BAIRD v. ELLIOT, 140 Wn. App. 1005 (2007)

No. 24955-7-III.The Court of Appeals of Washington, Division Three.
August 7, 2007.

Appeal from a judgment of the Superior Court for Spokane County, No. 03-2-05318-4, Jerome J. Leveque, J., entered January 20, 2006.

Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Stephens, J.

BROWN, J.

Angela and Timothy Baird, prevailing automobile personal injury plaintiffs, contend the trial court erred in refusing to give definitional instructions for “earning capacity loss” and “disability” in their trial against Peter Elliot, the driver who rear-ended Ms. Baird. Because the trial court did not abuse its discretion, and because the instructions as a whole allowed the Bairds to argue their case theory, we affirm.

FACTS
On September 9, 2001, Peter Elliot, rear-ended Ms. Baird’s car. The Bairds sued Mr. Elliott for economic and noneconomic damages resulting from the accident. The court gave instruction 7, instructing the jury on the recoverable measures of damages, including “earning capacity” loss and “disability.” Clerk’s Papers at 192-93. It did not provide the Bairds’ proposed instructions 12 and 13, defining the terms “earning capacity” and “disability,” ruling the instructions were unnecessary. Report of Proceedings at 979-82.

The jury returned a verdict awarding substantially less in damages than the Bairds expected. The Bairds moved for a new trial, arguing the court’s failure to define the damage terms denied them the right to present their case theory. The court denied their motion, again ruling the definitions were unnecessary, but that their concerns were not without merit. The Bairds appealed.

ANALYSIS
The issue is whether the trial court erred by abusing its discretion in failing to define “earning capacity” loss and “disability” and in failing to grant the Bairds’ new trial request for those reasons. The Bairds contend the instructions were necessary for them to present their case theory.

We review a trial court’s refusal to provide proposed jury instructions and its subsequent denial of a motion for a new trial (based on the refusal to provide proposed instructions) for abuse of discretion. Alcoa v. Aetna Cas. Sur., 140 Wn.2d 517, 537, 998 P.2d 856 (2000); Goodman v. Boeing Co., 75 Wn. App. 60, 68, 877 P.2d 703 (1994). Jury instruction rulings based on errors of law are reviewed de novo. Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006).

“Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.” Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996). Definitional instructions are generally needed where a technical term is used that is not of ordinary understanding. Hanson Plc. v. Nat’l Union Fire Ins. Co., 58 Wn. App. 561, 569-70, 794 P.2d 66 (1990). A trial court has broad discretion to determine the number and specific language of the instructions to be given and whether definitional instructions are necessary. Bodin, 130 Wn.2d at 732; Goodman, 75 Wn. App. at 76.

Here, instruction 7 was not misleading, it properly informed the jury of the applicable law, and it specifically followed Washington Pattern Jury Instruction 30.01.01. 6 Washington Pattern Jury Instructions: Civil 30.01.01 at 269 (2005). The court listened to the Bairds’ argument twice, once during trial and once during the post-trial motion for a new trial, and determined definitional instructions were unnecessary. The Washington pattern jury instructions do not define these specific terms, and the Bairds have not shown definitional instructions were required. Instruction 7 allowed the Bairds to argue their case theory and present evidence of specific damages, which they did. The court did not abuse its discretion in refusing to provide the Bairds’ proposed instructions and in denying their motion for a new trial.

Mr. Elliott requests that we sanction the Bairds’ counsel under RAP 18.9(1) for filing a frivolous appeal for the improper purpose of punishing Mr. Elliott’s insurer. “An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility of reversal.”Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 200-01, 796 P.2d 412 (1990).

Considering the trial judge’s ruling that the Bairds’ arguments were not meritless, and the conflicting affidavits regarding the filing of the appeal, the Bairds’ appeal is not frivolous. Mr. Elliott’s request for sanctions is denied.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SCHULTHEIS, A.C.J., STEPHENS, J., concur.

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