant whether been tried the con parties, express implied, plaintiff may 6-801, sent of the recover. I.C. 6-802 §§ Zaring, 6-803; Odenwalt v. that the court had inadvertently failed 102 Idaho issue; 1, instruct on the (1980).13 neverthe- we The statute re- respondent’s attempts support 12. The brief that was the manufacturer sailboat. action, upon "parent the trial court’s not liability The Illinois court in a held that strict company liability’’ theory, argu- but an product for a to be case found defective and joint ment that Coast and Coleman were ers and therefore were ventur- unreasonably dangerous, parent company a jointly liable for the participates marketing which in the and distri- negligence pointed each other. As earlier dangerous unreasonably product, bution of that out, however, that issue was raised never plac- benefit and which derives economic from pleadings, and the trial no court made such commerce, ing strictly it in the stream of is venture, finding joint of a nor did the trial court damages liable in tort for caused the defec- analysis necessary make of the factors product, tive even if it was manufactured joint establish a venture as set our out in cases However, case, subsidiary, Coast. in this McNabb, 180, of Easter v. 97 Idaho P.2d 541 604 jury specifically found the sailboat in which (1975), 728, Peterson, and Holland v. 95 injured defectively designed Ross was not 518 P.2d trial 1190 Nor did the court unreasonably dangerous. answer jointly find Coast and Coleman for the liable Special Interrogatory unanimously 7No. re- damages, plaintiffs as would have been the case jected plaintiff liability Ross’s strict in tort Rather, joint had a there been venture. the trial Ogg Accordingly, provides case claim. no imposed liability solely against Coleman support for the trial action in this case. court’s negligence liability imputed for Coast’s on an negates theory, any suggestion that the Odenwalt, legisla- held that 13. In this Court joint trial a court found venture to exist be- 6-801, ture, enacting rejected I.C. the "unit parties. Accordingly, tween the like Kren- cases whereby right plaintiffs a to recover is rule” Photo, Inc., gel v. Minn. Midwest Automatic negligence plaintiffs if the is established less (1973), 203 N.W.2d 841 v. Han- and Reber the combined of all defendants. than son, (1952), 260 Wis. are not N.W.2d 505 statute, support interpretation In of that point. Krengel, joint found In trial court we stated: liability venture when that not been issue had suggest incongruous would be "It Reber, jury. submitted to the found plain- there is and one where tiff, one defendant However, joint liability. this case equally negli- and both are to be found joint liability, found no and the court made trial (50%), gent plaintiff nothing recovers ... joint liability. finding enterprise no but where there are defendants and one two Respondent argues City Ogg v. also plaintiff equally and all three found to be Springfield, Ill.App.3d 76 Ill.Dec. (331/3%), nеgligent plaintiff may recover (Ill.App.Ct.1984), supports 458 N.E.2d damages of his either defendant.” 662/3 holding liable for court's action Coleman Zaring, at Odenwalt v. 102 Idaho P.2d design negligent Cat Coast’s of the Hobie sail- However, at 388. Ogg totally inapposite. Ogg boat. rule," rejected recognizing case, negli- The Court the "unit products was a strict not achieve) "frequently a harsh and gence appellate Ogg ] that it Illinois court in case. The Odenwalt, unjust rejected result.” at claim that it not have Coleman’s should proved been held because it had been P.2d liable plaintiff prove operated by long a defend- others before its quires that a greater acquired by than that of After ant’s stock was Coleman. Coast, judgment acquired can be ren- before the stock of both corporations operated separate dered that defendant. Odenwalt v. en- Zaring, supra. tities, nothing and there is in the record to separate personalities reflect that “the Furthermore, the Constitution corporation[s] and the no individuals] expressly statutes of this state limit the longer Kulczyk, exist.” Baker v. 112 Ida- personal liability individual or stock 420, ho at 732 P.2d at 389. There is noth- corporation obligations holder of a for the ing corpo- in the record to reflect that the Const, 17; 11, corporation. of a Id. art. § sham, rate are a mere no structures with I.C. 30-1-25.14 Whether the stockholder § corporate being formalities followed shares, owns one share or all the the Con operators, Surety as was the case of policy stitution and statutes have set the Mortuary, Chapel Ins. Co. v. Rose Life Inc., liability no merely inures as the result 599, (1973). In 95 Idaho 514 P.2d 594 ownership. of that stock The Court fact, contrary. the record reflects the The Appeals recently provi summarized these finding support record would not a sions and this prior Court’s decisions merely ego Coast was the alter of Cole- 417, Kulczyk, Baker v. 112 Idaho 732 P.2d man. (Ct.App.1987), 386 stating: general, corporate strikingly “In a Hassing- status limits lia- This case similar to bility. I.C. 30-1-25. For the Membership Corp., court er v. Tideland Elec. § disregard corporate (E.D.N.C.1985). entity, F.Supp. two re- 622 146 That case First, quirements brought against must be met. there was another action Coast unity must ‘be such a of interest and Catamaran and Coleman because of anoth- ownership separate personalities that the er one of their accident which Hobie Cat corporation low-hanging power and the individual no struck a line sailboats exist____’ longer Tomlinson, electrocuting occupants. Chick v. The federal 483, 485, 573, 96 Idaho 531 P.2d 575 district court held as a matter of law that (1975) (quoting Surety Ins. Co. v. there was not even a triable issue of fact Life Inc., Chapel Mortuary, parent Rose 95 Idaho on the claim that the cor- 599, 601, 594, (1973)). poration 514 P.2d 596 The Coleman was liable for the acts of requirement by showing subsidiary second is met decided the Coast. law, that ‘if the acts are those of treated as case under North Carolina which is corporation inequitable an result will similar to the set out in our cases of law follow, id., Tomlinson, ...’ or that it ‘sanction Chick v. 96 Idaho 531 (1975), promote injustice.’ a fraud or Surety Minich v. P.2d 573 Ins. v.Co. Life Inc., Inc., Developers, Chapel Mortuary, Gem 99 Idaho State Rose Idaho 911, 917, P.2d The federal court Nakamura, (quoting from Tom case held: Hassinger Inc. G. & G. Produce simply “Plaintiffs’ evidence is insuffi- (1969)).”

P.2d 422 Baker v. Kulczyk, corporate cient to show that Coast is a 417, 419-420, 732 P.2d 388-89 phantom puppet which exists as a mere (Ct.App.1987). respect and device Coleman with design process. requirement Neither is met in this case. the manufacture and corporation that this separately Coast was a owned North Carolina cases clear Liability Liability 14. of subscribers and of stockholders— 30-1-25. "[Art. 11] "[I.C. §] shareholders. —A holder of or subscriber private corporations be Dues.—Dues from shall corporation shares of a gation shall be under no obli- may prescribed secured law, such means as be corporation to the or its creditors with any but in no case shall stockholder obligation respect to such shares other than the individually over or above liable in amount pay corporation the full consideration by him.” the amount of stock owned such shares issued or to be for which issued.” type required in order to the Hobie Cat 16 and/or mast.” control is sailboat instrumentality negligent designing by invoke doctrine. Coast occurred 1968, long acquired before Coleman assuming plaintiffs “Secondly, even have Coast’s stock. In no event could Coleman presented requisite demonstration of negligence of be held liable for the Coast, control have prior occurred to the time that Cole- present any such failed to evidence that acquired man Coast’s stock. ‘control’ to commit a fraud or was used wrong perpetrate or to the violation “In certain cases the of one statutory positive legal duty, or or other person may imputed to another to unjust act. Even if com dishonest charge to a third latter exists, plete control some additional cir negli- person injured by reason of such necessary cumstances of fraud are gence. Generally, there is an at- where instrumentality order to invoke the doc tempt рerson civilly one liable for hold Textiles, trine. Ram Inc. v. Hillview another, it must be Mills, Inc., N.C.App. 267 S.E.2d appear prin- that the relation of made to 700, (1980); Huski-Bilt, 703 Inc. v. First cipal agent or master and servant 662, Co., 271 N.C. 157 Citizens Bank & existed the two at the time the between (1967). 352 S.E.2d committed, and that the tor- tort was “Accordingly, the court holds that the in tious act was committed the course light in the most fa- evidence considered scope employment the of the or.within plaintiffs to does not entitle them vorable sought agency, person to be that the jury pass to have on the instrumen- joint in engaged held was responsible tality ego or alter claim and therefore enterprise with the one who venture or for defendant Coleman’s motion summa- negligent.” Negli- 58 Am.Jur.2d was ry judgment 622 GRANTED.” (1971). added.) gence (Emphasis F.Supp. at 152. pointed out that Finally, it must be nothing in There is this record to reflect action, overruling the trial court’s inadequately capitalized that Coast was i.e., “aggregating,” im jury’s verdict and respond and as a result could not to a Coleman, negligence of Coast to puting the fact, against In judgment it. the record Betty contrary Seppi to the court’s v. affirmatively has a net shows Coast 34, given pursu Instruction No. which worth of several millions of dollars and in our case of to the rule announced ant respond any judgment could to rendered P.2d 683 Betty, 99 Idaho Seppi v. corpo- recognize it.15 To Coast’s (1978). Seppi, held that the trial we hold Coleman rate structure and not liable jury on the conse court should instruct negligence would not “sanction for Coast’s findings they special which quences of the promote injustice.” Tom Naka- a fraud or stated: make their verdict. We mura, Inc. v. & Produce G. G. incredibly naive to believe “It would be Therefore, (1969). Idaho 457 P.2d having listened atten- jurors, after if authorized even the trial court had been parties and a tively testimony of the special findings post to make concern- having parade of and after witnesses company ing “parent liability” issue counsel, an- arguments will heard Ross, plaintiff there was asserted special on a verdict form questions swer absolutely legal no basis this record giving any thought to the effect without impose liability on Cole- the trial court to parties these answers will have on any negligence of Coast. man their will effec- and to whether answers

Furthermore, result in accord with their own in its tuate a jury answer justice. respect sense of With Interrogatory lay found that Special have to questions, would “negli most negligence consisted Coast’s extremely dull not to be able to witted designing gen[ce] in connection with thе damages, which was based 2% of punitive proved Coast's and Coleman’s net 15. Plaintiff $6,279,960.00 net combined worth. part their of its claim for worth as Question jury answered No. 13 guess par- When the which answers favor which 186, 193, negligence Seppi Betty, ties.” v. “no” and then assessed 10% Ross, 579 P.2d separately only plaintiff assessed negligence to defendant Coast 5% 10% Seppi, jurors As said in are as much we Coleman, understood to defendant concerned the final result which their render, plaintiff specific that under Instruction No. verdicts will as with the findings apportioning nothing make would “receive [either among parties. Ac- negligence the various Seppi, appar- Based on it is or Coleman].” cordingly, opted in Seppi we favor ent that the intended its verdict consequences disclosure to the plaintiff nothing from that the Ross collect findings approved their the trial and Coleman. Yet the defendants Coast instructing juries courts of the conse- negligence imputed the trial court when quences of their verdicts. Coleman, contrary of Coast give The trial court in this case did verdict, given it rendered the advice Seppi instruction. In Instruction Betty 34 errone- Seppi Betty Instruction No. jury: told the No. the court accurately told ous. compare

“You are now to consequences findings its what parties Compa- Idaho Power be, that, erroneously told but was ny. negli- plaintiffs verdict, would “receive ‍‌​‌​‌‌​​‌​‌​​‌​​​‌​‌‌‌​​​​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‍If find gence equal or more than total Coleman, nothing from” Coast and when either amount fact, verdict, and the as a result of their defend- Company, ant or Idaho Power he will action, judg- “aggregating” trial court’s nothing entity, re- receive that $400,000 nearly rendered ment of gardless damages you of the amount of against jury Had the been cor- Coleman. may find that he the ex- sustained. To rectly in Instruction No. that advised you negligent tent that find the impute negli- the trial intended to court in an amount less than of these Coleman, spite gence to in of their of Coast damages entities the total amount of sus- in finding joint negligence their an- of no by him tained will be reduced Questions Special Nos. 13 swers to Verdict percentage negligence you amount jury may have allocated well example, him. if may attribute to For Ross, and Coleman negligence to negligence you find Michael Ross’s proportions in different in order to accom- Corporation, than less Coast Catamaran “lay justice” plish apparent their sense of recovery Michael Ross’s be reduced will nothing by recover their verdict. that Ross you by any percentage negligence apрarent at the time the trial It is The same may have attached to him. In- gave jury Seppi Betty v. court ei- analysis applies to Michael Ross and thought that it struction No. it had no Inc., Company, or the Ida- ther Coleman (imputing) the in- “aggregating” would Company.” ho Power negligence in dividual of Coast Coleman Thus, in that if this case was told Special the event that the answered “no,” Question there- they answered No. “no,” finding joint no Interrogatory No. 13 requiring them to evaluate Coast’s and against A negligence Coast and Coleman. separately, joint- negligence Coleman’s after review of the trial court’s statements Question ly, Special No. Verdict trial, “aggre- when it made the decision to if “find gate,” judge that the trial discloses amount of equal to or more than the total basically just substituting findings negligence of either defendant [Coast ap- ..., how the should have been plaintiff] he will receive Coleman] [the findings jury.16 nothing entity.” portioned for the from that help "My you of law once said that to—Then have to tell him how he can old Dean school you to, win. you especially, have in a trial court tell the ought judge why you ought and then considering aspect win this case "When we’re aggregation, say I have that deals with However, there was substantial evidence to tioned without first making an off-the- support jury’s findings, and according- proof record particular offer as to the ly, action, the trial which in court’s effect valid need disclose agreement. judgment to a notwithstanding amounted orally granting the motion verdict, clearly contrary to our case indicated it prepare a formal Quick Crane, law. supra; Dinneen v. order parties. and serve it How- Finch, supra; Seppi Betty, supra. ever, no such formal order was entered and court, served required the trial sum, then, the trial court erred when I.R.C.P. 16. the jury’s findings overrode factual Special Questions No. 13 Verdict and 14 At the beginning of selection negli- held Coast and Coleman’s process, later, one month court, the district gence should on separate be assessed in apparent contradiction of its earlier deci- basis, joint imputed and that no negli- sion to withhold knowledge of the settle- gence existed between them because of ment jury, from the advised the entire “composite their relationship.” business venire that: Accordingly, the judgment entered reversed, “Defendants this Coleman is are cause is matter Coleman re- Inc., Company, manded judgment with directions enter Coast Catamaran Corporation. Only on Company, Coleman verdict favor Inc., Corporation Coast.17 Coast Catamaran trial, defendants due to a Ill agreement settlement reached between Michael Boss and the Idaho Power THE SANCTIONS FOR MISCONDUCT Company. The settlement with Idaho BY DEFENSE COUNSEL Power is not an issue nor to be con- prior One month beginning added). sidered in (emphasis this case.” trial, filed Ross a motion in limine to preclude any Thereafter, occasions, mention to the of a set- four other agreement court, tlement between Ross and Ida- district jury, its instructions to the ho Company. Power The agreement district court advised of them the settlement orally granted motion, stating the that the reached Michael and between Ross Idaho agreement settlement not Company.18 could be men- Power Ross Plaintiff admits myself, persuaded plaintiff ought liability only the on that the issue of to filed within feel win, days to 28-day period. ’and was unsure or whether not there after the initial In the that, any authority was plaintiff to do and the reason event the does not so elect within the plaintiff ought judgment 5-day period that I feel that the to win is not the become shall final.” 2, guess plaintiff keep because I wish to second a decision See n. The to elected infra. concerning ought judgment accept whether or the defendants and not a new trial. No issue negligent, my simply appeal by party concerning to be held motivation is is raised on either collectively propriety because I believe that I that the the or the effect court’s found negligent Accordingly, an amount alternative new trial order. we do defendants 15%." not address it. filing Chronologically, 17. Concurrent with the of its other mo- the record that shows the tions, 1985, plaintiff August, the filed a for a motion new trial. motion in limine was filed in and 26, separately hearing August The court district did not address a held on the 1985. Trial 16, 1985, alleged grounds began September motion for new trial and the and on that after- motion, any analysis judge panel make therefor or the as noon told the the entire the Crane, required agreement. jury Quick our recent case v. settlement was selected (1986). Rather, day, judge 111 Idaho 727 P.2d the and afternoon the next the entering judgment again jury after Coleman for once informed the in Instruction No. $399,356.40, merely party the court stated that the that Idaho Power was not a due to the trial, right agreement. denied the to a fair At settlement the close evi- statements, pay just closing unless the defendants "the full amount of dence and before the herein, plus judgment gave jury the entered costs and trial court further instructions to the ordered, and, attorney fees as the court ... within 28 No. district court Instruction the order,” again days jury the date once told the that from of this court's then Idaho Power had right “plaintiff granted plaintiff. Finally, jury to a settled new trial with the after the Jury Requested brief similar Instruction No. “statements [were jury by plaintiff’s to counsel read: made] regarding the fact of settlement between hereby “You instructed that under Ross,” although arguing Power and Idaho law, judg- the total amount Idaho brief statements Ross ment awarded to Michael shall be declaratory argumenta- rather than “were amount, by that which Idaho reduced is, tive, that these statements did not ask paid has heretofore to Michael Power any negli- jury to draw inference about Ross, be- pursuant settlement gence damage or based Idaho Pow- Michael and Idaho tween Ross Power settlement.” er’s Company.” deliberate, retired to but was im- argument In its the defend- mediately “change recalled the word ants’ counsel also referred to settle- ‘any’ phrase judgment,’ ‘the’ to ‘the agreement.19 contemporaneous ment No says ‘any judgment’.” so it The altered objection by plaintiff’s was made counsel jury again, instruction was then read to the statement, required by our counsel’s retired further deliberations. Lindsay Rojas Mfg. decision thereafter, Sometime sent a note (since (1985) Rojas’ 701 P.2d 210 Idaho stating: to the court object, counsel failed to move for mis- “We don’t understand No. 34. Will Ida- trial, instruction, cautionary seek a ho be subtracted our Power dollar preserved); has issue not been Annau amount, percentage then differ-

Schutte, ence between Ross Coast Catamaran (1975). After the case had been submitted Company-Coleman be taken from the dif- had been deliberat- ference? Or will Power be sub- ing day, nearly then attorneys Ross’s tracted from our dollar amount and the requested give supplemental percentage difference be reduced jury regarding instruction to the the effect negligence of Ross?” of the settlement between Ross and Idaho response request, to that the court and argued Company. Power Ross’s counsel agreed counsel discussed the matter that defense counsel’s mention of set- instruction, following additional agreement prejudicial, tlement even given: No. though acknowledged trial, he “in times, your question: “In couple response the court made mention a Do not did, manner, we that Idaho the settlement in Power had settled.” consider discussion, After any purpose, answering considerable the court for when the granted gave the Special motion and Plaintiff’s Verdict. Instruction 43 was deliberate, they age really exagger- had retired to sent out a clarifi- is the either issue. It’s figures, punitive fig- question regarding compensatory cation tlement, ated the Idaho set- Power your ures. You can take As a Jury choice. matter and the trial court submitted In- fact, good lawyers one of the tactics some- Jury struction No. and then later Instruction up punitive times use is build damages this case for attempt clarify 44No. in an to the effect of the say, you 'Okay, and then give but if don’t agreement settlement between Idaho Power and that, that, like them be fair but and come words, during Ross. other the course grab punitive figure’. back and this other the trial trial court informed the members Now, maintain, simply: you’ll just If think agreement five different times that settlement it, logic you’re looking about the at two Power, plaintiff existed between Ross and Idaho punitive figures. you’re going And I think to agreement The settlement was contained in the decide, honesty justice, have to in all all is and given instructions that were to the used and my compensate, you here role to if decide part the deliberations. thing, my engage that’s the or is here to role punishment company?” in counsel the 19. Defendant’s first referred to set- Later, discussing when the evidence as it related during closing argument he tlement when comparative negligence of the various discussing damages. He stated: parties, power company ‘The he stated: has power company "Mr. Ross has settled with the negligence. They up admitted its sat here on they’re suing they’ve and message Coast and Coleman and the and stand they’re admitted and settled compensatory is clear. It isn't dam- and not here.” designed simply Foley, to let know that the adjustments your court will make to Today, again explicit we make that which might necessary.”

verdict that Payne Foley, supra, we held in v. in a instructed, authority “there no trial court to being jury again After so oversee, and, upon, guess insist or second settle- retired deliberate to sometime there- after, negotiations, certainly if any, returned verdict for defend- ment and no ants. authority impose to sanctions for ‘bad bargaining.” supra Payne Foley, faith’ later, 21, 1985, days Four October on (Bistline, 639 P.2d at 1129 at filed plaintiff Ross three motions: a motion J., specially concurring). The findings make district court judg- to additional and enter Ross; imposed in for attorney ment favor a motion a new erred when it costs and trial; attorney costs, for fees and motion engage good fees for failure to in faith granted and sanctions. The trial court negotiations, accordingly and settlement findings and judg- motion for additional for the order must be reversed that reason. ment as in Part II herein. The discussed have in While trial courts discretion gave plaintiff option court also an to determining whether or not settlement elect a new trial as an alternative to the parties agreements between some $399,356.40judgment which it had entered Quick jury, will be disclosed plaintiff, plaintiff in if favor of elected Crane, supra, once the trial court deter- days accept in within five the new trial permit disclosure, in mines to and fact judgment. lieu of the elected (in this case several instructs keep judgment accept times) regarding agreement, the settlement II, trial, in supra. new as discussed Part parties ordinarily entitled to refer both fees, Regarding attorney for motion argu- the court’s instructions their sanctions, judge orally costs and the trial jury. ments to the It would be an unusual granting he stated this motion based case, specific showing, in requiring very 12-121, 54(d)(1) on I.C. I.R.C.P. prohibiting justify a trial court order 54(e)(1), held that the defendants were mentioning in- litigants from the court's $100,000 attorney fees and liable closing argument to structions in their $17,000 in costs.20 The court stated deciding jury. After to instruct and advise finding based on its award was agreement of the settlement be- had that defense counsel failed conduct Power, the trial Ross and Idaho tween faith, negotiations good settlement instruc- made no statement “overwhelming further the court’s be- closing to be mentioned tion was not prohibiting settlement lief that the order any reason argument, nor did he state consciously, argument willfully, why it should not be referred to. that time deliberately [by defense violated counsel].” himself referred to Plaintiff’s counsel the district We conclude that with Idaho their settlement Power attorney fees court’s award costs argument with no criticism this case was erroneous several reasons equal pro- certainly It raise court. would and, accordingly, reverse. we permit party one problems tection imposition of The court’s attor- district agreement, but refer to the settlement part in ney fees based substantial right. party that same deny other finding upon its that the defense counsel that defense counsel had Plaintiff’s claim negotia- settlement had failed to conduct order, in limine when violated the However, this good in faith. Court tions it, troubled the had violated themselves held that the failure to enter into has stated, court. He negotiations is conduct settlement [by of that or not the violation awarding attorney “Whether for fees under I.C. basis requiring 54(e)(1). up Payne Lynch] adds 12-121 and I.R.C.P. v. Mr. § time, eluded, reference I.C. plaintiff requested pre- first for for 20. Counsel discussed, 7-601, will be pare the order. The counsel-drafted order in- which infra. about, sanctions that Mr. Schlender talks Idaho Power. Plaintiff’s counsel also re- something agreement. that is a little harder for me ferred to the settlement The I Lynch having rung by to deal with. think Mr. bell does been both the trial point way plaintiff out in a court in that is more clear to its instructions and the in argument jury, me to the listening now than it was when I the trial court “unring by could not [closing argument], penalizing to st bell” how Mr. Roark’s doing argument defendants for that which long way final was a both plaintiff the court and the previously had faithful adherence to the fact and was as plaintiff, so, having done. done can inappropriate in many ways as a lot of hardly complain of the defendants’ refer- Mr. Lynch presents. ideas that agreement. ence to the same settlement don’t know what the court should do about that.” only We can assume that when the trial court made the decision to instruct the A hearing review of the on the motion in regarding it, agreement the settlement limine conducted a month before the trial effect, withdrew its oral order entered on purpose commenced discloses that the main the motion in limine. The fact that the for the motion in limine was to district court failed to finalize the order in prevent the fact of agree- the settlement parties, written form and serve being brought ment from to the attention do, as he stated he required and as jury. hearing At the on the motion rules, 16(c),21 sup- I.R.C.P. further sanctions, plaintiff’s for counsel stated that ports that deprives conclusion and further he was aware of our then recent case of vitality might the order of the which it Rojas v. Lindsay Mfg. purposes otherwise had impos- have (1985), required which counsel ing sanctions, as will be discussed contemporaneous to make a objection to infra. the mention of a agreement settlement Finally, if there was error in either argument final the objection was referring side to the Idaho Power settle- waived. He was concerned about the rule agreement ment during the trial or the in Rojas which required plain- he stated argument, final that error was ameliorated tiff up time, to stand and object at the giving supplemental Instructions that, observing by objecting, thereby he By Supplemental Nos. 43 and 44. Instruc- draws more attention to the settlement tion No. plaintiff requested, which the agreement. stated, “Now, He you can’t court advised the that “the total unring the bell as far as counsel’s state- any judgment amount of awarded to Mi- ment is concerned. The point at that chael Ross shall be reduced the amount knows there is a agreement, settlement аnd of the Idaho Power settlement.” Then sub- only thing counsel for the can sequently, response jury’s specific to the emphasize do is question, the existence the court jury, advised the importance agree- a settlement Instruction No. “not to consider the However, ment.” in this case any manner, it was not any purpose, settlement defendant, but the trial answering court itself special when verdict.” The “rang the bell” and instructed the court advised the that it “will make jury several separate times on any adjustments your occasions might verdict that regarding agreement the settlement necessary” as the result of the settle- 16(c) 21. The version of I.R.C.P. parties effect at the trial order to be served on all or their time of this trial was rescinded attorneys this Court of record in the action.” replaced by 16(f). version, the current I.R.C.P. present 16(f), Both I.R.C.P. reads: present previous and the rule 16(f). are substan- pre- “Rule Pre-trial order.—After the 16(c) tially the same. I.R.C.P. stated: filing pre-trial trial conference or the of a 16(c). stipulation, pre- the court shall enter a final pre- “Rule Pre-trial order.—After the 16(d) pursuant generally filing trial order to Rule pre-trial trial conference or the of a 16(e)(6). stipulation, pre-trial the form described in Rule the court shall enter a pursuant 16(a) generally copies order to Rule court shall forthwith cause of the 16(b)(6). signed pre-trial form par- described in Rule The court order to be served on all copies signed pre- attorneys shall forthwith cause of the ties or their of record in the action." ingly, frivously in- defended agreement. special ment These two case was not structions, given no unreasonably, which after the or and thus award of were day, attorney deliberating had for a fees could be assessed under I.C. been which 54(e) against 12-121 from the instruc- I.R.C.P. the de- segregated other § specially called fendants. tions and were express of request at the attention —one can Attorney misconduct be a ba sufficient remove —were of imposition sis sanctions under any taint of the court’s oral in of violation was seq., I.C. 7-601 et which referred to § party, assuming order either limine in the court’s written order. I.C. trial any vitality that still had consid- that order contempts 7-601 and states that defines § ering which subse- all the events occurred following or omissions in re acts “[t]he rendering quent the court its oral in spect proceedings to a or justice, court of limine order. therein, contempts authority of the of are any court: Disobedience of law The trial court’s order stated ... judgment, process or granting attorney the awаrd ful order of that it was Assuming, arguendo, 12-121 court.” the dis pursuant fees to I.C. I.R.C.P. § granting the 54(e)(1), Assuming 7-601.22 trict court’s order motion in and I.C. § disobeyed either coun viability, order still had limine had been in limine case, in this have been only it had been sel could cited assuming that violated defendants, contempt under I.C. 7-601. How none of those authorities § $100,000 ever, contempt proceeding under I.C. the trial court to award authorizes proceeding, seq. special 7-601 is a attorney fees under these circumstances. et § First, nature, a violation provides 12-12123 that the tri criminal because I.C. § imprison fine or attorney punishable by thereof is may al award fees to the Quinlan, 7-610; Bandelin v. Coast ment. I.C. “prevailing party.” defendants § (1972). Because prevailing parties in 94 Idaho 499 P.2d were the contempt and, of such a accordingly, of the criminal nature trial no award person proceeding, hold that against made our cases attorney fees could be them I.C. charged contempt under 7-601 if a Secondly, § under 12-121. even I.C. § procedural process due party is entitled to certain litigant prevailing under I.C. is a impose can 54(e)(1) protections the court 12-121, award before I.R.C.P. limits the § to notice of the cases sanctions. He is entitled attorney fees to those in which the him, proof he presented charges against the facts to it exact court “finds from of the knowledge the terms court’s brought, pursued or had was de the case violated, alleged he to have no or order frivolously without founda fended tion____” might added.) im (Emphasis The award tice the sanctions (fine term), jail or and a 54(e)(1) posed him attorney fees under I.R.C.P. charges hearing or raised. 12-121 is directed to those defenses I.C. § Quinlan, supra. While those by any Bandelin supported not factual which are summary in may more proceedings record. See Minich v. Gem evidence in the contempt committed Inc., cases where the Developers, State court, presence rather than Here, in the only not there P.2d court, of the I.C. presence support the de- outside substantial evidence 7-603, proceeding is nevertheless fense, prevailed. Accord- the defendants parties, provided party following prevailing or Contempts fees to the defined.—The 22. “7-601. alter, repeal respect justice, to a court of or amend acts that this section shall or omissions therein, contempts proceedings provides or any for the which otherwise statute authority of the court: ‘party’ attorney’s The term or fees. award any person, part- 'parties’ is to include defined "(5) any judgment, associаtion, lawful or- private orga- Disobedience nership, corporation, court.” process der nization, political subdivi- of Idaho the state sion thereof.” Attorney’s civil ac- fees.—In 23. "12-121. attorney’s tion, may judge award reasonable trial, process you criminal in due nature minimal have a and that have to new requirements case, must be In this only met. look not at individual errors and procedural process much of the due was faults, produce a but new trial a lacking. particular, plaintiffs motion result, different and is result at all fees, for attorney costs and sanctions was evidence, supported and those 54(e), based 12-121 on I.C. and Rule with § think, questions, I are much more diffi- no At reference I.C. 7-601. no time § with, going cult to deal and I’m to read during proceedings was defense coun- especially plaintiff’s both briefs final charged sel he being advised that was brief more I’m with a little care. ... not 7-601, contempt criminal under I.C. or § grant inclined a for the rea- new trial proceedings. those nature of The trial indicated, although sons I ha- that I’ve attorney court’s granting oral order fees it thought through entirely. ven’t So I’ll 54(e), only and costs mentioned Rule assert- have to wait that. I think was ing that defense counsel’s constitut- tactics urged part I take that under advise- “frivolity ed or defense.” unreasonable It ment for a while.” only by plain- in the final order drafted Finally, any 7-610 sanction I.C. limits or § tiff’s counsel I.C. 7-601 was even penalty contempt under 7-601 to I.C. § particularly significant mentioned. That is days jail. fine of or The court’s $500 given alleged contemptu- the fact that the $100,000 in imposing attorney action fees against counsel, ous conduct but the $17,000 against costs as sanctions imposed, criminal sanctions were not statutory defendants exceeded his authori- counsel, against against but the two $116,500.00. ty under 7-610 I.C. § defendants Coast and Coleman. above, For all the reasons set out we procedural process Even if due egre- conclude that trial erred required by rendered, our cases had been giously against in imposing sanctions question then becomes whether matter, defendants in this order the trial court abused its discretion in im awarding $100,000 $17,- attorney fees and posing previously discussed, As sanctions. aside. costs is set the purpose of the court’s oral in limine order prevent agree was to the settlement IV being ment from jury’s called to the atten However, itself, tion. the court subse CONCLUSION quent order, to the in limine instructed verdict of this case was several times on the settlement supported by competent substantial evi- agreement, and it was also mentioned ig- dence. The trial court еrred when it though counsel. Even there finding “joint nored jury’s that no en- contemporaneous was no objection to the terprise” between and Cole- existed Coast statement, defense day counsel’s later findings judgment man and entered when it was called to the attention court’s favor of Ross Coleman. The specifically instructed not to attorney imposition court’s fees on agreement consider the settlement in arriv pursuant and Coleman I.R.C.P. ing at its determination of 54(e)(1)and 7-601 was erroneous and I.C. § pursuant special causation to the verdict. an specific abuse of discretion under the conflicting The trial court made statements facts of this case. not, on whether opinion, the de fense judgment counsel’s comments had effect of the trial court is re- order, versed, on the pre trial. While his final and the cause is remanded with counsel, pared by prejudice finds judgment directions to enter for the de- plaintiff, the court’s statements at the time fendants on the Costs to verdict. suggest hearing He stat appellants. otherwise. attorney No fees. ed: SHEPARD, C.J., JOHNSON, J., Lynch very

“But Mr. also some makes about, good points when bother to concur. Justice, knee,

HUNTLEY, dissenting. Kathryn and Sateren was electrocut- ed. I respectfully disagree must with the ma- filed suit

jority’s Michael Ross Coleman analysis disposition and of this wholly-owned and Company, Inc. its subsid- case. iary, Corporation, Coast Catamaran issue, principal One the whether the trial boat, designed and manufactured the as aggregated correctly Company, well as Idaho Power which had Coleman, I prefer of Coast and ei- placement pow- responsible been for of positions ther one of two that taken presented er The evidence at trial lines. majority. availability feasibility centered on the and (1) I Zaring, would overrule Odenwalt v. manufacturing plastic, nonconducting of (1980) wherein “comptip,” designed to be at the inserted adopted this Court rule” “individual top prevent of metal mast to accidents adopt the “unit rule” “combined of the kind which occurred in the instant approach; comparison negligence” of case. was also presented Evidence show- accidents, ing forty-nine I similar result- would reverse remand for new ing in forty forty-four in deaths and severe trial deficiencies because the the instruc- injuries, years. had occurred recent totally confusing tions rendered them impossible. a fair and valid verdict was that, The further in re- evidence showed sanctions, improper theOn award of for accidents, sponse to these Coast and Cole- аrgument counsel, I of would affirm began searching man for solutions concept appropriate fixing but for reverse problems of contact Cat between Hobie damages. power years masts and lines two purchased

after Coast and Coleman Coast. find a solu- Coleman worked concert to I engineer tion. an from the Specifically, THE FACTS (another Company wholly-owned O’Brien opinion Coleman), Pollard, majority Since somewhat subsidiary Jerry selective background in the factual moved to work on from O’Brien Coast presents, them. comptip restate in 1982. Pollard continued potential develop- regarding confer (Coleman) Inc. its Company, comptip ment manufacture of the wholly-owned subsidiary, Coast Catamaran Eller, engineer, an Bob until O’Brien (Coast) Corporation, appeal the trial court’s able to when O’Brien was manufacture judgment against premised them award comptips first for the Cat masts. Hobie entry special the trial court’s of a Testimony given regarding the rela- finding pursuant 49(a) to I.R.C.P. that their tionship Coleman and Coast. between aggregated virtue of their Campbell, Douglas Ian president, Coast’s joint as status venturers. Coleman stated: appeal Coast also the trial court’s award Corporation whol-

attorney Michael Ross as a sanction is a fees to Catamaran ly-own (sic) subsidiary violation of an order of the Coleman for defense counsel’s up overall Company. Coleman sets alleged in limine and failure to conduct separate corporate operations having good negotiations settlement faith. known divisions of subsidiaries. We’re procedural his- underlying facts as the Hobie Division within the Coleman tory June case are follows: On Company. Kathryn Ross and Sater- Michael great given Each these divisions is Cat sailing en were a Hobie sailboat autonomy by corporation to deal County. As Magic in Blaine Reservoir specialized run our own business shore, they sailed the metal mast toward that we work in. markets line. power an Idaho Power the boat struck Company, Lar- requiring president of Coleman Ross suffered electrical bums light legs ry further on the relation- Jones shed amputation the later both below ship negligence. They between Coleman and Coast as he mitted its up sat here on regarding authority testified this they’ve Coleman stand and admitted it and set- “Yes, possessed comptip they’re development over the tled and not here.” there project: negligence part power on the of the company, yes, causation, and there was and

We owned all of the stock of Coast Cata- it was of the causation. That would 100% maran that time. We could have done case____” logical be a result in this De- anything that we felt to be that we want- fense pros- counsel further alluded to the ed. pect punitive figures” possi- of “two and a Q. you Doug So could have called plaintiff. ble “windfall” award Campbell, president of Coast Cata- [the Jones, said this Larry is and I assessing returned a maran] verdict produce any don’t want more of negligence Power, to Idaho 75% 10% those get prob- Hobie 16’s until Ross, we Michael to Coast Catamaran 10% lem solved with the mast. Corporation Company, and to Coleman 5% Inc. The also A. I think assessed Ross’s dam- going that would have been ages $2,662,376. me, little suffered at Ross then too far to I certainly but could trial, moved for a new or alternatively, have initiated sought ap- that and judgment in proval against his favor and of Mr. Coleman and defend- the board of instructed, way aggregation ants not, directors and so of the and did 10% negligence that is of Coast and correct. 5% Coleman re- spectively, and further moved for an award Company brochures which list- attorney against fees defendants. ed the many Hobie Cat as one of “Coleman Company products” The trial court special finding made a were also admitted joint into evidence. Coast Coleman were ventur- engaged composite ers in a business enter- Additional to the evidence centering on prise and, therefore, aggregated negli- relationship between Coast and Cole- gence companies, awarding of the two man showing was evidence power that the $399,356.40(15% Ross jury’s finding lines Ross hit only twenty-six were feet damage). granted The trial court also water, above fourteen feet below the Ross’s motion to attorney award costs and forty foot standard adopted by the Idaho “overwhelming fees due to its belief that Company Power lying 1977. The low prohibiting argument order settlement lines were discovered an Idaho Power willfully, consciously, and deliberately engineer but reported were neither [by violated defense and due to counsel]” nor trial, relocated. Prior to Idaho Power finding that defense counsel had failed settled with Michael Ross. negotiations to conduct good settlement Ross filed a motion in preclude limine to Attorney faith. fees in the amount of any mention of the.settlement with Idaho $100,000 imposed pursu- as sanctions jury. Power before the Judge Bruce 7-601(5). Additionally, ant to I.C. costs granted motion, ruling that defense right $17,- as a matter оf in the sum of counsel could not mention the settlement 743.17, discretionary as well as costs agreement making without first an off-the- $25,000 amount of were awarded to Ross. proof record offer of particular, as to a appeal At propriety issue on is the valid agreement. need to disclose the aggregation of Coast and However, during closing argument, de- Coleman and of the sanctions awarded fense counsel mentioned the settlement alleged defendants for the miscon- agreement between Ross and Idaho Power duct defense counsel. following in the words: “Mr. Ross has set- power tled company with the II suing message Coast and Coleman and the THE AGGREGATION OF clear, compensatory is it isn’t damage that NEGLIGENCE issue, really exaggerated it is either compensatory figures punitive fig- I aggrega- would affirm the trial court's power ures----” “The company has ad- tion of the party the two defendants, Coleman, adopt rule,” pro- more specifically but reflects a disagreement comparison “unit rule” or found fundamental “combined concept joint the entire and several lia- approach comparing negligence” when bility. generally The “unit limits rule” plaintiff’s negligence that of the defend- proportionate defendant’s to his comparative negligence under Idaho’s ants negligent causation of total dam- doing, system. so overrule that age. only It is when one defendant is opinion portion of our in v. Zar- Odenwalt any “injus- insolvent that or “harshness” 1, (1980), ing, 102 Idaho might tice” to another defendant ensue.2 adopted rule” re- where we the “individual case, may In that be another defendant that, quiring comparing percentages when obligation to of called assume the negligence, negligence plain- of of the It not the rule”-which man- other. is “unit compared against tiff must be each individ- result, concept age-old dates such a but determining in ual defendant whether joint liability. and several As the Penn- of may plaintiff recover.1 Supreme sylvania Court has stated: Odenwalt, In we our rationale for stated Any unfairness a that results when tort- being, in adopting the as “individual rule” propor- pay cannot be to .feasor made interpre- part, comport to with Wisconsin’s damages product is a tionate share negli- comparative its tation of identical liability joint doctrine. several and, of our gence part, statute because applying not It does result from “frequently perception that the unit rule comparison” rule. “combined [unit] Id. unjust achieves a harsh and result.” Orluck, 517, 515 A.2d Elder v. 511 Pa. Specifically, at 102 Idaho P.2d 383. following example: we cited Finally, given where one that instances incongruous suggest be to It would disproportionate- pay defendant is forced to one there is where one defendant remote, it “harsh ly are seems more equal- and both to be plaintiff, are found deny many plaintiffs unjust” recovery to to (50%), negligent plaintiff recovers ly who, unfortunately, injured are more de- nothing; but where there are two Indeed, the commen- than one defendant. plaintiff, one all three fendants and routinely the “unit rule” or tators favor negligent equally found to be ap- comparison/aggregate” “combined (33%%), plaintiff may recover 66%% ground “on the proach, damages of his from either defendant. recovery jeopardized by is not chance 383. P.2d happen to that several tortfeasors the fact Comparative posited re- hypothetical in Odenwalt involved.” V. Schwartz This be Edition, 16.6, p. 2nd 271. See Negligence the “unit just not consternation with flects § against ering. Judgment party holding only action, each such shall will have 1. I realize that such a effect, legislative party’s equal each short-term absent in an amount be entered Legislature session of the Idaho damages the 1987 proportionate share the total award- require specifically I.C. § an amended 6-803 ed. negligence comparison individual basis case, as all others tried The instant as well of that new tried after the effective date cases statute, July this "tort prior to is not affected 6-803(3) July reads: 1987. I.C. now § legislation. reform” joint and doctrine of The common law liability hereby is to causes several limited Indeed, injustices which can even the remote (5), (6) (7) of action listed subsections joint applicability be caused in which the trier this section. action where the in states several doctrine negligence percentage or attributes the fact precluded as has been is used can be “unit rule” comparative responsibility persons listed on a Texas, pursuant Tex.Rev.Civ.Stat. done verdict, separate special the court shall enter 2212(a), 2(b) requires § Ann. article negligence party judgment each whose negligence compared plaintiffs with the is negli- responsibility comparative exceeds the or defendants, negligence of but where total all the gence comparative responsibility attributed or plaintiffs, negligence is less than a defendant's negligence recovering. person The only held liable for that a defendant can such party is responsibility such comparative of each portion to his own of the awаrd attributable negligence individually compared negligence. person responsibility recov- comparative also, Prosser, Comparative Negligence, (Mont.1987). The court considered several (1953). See, factors, Mich.L.Rev. Marier including interpretation of its com Service, Inc., v. Memorial Rescue statutes, 296 parative negligence policy (Minn.1973), Minn. 207 N.W.2d 706 comparative the state in negligence cases wherein defendant driver of highway de concept and the of fundamental fairness. partment truck directed the defendant driv Specifically, the court in North noted lan er left, of an ambulance to turn whereupon guage negligence pro statute which plaintiff. ambulance collided with “contributory vides shall parties found all thirty-three- three recovery bar an action if ... such percent and, negligent and-one-third under greater was not negli than the rule, the individual the court held that gence person against recovery whom right had no to recover. Because sought____” M.C.A. 27-1-702. defendants, there were two rather than court then noted M.C.A. 1-2-105 which § one, plaintiff negligence a whose was less provides: following “The apply rules in this fifty percent than of the cause of his own ‍‌​‌​‌‌​​‌​‌​​‌​​​‌​‌‌‌​​​​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‍singular code: ... includes the damage was denied a recovery in tort. plural plural singular.” and the North court then cited to Mountain Mobile reasons, For the above a substantial ma Mix, (Colo. Gifford, Inc. v. 660 P.2d 883 jority have, of states either through statute 1983) to reach its determination that law, or adopted See, case the unit rule. wording negligence of its statute did not Tull, 882, Walton v. 234 Ark. 356 S.W.2d compel the use of the “individual rule.” (1962), 27-1765; Ark.Stat.Ann. Moun § general “If assembly truly intended the Mix, tain Mobile Gifford, Inc. v. 660 P.2d phrase person” “the plural, to exclude the (Colo.1983); Conn.Gen.Stat.Ann. then it could unambiguously provided have 52-572h; 10, 8132; Del.Code Ann. § tit. § by using that result phrase “each 663-31(a), Hawaii Rev.Stat. Wong v. Ha § person.” individual 660 P.2d at 886. See Tours, Ltd., waiian 401, Scenic 64 Hawaii also, Jensen v. Intermountain Health (1982); 642 P.2d 930 34-4-33-4; Ind.Code § Care, Inc., 903, (Utah 1984). 679 P.2d Code, 668.3(1); Iowa Kans.Stat.Ann. § Finally, having concluded that the “individ 60-258a(a); Prince v. Corp., § Leesona mandated, ual rule” was not statutorily Inc., (10th Cir.1983) 720 F.2d 1166 (apply North court found the “unit rule” more in ing law); Kansas Negley Massey Fergu keeping with the purposes standard son, behind Inc., 465, 229 Kan. 625 P.2d 472 legislative comparative neg enactment of a (1981); 231, 85; Mass.Gen.Laws Ann. ch. § ligence (i.e., system to ameliorate the 41.141(1); Nev.Rev.Stat. Hurley v. § Pub system harshness of contributory Co., 750, lic Service 123 N.H. 465 A.2d negligence) as well keeping as more in (1983); 15-5.1; N.J.Stat.Ann. 2A: § fundamental notions of fairness. Ohio A(1); Rev.Code Ann. 2315.19 Okla. § 23, 13; Stat.Ann. tit. Laubach v. Mor § dissenting opinion Odenwalt, In his gan, (Okla.1978); 588 P.2d 1071 Oregon employed Justiсe Bistline ap- a similar 18.470; Rev.Stat. 42, Pa.Stat.Ann. tit. § proach analyzing legislature’s the Idaho 7102; Orluck, Elder v. 511 Pa. § enacting intent in comparative negli- our (1986); A.2d 517 Jensen v. Intermountain gence system. 6-801, Idaho Code as it § Care, Inc., (Utah Health 679 P.2d 903 prior read to substantially sim- 1984); 1036; Vt.Stat.Ann. tit. Brad § ilar to Additionally, M.C.A. 27-1-702. § ley Appalachian Power 163 W.Va. provision has a identical to M.C.A. (1979); 256 S.E.2d 879 North v. Bun 1-2-105, mandating that “unless other- § day, (Mont.1987). purposes wise specific defined for of a stat- adopt The most recent state singular the “unit” ute ... a number includes the rule, comparison” Montana, or “combined plural plural singular____” and the did so in Bunday, North v. 735 P.2d 270 I.C. analysis 73-114.3 Because our § majority paid lip-service 3. The acknowledging in Odenwalt existence of I.C. 73-114 in statutory interpretation by merely this mode of stating its footnote but that it was not a rule misperceived prior the “unit rative Odenwalt rule” as statute 1971.” is, incongruous, because rule” in Odenwalt, the “unit 102 Idaho at 624 P.2d at 388. fact, just harsh and less more method of The majority adopting Odenwalt comparative negligence applying our laws rejected rule,” “individual rule” the “unit enacting and furthers the intent behind whereby plaintiff’s right is recover “unit system, such and because the rule” plaintiff’s negligence if the is established statutory closely more fulfills our scheme less than the combined of all 1987),I (prior July adopt now would rule,”4 In rejecting defendants. the “unit “unit rule.” we noted Accordingly, as negligence, defendants’ incongruous suggest “[i]t together, greater plaintiff’s, taken than there where is one defendant and jointly severally liable for the one plaintiff, and both are found to be Specifical- damage they amount caused. negligent (50%), equally re- ly, is liable for of the total 10% nothing; there covers but where are two award, damage $266,237.60, and Cole- plaintiff, defendants one and all damage man is liable for of the total 5% equally negligent found to three are award, $133,118.80. (3372%), plaintiff may recover 66%% damages of his either defendant.” Ill 5, Odenwalt, 102 624 Idaho at P.2d ALTERNATIVE ON POSITION AGGREGATION ISSUE incongruity We also noted that “fre such My position ap- alternative to quently unjust achieves harsh and re prove concept having court’s Odenwalt, 5, sult.” 102 Idaho at P.2d 64 aggregated negligence of two de- short, adopted at 388. In we both the case fendant, and but would reverse remand prior law of 1971 and Wisconsin to adhered for new trial for reasons which follow. (See also, concept to our own of fairness. comparative complement As a our to Contractors, Inc., v. Panorama Leliefeld negligence system, adopted has Idaho Wis- (1986).) 111 728 Idaho P.2d 1306 that, requiring consin’s “individual rule” must, then, pre-1971 We look to Wiscon percentages negli- of comparing when law, logical sin and the extensions there negligence plaintiff must be gence, the from, ascertain the of our to boundaries compared against each individual defend- concerning comparison aggre case law determining ant whether Hanson, gation negligence. v. Reber adopted the may recover. We “individual (1972), 260 Wis. 51 505 sets N.W.2d 102 Zaring, rule” v. Odenwalt Beber, analysis. In the framework our (1980), wherein we noted that negligence parent was attrib each comparative negli- adopted Idaho had their deny uted so as cause to both statute, 6-801, gence I.C. Wisconsin § against action one defendant harm 895.045) (Wis.Stat. “Therefore, in 1971. § child, special relying upon the rela their legislation in the absence of some other between, special joint tionship clearly suggest a different which would of, Chicago v. parents. Dombeck duties result, we should follow omitted] [footnote Paul and Railroad Milwaukee St. interpretation Su- which Wisconsin Pacific 420, 129 185 Companies, 24 N.W.2d placed upon compa- their Wis.2d preme had Court only special relationship applied the defendants. general application when between of necessary (Mont. 1987); See, carry Bunday, out intent of the the obvious v. P.2d 270 North 735 Orluck, legislature. (Pa. A.2d Elder 515 517 v. Pa. 1986); Mix, Gifford, v. Inc. Mountain Mobile 4. It should be noted that the "individual rule” 1983); (Colo. Wong v. Scenic P.2d 883 Hawaiian weight of appears run counter to the now (1982). Tours, Ltd., Haw. P.2d authority scholarly opinion in both case also, Harper, Gray, & See 4 F. F. James O. rule,” aggregation of favor of the "unit 22.16, (2d 1986). p: 404 ed. negligence occurring regardless of defendants’ (1964)succinctly stated the rule in Wiscon- 594 Factors which influence wheth subsequent sin to Reber: (and corporate pierced er the veil will be subsidiary ego” deemed an “alter joint of one of two “[T]he imputed venturers is parent) under-capitali the other in ac- include the obvious against persons tions third ...” Dom- subsidiary; zation failure of beck, 129 N.W.2d at 194. parent subsidiary either the or to adhere to corporate formalities; and the formation of clear, then, pre-1971 It is Wisconsin subsidiary perpetrate a fraud. Unit required imputation case aggre- law or Chemical, Inc., ed States v. Jon-T gation in actions (5th Cir.1985); F.2d 686 persons provided third there spe- existed a Middendorf Industries, Fuqua Inc., (6th 623 F.2d 13 Cir. relationship cial so trigger liability. as to 1980). Therefore, we must determine whether Coast, wholly-owned as a subsidiary of Regardless of the rubric under which Coleman, itself, engaged and Coleman (i.e. recognition is found corpo- special relationship. in such a not), rateness or the courts have tended to denoting lоok for factors the existence of PARENT LIABILITY FOR TORTS OF “control,” “domination,” “unity pur- WHOLLY-OWNED SUBSIDIARIES pose,” subsidiary as a “mere instrumen- Liability parent of a for actions of a tality.” Copperweld Corp. Indepen- wholly-owned subsidiary respect to a Corp., dence Tube 467 U.S. 104 S.Ct. entity regardless third can occur of wheth- 2731, (1984), 81 L.Ed.2d 628 the U.S. Su- subsidiary’s separate er the corporateness preme parent Court corporation held a recognized. corporateness Where is rec- wholly-owned subsidiary incapable of con- ognized, agency principles apply upon spiring purposes with each other for parent liability may premised. Section 1 of the Sherman Act due to their Weisser v. Mursam Corp., Shoe 127 F.2d “unity purpose” of design.” or “common 344, 348, (2d Cir.1942). n. 11 The court stated: corporation Where one is under domi- parent A wholly-owned and its subsidiary another, nation of separate corporate complete unity have a of interest. Their personalities entities or might recog- be common, objectives are disparate; nized, treating the principal latter as general corporate guid- their actions are agent, the former making thus separate ed or determined not two acts of the latter in effect the acts of the corporate consciousnesses, but one. Alexander, former. Henn and Laws of They multiple are not unlike a team of Corporations, (3d.ed. p. Ch. 7 356 § drawing horses a vehicle under the con- 1983). single trol of a driver. With or without a Idaho, In we have not had occasion to “agreement,” subsidiary formal acts disregard corporate entity of a subsidi- parent, for the benefit of the its sole ary corporation, recognized but have shareholder. Id. 467 U.S. at 104 corporate identity may disregarded be S.Ct. at 2741-42. where an individual unity had such a Although Copperweld dealt with the ownership interest and separate per- unique parent issue of whether a and its corporation sonalities of the and individual wholly-owned subsidiary longer where, “conspire” could no exist and if the acts at with each purposes issue are treated other for of the Sher- corporation, as those of a Act, inequitable although an man result would those cases ensue. Chick Tomlinson, 96 Copperweld 531 P.2d 573 have cited to are almost exclu- (1975); Surety Chap- sively Ins. involving alleged Co. v. Rose cases violations Life Inc., el Mortuary, Act,5 P.2d 514 Sherman least one court has See, Centers, (E.D.N.Y.1987); H.R.M., International F.Supp. Distribution Inc. v. 657 136 Inc. v. Trucking, (2d Cir.1987); Tele-Communications, Inc., Walsh 812 F.2d F.Supp. Dist., Brewing Reiter's Beer Inc. v. Schmidt

applied principles its in а different context. tion whether in fact the economic enter- Handling Systems, Heisley, SI Inc. v. In one, prise corporate being forms (E.D.Pa.1986), F.Supp. the court largely paper arrangements that do not wholly-owned subsidiary held that a and its reflect the business realities. One com- parent essentially entity the same pany may operated be as a fact purposes ownership alleged trade se- another, division may one only crets, attributing ownership technology shell, financed; inadequately the affairs acquired by wholly-owned subsidiary group may intermingled be so parent, SI. corporate no distinct lines are main- Although in Copperweld the court was some, tained. though by These are no issue, discussing validity a different all, considerations, means of the relevant parent-subsidiary of a combination as a recognize. (Emphasis as the authorities basis for under the antitrust added). laws, description quoted we consider the justice A court’s inherent notions of own equally applicable above to opin remain the hallmark of more recent confront____ situation which we here Pro Environmental ions in this area. Thus, damaging we do not find it Dept. Corp., tection Ventron 182 N.J. ownership claim of of the al- Super. (N.J.Sup.1981), 440 A.2d 455 secrets, leged particularly trade nor even Velsicol, parent, the court found a liable surprising, agreements that there are no consequences pollution for the caused wholly-owned subsidiary] between [the WRCC, wholly-owned subsidiary, its where SI, parent, relating and its to a transfer not, fact, if Velsicol had dominat “[e]ven ‍‌​‌​‌‌​​‌​‌​​‌​​​‌​‌‌‌​​​​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‍technology to SI since are essen- (and did), it ed the affairs of WRCC had tially entity. one and the same ability through stock owner 100% F.Supp. at 370. ship to control those acts of WRCC which Copperweld trend, then, under both might public affect and the environ Inc., Handling Systems, and SI seems to Despite ment.” 440 A.2d at 462. lack of becoming indicate that courts are more inadequate capitalization or substan either cognizant “unity of interest” be parent tially exclusive business with the parent wholly-owned tween a and its sub Velsicol, corporation, pierced the court However, sidiary. the outcomes of cases sepa corporate “the veil WRCC because necessarily unique result from the fact sit pierced, corporate rate form ... unless must, presented, the focus uations might be a shield behind which Velsicol course, relationship the actual be liability opera be immune from would parent subsidiary, tempered tween the substantially which tions controlled concept justice, the сourt’s own exclusively profited, which it and from detailed NLRB v. Deena Art aptly resulting mercury pollution in massive ware, Inc., 361 U.S. 398, 403-04, 80 S.Ct. public peril.” detriment and 440 A.2d 441, 443-44, 4 400 L.Ed.2d added.) (Emphasis at 463. Yet as Mr. Justice Cardozo said Ber- involving specific rela Recent cases Co., 244 N.Y. key v. Third Ave. Railroad tionship and Coleman have between Coast 61, 599, 84, 95, 58, 155 N.E. 50 A.L.R. Ogg disparate results. In resulted complete, may “Dominion be so interfer- 25, City Springfield, Ill.App.3d 121 76 obtrusive, general ence so 531, (Ill.App.1984), 1331 Ill.Dec. 458 N.E.2d a agency parent will be rules held for an electrocu Coleman was liable agent. subsidiary an principal and the involving tion a Hobie Cat and this, accident are control is less than we Where power line under strict low-hanging honesty jus- remitted to the tests of Coleman, theory. jury found as the catalogue. complete This is not tice.” parent, due to the control it exercised may represent- liable companies The several ques- and the economic benefit it re- Apart from that is the over Coast ed as one. Inc., (S.D.N.Y.1986). (D.Colo.1987); F.Supp. Shops, 194 Gucci v. Gucci shell, puppet “mere of the share- ceived from manufacture the Hobie device F.Supp. Cat. holder at or shareholders.” 622 parent company participates A which manufacture, marketing and distribu- appears holdings, In there view of these product tion of an unsafe or which de- measuring stick from be no infallible placing rives benefit it in economic parent liability for of their which torts the stream of commerce or which is in a subsidiary wholly-owned can be determined position eliminate the unsafe character specific —even in con- Coleman/Coast product is liable for the loss text, although in the case the Illi- instant product____ jury caused appear appropriate nois to be tests more present testimony case that in heard unduly than the restrictive North Carolina acquired all Coast’s Coleman Accordingly, tests. would accord stock and installed one of own offi- verdict on the issue of Coleman whether presi- cers as chairman of the board exercised control over as was such Coast dent of Coast. Coleman then instituted a concepts necessary agency to activate policy product development requiring normally substantial deference we accord every meetings month committee at is, That verdict. all reasonable responsible Coast. The committee was inferences be drawn in favor of the design changes for all Coast’s exist- verdict and the verdict would not be dis- ing products, including the Hobie Cat 16. turbed unless evidence and inferences Chief executive officers from Coleman are so clear minds that reasonable could copies of received the committee’s min- Quincy differ on them. v. Joint utes and attended several meet- County, School No. Dist. Benewah ings. addition, the Hobie Cat 16 in- (1981); P.2d 304 Goodwin v. manual, assembly struction and issued in Wulfenstein, 107 Idaho P.2d 947 accident, year stated that (Ct.App.1984). Company prod-

Hobie Cat was a Coleman Here, however, hearing evidence, uct. After presented the above we are with a found gives Coleman liable for the firm verdict which us no indica- injuries caused the accident. Because tion of the agency which view taken on Instead, Coleman exercised some control over the possible issue. there are in- two design Cat, of the Hobie identified in terpretations answers some Hobie Cat literature and received regarding relationship instructions be- economic benefit from same of tween and Coleman. One view boat, proved such facts a sufficient basis points first to Instruction No. for the findings. 76 Ill.Dec. reads as follows: 458 N.E.2d at 1336. Do find Coast Catamaran Cor- poration Inc., Company, un- Conversely, Hassinger Tideland instructions, equally der these Membership Corp., F.Supp. Electrical (D.C.N.C.1985), by fault of their the found reason business relation- court Cole- any damage ship proximate man not cause of by liable caused which was the sailboat, injuries the Hobie Cat as “evidence to Michael Ross? complete not show domination and [did] Ques- jury unanimously no. answered control Coleman at the time Has- (i.e. tion listed No. then various entities singer Cat designed, Hobie manufac- Ross, par- Idaho Company, Power unknown tured and not so domi- sold. does ty, Coleman), jury finances, policies practices nate the designate contribution to the cause of the sepa- has Coast Catamaran that Coast no accident each: mind, rate will or existence of its own.” Question parties No. We find 14: F.Supp. Hassinger contributed to cause of accident required noted that North Carolina law following percentages: only that Coleman would held liable a. Eoss Michael 10% provided corporate entity Coast’s was a b. Idaho Power 75% Company c. Unknown or Unnamed party 0% purposes liability, imputing d. reason of a answer to By “yes” negligence jury’s assessment of 10% No. 13: Coast Cata- Question Ross, and Coleman plaintiff maran Company, to defendant Coast 10% Inc. 0% Company, indicate an to defendant Coleman would 5% reason a “no” answer to e. By part intent on the that Ross No. 13: Question (1) Coast Catamaran 10% Company nothing receive from either Coast or Cole- (2) Inc. Coleman Company, 5% 100% man. TOTAL equally plausible interpretation

Another Question determines that answers answering “In No. use finding jury did in fact make a that Coast you answered subparagraph “d” if Question 13; engaged “composite in a busi- and Coleman “yes” to No. but use sub- not, enterprise,” may, may or ness which paragraph you “e” answered “no” to if interrelationship upon which Question be the kind of (Emphasis supplied.) No. 13. this in- liability imputed. could be Under answering Question per- “In No. terpretation, jury finding to Instruction centages you causation find attributa- entirely understanda- No. 13 is reád to be party, you each whether use sub- ble to fact, ble, had, since the found Coast a, b, d; you paragraphs c and use negligent. “unequally” and Coleman a, b, e; subparagraphs c and must total negligent, found Coast Catamaran was 10% parties.” for all 100% negligent. found while Coleman was 5% interpret Instructions 13 and One can percent percent are not Ten and five together, denoting a lack of when read as and, “equal” amounts of there- relationship Coast and Coleman— between fore, Question jury finding to No. agency otherwise— own assess- was mandated Coleman, might imputed to since negligence. This view also notes ments of and, jury answered no to Instruction unequal that an allocation responded to subsection “e” of thereby, incon- and Coleman is not between Coast “by their busi- Instruction 14. The words finding that the two were sistent with a relationship” appear in Instruction ness enterprise composite in a business involved answer, and, jury’s re- by their “no” imputed might lead to of the kind which sponse interpreted to mean that could be ven- liability. participant One a business relationship there did not exist a business culpable than another. may ture be more such as would Coast and Coleman between did, fact, Further, decide in In- The view that the imputed liability. lead to gains liability issue also cre- imputed Seppi Betty, 99 the struction No. Instruction, No. 26 is viewed: dence when Instruction that: was informed Company liable may find Coleman You design of the Hobie for a defect plaintiff’s negligence you “... If find the sailboat, find all of the provided you total amount equal to or more than the liability or product defe'ct Ida- elements negligence of either defendant or required by these instruc- negligence as he receive noth- Company, will ho Power given, proved previously regardless of the tions entity, ing from that you find that Coleman plaintiff, and if may find that he damages you amount profit or other benefit Company for a the extent that sustained. To composite in a business participated negligent in an amount find the Corpo- enterprise with Coast Catamaran total these entities the less than of demand for a whereby a consumer damages by him will ration of sustained amount upon product product and reliance percentage by the amount of reduced be Company which created Coleman may you attribute of in the stream product placed a defective him....” added.) (Emphasis of commerce. can jury’s answers extent that the To the that, jury when the presumed finding It can be denoting a interpreted as be was, finding that Coleman entities returned distinct and Coast were Coleman fact, fit, to, negligent, they they did so if see and 5% with knowl- refuse don’t edge finding that such a could not poor jury be made to be in- don’t ask the damn already unless had Coleman process. Accumulating volved in the is found Company engaged “composite ain business something goes on all the time. enterprise” Corpora- Catamaran with Coast In view of the deficiencies confusion tion, specified in Instruction No. 26. In instructions, jury would rule that short, this it view maintains was a the case must for trial on be remanded new necessary prerequisite finding to a any the issue liability. part Corporation fault on the retrial, I guidance agree For would that the find the existence of a “com- decision, that the with counsel for Coleman posite relationship” business as between aggregate whether to is for trial court Coast and Coleman. law, to make as a matter of based As both of discussed the views above are presence evidence of the or absence of a equally plausible, position are left in we composite enterprise. business simply where we cannot discern a definitive finding jury regarding the relation- Should the trial desire to submit court ship between Coleman and I relationship the issue of the business to the conclude due that this is to a failure to finding, for advisory an the issue propound designed instructions cogently should be framed more than was finding to elicit a regard. clear this done here. While it duty asserting is the party (here, Ross) issues give IV by requesting appropriate notice jury in- structions, 51(a)(1); Joyce I.R.C.P. Broth- THE SANCTIONS ers v. Stanfield, 33 Idaho 189 P. 1104 mentioned, already As the trial court (1920), I find that here deficiencies in granted Ross’ motion in limine and entered not plaintiffs instructions are due to an order that there be no mention of the failure request adequate instructions, settlement between Ross Idaho Power. but that counsel defendants was at that, provided The order should the defense equally least the cause of the deficient fact, put position legitimate in a instructions. where was defense coun- argued agreement sel who imputation that the issue of mention of the settlement for, special not included on called the defense have to make (plaintiffs verdict having argued record, form proof, an offer of off the before the inclusion), stating: word “settlement” could be mentioned. In

Well, view of going lengthy quotations I’m from de- suggest an in- argument closing struction fense counsel’s which I imputation negligence] [on that, effect, gives opening away already opin- the store and have detailed in imputation negligence____ ion, admits an any I need not look further to find thing you obviously One can do is to supporting the trial evidence that it, then, way got leave it the we’ve judge by grant- did not abuse his discretion get percentages, get after we down obvious, ing egregious sanctions for stream, argue and then come what repeated order on violations of its the mo- should be done with them. remarks, tion in limine. Defense counsel’s Oh, come on particularly implying we counsel]: those Idaho Pow- [Plaintiff’s argue can’t causation, verdict put after er had “admitted” counsel they’ve given their verdict ... We’d position for Rossin the untenable either clearly have to know what the want- ignoring defense counsel’s violative re- ed to do ... calling marks or the attention them to time, thereby one more Accumulating ... further [Defense counsel]: something reinforcing judges do all the harmful effect the remarks time. They might See, percentage take and one have. Rojas Lindsey add Manu- fit, percentage, they another if facturing see 701 P.2d (1985). Here, appropri- counsel for may provide Ross appropriate the more authori- ately or, chose to file a ty motion for mistrial may imposed: under which sanctions alternatively, way for sanctions in the 37(e). Rule General sanctions—failure to attorney that, fees. I would hold had the comply any order.—In addition to trial court attorney based its award of fees the sanctions above under this rule for (which pursuant were made to I.C. discovery procedures, violation 7-601(5)),solely upon the violation of the may impose court in its discretion sanc- counsel, motion limine defense conditions, attorneys tions or or assess trial court would not have abused its dis- fees, expenses against costs or party cretion. attorney obey or his for failure to an pursuant order of the court made However, the trial court obfuscated the added). (Emphasis these rules. finding issue also that “the defendants before, made no offers of settlement dur- V trial, ing $10,000 except or after for the Finally, upon majority a comment offer judgment and that failure of these opinion’s analysis. II majori- Part of the reasonably good defendants to and in faith ty’s opinion captioned: is “The district negotiate discuss or settlement constitutes overruling court’s jury’s of the verdict.” grounds additional for the award of attor- caption That demonstrates the fallacious ney fees and costs.” In view the reasoning opinion. circular finding that only negligent, Coast was 10% appeal issue on is whether the verdict was only negligent, and Coleman it cannot 5% for the or the defendant. The reasonably argued that the defendants majority assumes at the outset it was a not, least, strong did have a and valid defense verdict and then takes nineteen they defense which were entitled to pages explain why the court could not justifiably rely. support I cannot an award gross overturn it. It is a mischaracteriza- partially premised upon of sanctions an al- assert, majority page tion to as the does at leged negotiate good failure to settle page that the trial P.2d at faith where the facts and ultimate jury’s court “overruled the verdict.” findings apparent make it that the defense reasoning necessary circular Sometimes reasonably could have believed that their to reach a result? position case could have been won. The regard taken defendants this can- BISTLINE, Justice, dissenting. not be characterized as frivolous or unrea- sonable. may per- What the trial bench and bar analy- ceive as a flaw in the Justice Bakes employ One can no reasonable method to complex approach sis of this case is his attempt portion ascertain presented. the issues He deals first with $100,000 attorney appropri- fee award was verdicts, sanctity saying that: granted ately for the violation of the order matter, preliminary As a we must consid- limine, portion inappropri- and which findings sup- jury’s er whether the ately granted due to defense counsel’s al- ported by competent substantial evi- leged good failure to settle faith. Such are, If then trial dence. both the appellate is not the function of an court. by the court and this Court are bound then, Ordinarily, we would remand to the reviewing jury’s verdict. When original apportionment trial court for such the evidence adduced at verdict and redetermination of the amount of sanc- light in a must be construed judge favorable tions. As the trial court has since party prevailed who in the retired, However, possible. I this is not verdict. appropriate it more for a trial still deem 1173) judge (At (emphasis to render the initial determina- P.2d at add- one, writer, and, ed). including No this will tion as to a sanction amount accord- truism, quarrel general prop- with that as a ingly, additionally would remand for such case, 37(e) BUT, particular I also note that I.R.C.P. osition. purpose.

851 I why he settled? single biggest primary have issue which was Otherwise good court, real presented upon to trial I don’t feel you the can tell —and favorably plaintiff, now; which it ruled to the much fun right very is not but it impact jury by was the made if It is work. And trying lawsuits. hard final defense counsel’s summation where settle, if you is a lot easier. But can was he did not of Coleman settlement, so substantial that merely Company but implied mention the Idaho Power and Coast Catamaran plaintiff’s pursuit jury that it you to defend ^[******] think you yourself. right, you have a right you improper- if can hurt used Anything gain improp- a If was to windfall. ly. that the cause prejudicial And we submit inflammatory,1 er and hence improper jurors, use eyes to in the as accident was the scene, i.e., Marshall; judge, and Ken- the man on the the trial Kenneth machine concluded, appellate recognized so then it behooves an use of the neth Marshall jury’s findings court to examine the with injured Rojas Pedro machine when he jaundiced eye. somewhat Justice got he this case. He out. because settled however, Bakes, approached opin- has 592, Rojas, p. 701 P.2d 208.2 Where supra, ion-writing tackling task first in case court found Ross’s trial findings, turning and much later to defense his remarks of counsel to be in violation summation, in counsel’s remarks es- order, contrary conclusion should not be sence of which must be found elsewhere forthcoming appellate readily so opinion. Only than his in is in that manner privy judges were not scene. who give great he deference to the able to regard language is there Jus- findings. dissenting opinion tice Brennan’s Cali- opinion finally When Justice Bakes his 149, Green, 90 v. 399 U.S. S.Ct. fornia imposition as reaches issue raised 1930, 489 which he bor- 26 L.Ed.2d for the court-found sanctions violation People Green, rowed from v. 70 Cal.2d order, problem in limine he encounters no (Cal.1969) P.2d 422 Cal.Rptr. 75 451 prior because defense counsel’s summa- lawyer any experienced is which to tion it was “the trial court itself which kept highly appropriate and must be ‘rang the bell’ and instructed the sev- appellate judges mind a cold when review separate regarding eral on times occasions testimony. transcript of triаl Because Jus- agreement the settlement Idaho with Pow- Green, Mosk, People tice who wrote v. 1189). (At P.2d at Justice er.” preliminary hearing discussing the use of a does not his Bakes favor readers trial, transcript at rather than a live wit- so, trial court's instructions which did (cf. Elisondo, ness State may wonder if were of reader well such (1988)),liberty has been taken P.2d ilk as the same that which defense counsel eloquence appeal fit an paraphrase his jury. thing said to the It would be one for transcript: given simply a court to tell a that a transcript reading in cold Lost plaintiff, had defendant settled with the yet more subtle undeniable effect of to tell quite but another counsel style, pauses jury, happened Rojas Lindsay counsel’s rhetorical his Mfg. as tone, (1985): and his variations emphasis P.2d personal rapport his well as with the Now, you will be asked on the verdict pursues peroration. jurors, as he Fo- negli- form whether Mr. Marshall was indignation, expressed rensic whether gent; you I he submit his, good verbally, may produce physically negligent. And submit to special accident. results in circumstances. Coun- his action was what caused this acknowledges very pur- Huntley’s opinion synopsizes the 2. Bakes that the ver- Justice Justice pose (At of the motion for an order in limine was to remarks. batim content of those advising misuse of the court’s of a 1193). avoid P.2d at settlement, Rojas based case. sel always temper must his summation to jurors, using individual their reac-

tions guide as a to the most effective line

of argument. keep in He will mind that

he performer is a juries and the are his performer

audience. good No ignores audience, good performances and all

are conducted purpose for the of favor-

ably impressing the audience.

Having concurred in Huntley’s Justice

dissenting opinion, I agreement am also in

with Justice Bakes that the award of attor-

neys fees cannot stand reason of

having part been in based on the defend-

ant’s failure to negotia- conduct settlement good

tions in regard faith. In that the trial

court should itself have felt bound our

holding in Payne Foley, 102 Idaho

639 P.2d Additionally, as to

Odenwalt v. 102 Idaho Zaring, 624 P.2d (1980), although Justice Huntley has Evans, Keane, Koontz, Boyd, & Simko case, note my taken in that dissent note Ripley, Boise, defendant-appellant. for is also to be taken that Justice McFadden Larry argued. D. Ripley, joined that dissent. Had Justice Huntley Peterson, Boise, Omdorff plaintiff- & time, been Court at and enter- respondent. Orndorff, H. argued. Owen now, tained the same view of Odenwalt hap- Odenwalt mistake would not have JOHNSON, Justice. pened. involving

This is a case contract the in- terpretation portion a Power Sales Agreement (the Agreement) between Afton Inc., Energy, (Afton) and Idaho Power Power). (Idaho Company The is- primary presented sue purchase is whether price payment power terms of set 761 P.2d 1204 forth in Agreement subject to ad- ENERGY, INC., AFTON justment according provisions to other Plaintiff-Respondent, Agreement. The trial court decided not, and we affirm. COMPANY, IDAHO POWER I.

Defendant-Appellant. No. 17052. THE FACTS Supreme facts underlying ‍‌​‌​‌‌​​‌​‌​​‌​​​‌​‌‌‌​​​​​‌‌‌‌‌​‌​‌‌​‌‌‌​​​​​​‌‍concerning Court Idaho. thoroughly prior case are stated in two

Sept. decisions of Energy, this Court. Afton Co., Inc. v. Idaho Power I/III) (Afton P.2d 427 and Afton Energy, Power Inc. v. Idaho Ida IV). (1986) (Afton ho 729 P.2d provisions Agreement that are at issue here are as follows:

Case Details

Case Name: Ross v. Coleman Co., Inc.

Court Name: Idaho Supreme Court

Date Published: Jul 27, 1988

Citation: 761 P.2d 1169

Docket Number: 16295

Court Abbreviation: Idaho