Kinuye Kawamoto v. The Honorable Joseph C. Fratto, Jr.

Automobile Accident - Personal Injury - Extraordinary Writ - On March 19, 1997, petitioner and Todd Kelly ("Mr. Kelly")
were involved in a car accident. Subsequently, Mr. Kelly filed a
claim with his insurance carrier and received $2,086 in personal
injury protection and wage loss benefits. On March 31, 1998, Mr.
Kelly filed a personal injury action in small claims court against
petitioner, claiming $5,000 in damages arising from medical
expenses and damages sustained as a result of the car accident.
The judge pro tempore found for Mr. Kelly and awarded $3,688.40.
The judge then set off the $2,086 Mr. Kelly had received from his
insurance carrier, resulting in a final award to Mr. Kelly of
$688.40.

Following the bench trial, Mr. Kelly filed for a trial de
novo in Third District Court, as provided for by section 78-6-10
of the Utah Code. Over petitioner's objection, the trial judge
required the attorneys to proceed by proffer, stating "the spirit
of the small claims is that, quite frankly, no frills and get it
done, but do it properly and justly."

During trial, petitioner contested Mr. Kelly's version of how
the accident occurred and how severe the collision's impact was,
the reasonableness and necessity of the MRI exam Mr. Kelly
underwent, and the degree of Mr. Kelly's impairment as determined
in the medical record prepared by his doctor. Although petitioner
apparently had witnesses present to testify on each of these
issues, her counsel presented the evidence by proffer in
accordance with the judge's wishes, after noting an objection to
the process. At no time did any witness for the petitioner
testify. In comparison, the trial judge specifically allowed Mr.
Kelly to testify, subject to cross-examination, as to how the
accident happened, the nature and treatment of his injuries, and
what limitations he suffered due to these injuries. Although
petitioner's counsel was allowed to cross-examine Mr. Kelly, the
effectiveness of the cross-examination was limited because the
trial judge ultimately had no live medical testimony with which to
compare Mr. Kelly's subjective testimony.

At the close of the evidence, the trial judge announced several conclusions, specifically that: (1) petitioner was at fault; (2) Mr. Kelly suffered the injuries he described in his testimony and was impaired to some degree, regardless of the exact degree of his impairment; and, (3) Mr. Kelly did incur medical bills, all of which, including the MRI, were for reasonable and necessary procedures and services. Based on these conclusions, the trial judge awarded Mr. Kelly $5,000 plus costs and interest. In response to that award, petitioner filed the present petition for an extraordinary writ.

Unknown

Unknown

Judgement vacated and remanded for new trial by the Supreme Court of Utah. See: 2000 UT 6, ___ P.2d ___. Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.