ROLLOVER CLAIMANT TO SEEK REHEARING OF OVERTURNED AWARD

JEFFERSON CITY, Mo.-A woman paralyzed in a Suzuki Samurai rollover accident plans to ask the Missouri Supreme Court for a rehearing of its decision to overturn a $40 million product liability and punitive damages award against the sport utility vehicle's manufacturer.

In a 6-1 decision, the court on Dec. 17 overturned a 30-year-old state standard on when litigants in civil negligence cases stemming from auto accidents may introduce evidence that a driver involved in the accident was impaired by alcohol. The new standard permits such evidence in all cases.

Previously, such evidence was admissible only when other, independent evidence of erratic driving suggested a driver was physically impaired when an accident occurred.

The court then applied the new standard to the rollover product liability case, which Suzuki Motor Corp. was appealing. The court set aside the $40 million award and remanded the case for a new trial, ruling that a trial court erred in excluding such evidence in the case.

The court also ruled that punitive damages can be awarded only if the plaintiff's case is supported by clear and convincing evidence. Previously, only a preponderance of evidence was necessary.

The plaintiff, who was a passenger in the vehicle, plans to seek a rehearing before the state's highest court on several grounds, said plaintiff attorney John Wallach of Hoffman & Wallach P.C. in St. Louis.

Referring to the new standard on the admissibility of alcohol consumption, Mr. Wallach said, "We believe that a retroactive application is inherently unfair when the case was tried under existing law."

He also complained that the court's new standard "is way too broad."

In its decision, the court complained that state courts inconsistently admitted and rejected evidence of drivers' alcohol consumption before accidents. That inconsistency stemmed from courts' varying interpretations of what constituted erratic driving.

"Now, the evidence (of alcohol consumption) is admissible under any circumstance, and that's not a good thing," Mr. Wallach said. "For example, if you're rear-ended at a stop sign and you've had one beer, what's the relevance" of how much you had to drink?

There is no consistent standard state to state on the admissibility of evidence of a driver's alcohol consumption prior to an accident, according to Larry E. Coben of Coben & Associates in Scottsdale, Ariz.

Some states require blood alcohol test results plus eyewitness corroboration of erratic driving before allowing in evidence of a driver's alcohol consumption. Some states rely on a standard similar to the one the Missouri Supreme Court changed, and others rely on a standard similar to the one the Missouri court adopted, said Mr. Coben, who specializes in automobile liability cases.

The Missouri ruling is "a bad decision," Mr. Coben said. Noting society's increasing sensitivity to the issue of drinking and driving, Mr. Coben said regarding such evidence: "You don't let it in and

then explain it away. It's too late."

Mr. Wallach said the court's decision to require clear and convincing evidence before allowing punitive damages would not harm his case. If plaintiffs have any evidence supporting a punitive damages award, the evidence already is clear and convincing, he said.

The plaintiff's argument that the court is applying the new evidence-admissibility standard retroactively is "a red herring," said George Ball, general counsel for American Suzuki Motor Corp. of Brea, Calif.

"This case would have been reversed without overturning the 30-year-old precedent," because the Supreme Court ruled the trial court erred in excluding evidence that witnesses to the rollover were impaired by alcohol, Mr. Ball said.

The case centers on the stability of the Suzuki Samurai sports utility vehicle during hard turns.

Consumers Union of the U.S. Inc. has long maintained the Samurai is "not acceptable." The Yonkers, N.Y.-based consumer advocacy group has reported that 1988 and 19881/2 Samurai models showed a propensity to roll over during hard turns in accident avoidance tests that the group conducted.

Suzuki has been sued by at least 175 individuals involved in rollover accidents, according to Consumers Union.

Suzuki denies that the Samurai is prone to rollover. Suzuki earlier this year filed suit in a California federal court charging Consumers Union with libel and product disparagement.

The National Highway Traffic Safety Administration in 1988 concluded that the Samurai's rollover crash history was no worse than most other light utility vehicles' and that most of the crashes involved high-risk driving maneuvers, poor road conditions or alcohol-impaired drivers.

Elaborating on the high-risk maneuvers, the NHTSA said the Samurai's design may make the vehicle highly maneuverable, which may result in oversteering by inexperienced drivers during unexpected events. That oversteering could induce a rollover, it found.

The NHTSA also reported that the Samurai's stability "decreases significantly" as the vehicle's load increases.

In September 1996, the NHTSA rejected a petition to again consider whether the Samurai is defective. It said the Samurai's track width makes the model less prone than other SUVs to roll over. It also said that increasing vehicle payload does not affect the Samurai's stability as much as it does other SUVs'.

In the Missouri case, the plaintiff, Kathryn Rodriguez, was paralyzed in February 1990 when the 19881/2 Samurai in which she and another woman were passengers rolled over in Warren County, Mo.

According to Mr. Wallach and court papers, the vehicle's right-side wheels veered off the right side of a highway, hitting a ditch and a 14-inch-high dirt headwall-the side of a cemetery driveway. The Samurai returned to the highway and crossed the center line. When the driver, Deborah Dubis, turned right sharply to return to the proper lane, the Samurai rolled over.

But Suzuki argued that the Samurai never returned to the highway. It said the collision with the cemetery driveway launched the vehicle into the air, causing it to roll over in the ditch.

Ms. Rodriguez sued Suzuki for product liability, negligence, breach of warranty and punitive damages. She also sued Ms. Dubis for negligence. Suzuki cross-claimed against Ms. Dubis, alleging negligence.

A St. Louis Circuit Court jury last year found that Suzuki was 100% at fault and ordered the company to pay Ms. Rodriguez $30 million of compensatory damages and $60 million of punitive damages. The trial judge later reduced each the award to $20 million.

The case went straight to the state's Supreme Court because Suzuki challenged the constitutionality of a state statute that appropriates half of punitive awards to the state. The Supreme Court, though, did not address that issue in its ruling.

Instead, it focused largely on the trial court's reliance on 1966 case law in its ruling to exclude evidence that Ms. Dubis had been drinking before the accident. The law was designed to prevent juries from being improperly inflamed against a driver who had been drinking before an accident when the driver's alcohol consumption was not a factor in the accident.

Such a standard made sense under a system of contributory negligence, the Supreme Court said. Under such a system, a plaintiff could not recover any damages if he or she was even minimally responsible for an accident.

But Missouri adopted a comparative fault system in 1983. Under that system, a court apportions liability to each party, and a plaintiff can recover damages based on a defendant's degree of liability.

"A comparative fault system can better accommodate alcohol evidence than a contributory negligence system," said the high court in a decision written by Justice Duane Benten.

The court also was troubled by what it called inconsistent application of the 1966 standard in state courts. For example, evidence of a driver's alcohol consumption was excluded in one case because a state court held that pulling into the path of another vehicle was not erratic driving. However, in another case, a driver's alcohol consumption was admitted because a court determined the driver displayed erratic driving by driving a motor scooter through a stop sign at 20 mph.

In addition, under the previous standard, there were unspecified "other circumstances" when alcohol consumption could be admitted into evidence even when the driver had not been driving erratically, Judge Benten noted.

Under the new standard, proper jury instructions would "diminish any undue prejudice" against a driver who consumed alcohol before an accident, the court ruled.

The court said Suzuki adequately supported its theory that alcohol consumption played a role in the accident that injured Ms. Rodriguez. Ms. Dubis, the driver, admitted drinking two full glasses of wine and three sampler glasses of wine before the accident.

The court also noted that the other passenger in the car said Ms. Dubis may have had even more to drink and that she probably could handle only "a couple of beers" before becoming impaired.

The court also pointed to evidence that there was no corrective steering or braking before the vehicle hit the headwall and that the road was dry.

Suzuki also argued that the trial court also erred in excluding evidence that Ms. Rodriguez had been drinking before the accident. Suzuki said her drinking contributed to her alleged negligent act of riding in a vehicle operated by an intoxicated driver.

Mr. Wallach, the plaintiff's attorney, said there was no evidence Ms. Dubis was intoxicated. The other passenger, who is much smaller than Ms. Dubis, later conceded that she herself could handle only a couple of beers, Mr. Wallach said.

"Regardless of what made the vehicle leave the road, a better designed vehicle would not have rolled over under those circumstances," Mr. Wallach said.

"What difference does it make if the driver had one or two glasses of wine?" he asked. If the accident instead had occurred when another driver who had not been drinking made the same maneuver to avoid a child in the road, the vehicle should not have rolled over, Mr. Wallach said.

He also noted that Suzuki's own sales and marketing memos mention the importance that advertisements show the Samurai with all four wheels on the ground and the need to develop a plan to deal with the roll factor.

Mr. Ball of Suzuki said NHTSA findings show the Samurai is not poorly designed. He also said the lower court did not admit crash replication evidence that showed the Missouri crash occurred as Suzuki contends it did.

Mr. Ball said the memos reflect Suzuki executives' decision not to copy the marketing plans that other SUV manufacturers had used previously-showing the vehicles leaving the ground in off-road maneuvers. The memos' reference to the roll factor referred to the already growing public sensitivity to SUV rollovers before the Samurai was introduced, he said.

Kathryn Rodriguez vs. Suzuki Motor Corp. (f/k/a Suzuki Motor Co. Ltd.) and American Suzuki Motor Corp. vs. Deborah Dubis, Missouri Supreme Court; No. 78539.