134 P.3d 570
2
court stated that the “privilege against adverse testimony by a spouse has continued to receive
recognition in modern times because of ‘its perceived role in fostering the harmony and sanctity
of the marriage relationship.’ ” See also (“The testimonial provisions of the marital privilege are
We are not persuaded otherwise by the opinions of other divisions of this court in , and , rev’d on
other grounds, .
In the plaintiff attempted to invoke the physician-patient privilege on behalf of her mother to
prevent the defendant physician from presenting testimony that would impeach the plaintiff, even
though her mother was not a party to the lawsuit. The trial court overruled the objection and
privilege, as in the case before us.” .
*574 In Covington, the defendant was charged with second degree assault after he fired a shot
which struck his wife. While treating the wife, a physician assistant photographed the wife’s
wounds. Prior to trial, the wife filed a motion in limine invoking her physician-patient privilege.
However, the trial court allowed the physician assistant to testify as to the foundation for the
physician-patient privilege. Covington, supra.
The supreme court granted certiorari review on unrelated issues. In a footnote, the supreme
court observed that no one had raised the issue of whether the defendant had standing to invoke
the privilege. . Although the court declined to address that issue, it cited four cases from other
states which all held that the privilege was personal, and therefore, a defendant who was not the
marital communications privilege is personal to the spouses is supported by decisions from other
courts. See (bank officials sued by wife whose husband had fraudulently persuaded her to
convey property to them, may not invoke the statute protecting communications between
husband and wife); (the marital communications privilege is personal to the spouses, and does
not apply to third parties); (spousal privilege belongs to the spouse against whom the testimony
“the rightful search for truth.” see (privileges are creatures of statute that must be strictly
construed because all privileges derogate the search for truth).
Wigmore on Evidence addresses the issue of a party’s standing to assert a privilege on appeal if
3
any way renders less trustworthy the finding of the verdict. On *575 the contrary, only the
exclusion of it could have been an obstacle to the ascertainment of the truth. The only interest
injured is that of the privileged person. His remedy-if, as is usually the case, he was a witness-
was to refuse to obey and to appeal for vindication if the court had attempted improperly to use
compulsory process of contempt.
and be committed for contempt, or he may submit; but the party has no right to interfere or
complain of the error.”).
We conclude this reasoning is in accord with the General Assembly’s intent in creating the marital
communications privilege to protect the marital relationship. E-One is not asserting error on
appeal to protect the sanctity of Costello’s marriage, but instead, to protect itself from civil liability.
the decisions of another division), aff’d sub nom. .
III. Fiduciary Duty
E-One contends that the jury verdict finding it guilty of aiding and abetting Costello’s breach of
fiduciary duty must be set aside because there is no evidence in the record to prove that Costello
owed Western a fiduciary duty. We disagree.
E-One did not object to this instruction in the trial court and does not contend on appeal that the
instruction was erroneous. Accordingly, if the jury could have found that Costello was acting as
an agent for Western, then it properly found that he owed Western a fiduciary duty.
“Agency is the fiduciary relation which results from the manifestation of consent by one person to
another that the other shall act on his [or her] behalf and subject to his [or her] control, and
the parties materially agreed to enter into a particular relation to which the law of agency
attached. see also .
Whether an agency relationship exists is ordinarily a question of fact. We will not disturb a
jury’s determination of a factual issue if the record reveals a reasonable basis to support it.
Here, Western’s president testified that he hired Costello as a salesman for Western and that
testified that Costello did not turn in the schedules on a regular basis, even though he was
required to do so.
Costello testified that he reported to his immediate supervisor as well as to the president; that he
understood that he had an obligation to be honest with Western and to disclose helpful
information to it; and that he recognized an obligation not to disclose Western’s confidential
president, he was required to do so. See (the right to control, not the fact of control, is the
relevant consideration).
Accordingly, sufficient evidence in the record supports the jury’s conclusion that Costello was
acting as an agent for Western, and therefore, he owed Western a fiduciary duty. See
IV. Spoliation Instruction
the documents out because of the lawsuit.
Nevertheless, E-One contends that it was entitled to a spoliation instruction regarding this
evidence because, contrary to Western’s contentions, those documents might have shown that
Costello’s sales performance had not deteriorated in the months immediately prior to the
termination of the contract.
V. Economic Loss Doctrine
E-One contends that the trial court erred in denying its motion for judgment on the *577 pleadings
because Western’s claims for breach of fiduciary duty, civil conspiracy, and intentional
interference with contract were barred by the economic loss rule.
However, an order denying a motion for judgment on the pleadings is not a final judgment subject
be reviewed on appeal. See
VI. Prejudgment Interest and Costs
Finally, E-One contends that the trial court awarded improper amounts to Western for
prejudgment interest and costs. We agree and remand for further proceedings.
A. Prejudgment Interest
6
an evil intent, and with the purpose of injuring the plaintiff, or with such a wanton and reckless
disregard of his rights as evidence a wrongful motive.” (quoting ). “Wanton and reckless”
Here, the jury could conclude beyond a reasonable doubt that E-One was aware that its
purposeful interactions with Costello could have, and later did, cause substantial harm to
Western.
Costello testified that he had provided information to E-One about Western’s poor cash flow
situation. He further testified regarding ongoing conversations that he had had with E-One’s
manager’s instructions, instead of Western’s president’s instructions.
E-One’s manager testified that Costello called him one day about a particular bid that Costello
wanted to submit, but that Western did not want to submit. The manager helped Costello
prepare the bid. However, neither E-One’s manager nor Costello told Western’s president that
they had submitted a bid, even though it was on behalf of Western. The president later
be thrown out.
E-One’s specialist responded, “You have my permission to kick [Western’s] ass.”
There is sufficient evidence supporting the jury’s findings that E–One’s conduct was wanton and
reckless. E-One’s covert interactions with Costello clearly worked to the detriment of Western’s
employment relationship with him and ultimately ended in his termination. See (evidence was
Accordingly, the jury could find that E-One’s actions were purposefully performed with an
awareness of the risk in disregard of the consequences, and its award of punitive damages
against E-One must be reinstated. See
The judgment is reversed as to the denial of punitive damages and as to the amount of costs and
prejudgment interest, and the case is remanded to the trial court for further proceedings
consistent with this opinion. In all other respects, the judgment is affirmed.
2
court stated that the “privilege against adverse testimony by a spouse has continued to receive
recognition in modern times because of ‘its perceived role in fostering the harmony and sanctity
of the marriage relationship.’ ” See also (“The testimonial provisions of the marital privilege are
We are not persuaded otherwise by the opinions of other divisions of this court in , and , rev’d on
other grounds, .
In the plaintiff attempted to invoke the physician-patient privilege on behalf of her mother to
prevent the defendant physician from presenting testimony that would impeach the plaintiff, even
though her mother was not a party to the lawsuit. The trial court overruled the objection and
privilege, as in the case before us.” .
*574 In Covington, the defendant was charged with second degree assault after he fired a shot
which struck his wife. While treating the wife, a physician assistant photographed the wife’s
wounds. Prior to trial, the wife filed a motion in limine invoking her physician-patient privilege.
However, the trial court allowed the physician assistant to testify as to the foundation for the
physician-patient privilege. Covington, supra.
The supreme court granted certiorari review on unrelated issues. In a footnote, the supreme
court observed that no one had raised the issue of whether the defendant had standing to invoke
the privilege. . Although the court declined to address that issue, it cited four cases from other
states which all held that the privilege was personal, and therefore, a defendant who was not the
marital communications privilege is personal to the spouses is supported by decisions from other
courts. See (bank officials sued by wife whose husband had fraudulently persuaded her to
convey property to them, may not invoke the statute protecting communications between
husband and wife); (the marital communications privilege is personal to the spouses, and does
not apply to third parties); (spousal privilege belongs to the spouse against whom the testimony
“the rightful search for truth.” see (privileges are creatures of statute that must be strictly
construed because all privileges derogate the search for truth).
Wigmore on Evidence addresses the issue of a party’s standing to assert a privilege on appeal if
3
any way renders less trustworthy the finding of the verdict. On *575 the contrary, only the
exclusion of it could have been an obstacle to the ascertainment of the truth. The only interest
injured is that of the privileged person. His remedy-if, as is usually the case, he was a witness-
was to refuse to obey and to appeal for vindication if the court had attempted improperly to use
compulsory process of contempt.
and be committed for contempt, or he may submit; but the party has no right to interfere or
complain of the error.”).
We conclude this reasoning is in accord with the General Assembly’s intent in creating the marital
communications privilege to protect the marital relationship. E-One is not asserting error on
appeal to protect the sanctity of Costello’s marriage, but instead, to protect itself from civil liability.
the decisions of another division), aff’d sub nom. .
III. Fiduciary Duty
E-One contends that the jury verdict finding it guilty of aiding and abetting Costello’s breach of
fiduciary duty must be set aside because there is no evidence in the record to prove that Costello
owed Western a fiduciary duty. We disagree.
E-One did not object to this instruction in the trial court and does not contend on appeal that the
instruction was erroneous. Accordingly, if the jury could have found that Costello was acting as
an agent for Western, then it properly found that he owed Western a fiduciary duty.
“Agency is the fiduciary relation which results from the manifestation of consent by one person to
another that the other shall act on his [or her] behalf and subject to his [or her] control, and
the parties materially agreed to enter into a particular relation to which the law of agency
attached. see also .
Whether an agency relationship exists is ordinarily a question of fact. We will not disturb a
jury’s determination of a factual issue if the record reveals a reasonable basis to support it.
Here, Western’s president testified that he hired Costello as a salesman for Western and that
testified that Costello did not turn in the schedules on a regular basis, even though he was
required to do so.
Costello testified that he reported to his immediate supervisor as well as to the president; that he
understood that he had an obligation to be honest with Western and to disclose helpful
information to it; and that he recognized an obligation not to disclose Western’s confidential
president, he was required to do so. See (the right to control, not the fact of control, is the
relevant consideration).
Accordingly, sufficient evidence in the record supports the jury’s conclusion that Costello was
acting as an agent for Western, and therefore, he owed Western a fiduciary duty. See
IV. Spoliation Instruction
the documents out because of the lawsuit.
Nevertheless, E-One contends that it was entitled to a spoliation instruction regarding this
evidence because, contrary to Western’s contentions, those documents might have shown that
Costello’s sales performance had not deteriorated in the months immediately prior to the
termination of the contract.
V. Economic Loss Doctrine
E-One contends that the trial court erred in denying its motion for judgment on the *577 pleadings
because Western’s claims for breach of fiduciary duty, civil conspiracy, and intentional
interference with contract were barred by the economic loss rule.
However, an order denying a motion for judgment on the pleadings is not a final judgment subject
be reviewed on appeal. See
VI. Prejudgment Interest and Costs
Finally, E-One contends that the trial court awarded improper amounts to Western for
prejudgment interest and costs. We agree and remand for further proceedings.
A. Prejudgment Interest
6
an evil intent, and with the purpose of injuring the plaintiff, or with such a wanton and reckless
disregard of his rights as evidence a wrongful motive.” (quoting ). “Wanton and reckless”
Here, the jury could conclude beyond a reasonable doubt that E-One was aware that its
purposeful interactions with Costello could have, and later did, cause substantial harm to
Western.
Costello testified that he had provided information to E-One about Western’s poor cash flow
situation. He further testified regarding ongoing conversations that he had had with E-One’s
manager’s instructions, instead of Western’s president’s instructions.
E-One’s manager testified that Costello called him one day about a particular bid that Costello
wanted to submit, but that Western did not want to submit. The manager helped Costello
prepare the bid. However, neither E-One’s manager nor Costello told Western’s president that
they had submitted a bid, even though it was on behalf of Western. The president later
be thrown out.
E-One’s specialist responded, “You have my permission to kick [Western’s] ass.”
There is sufficient evidence supporting the jury’s findings that E–One’s conduct was wanton and
reckless. E-One’s covert interactions with Costello clearly worked to the detriment of Western’s
employment relationship with him and ultimately ended in his termination. See (evidence was
Accordingly, the jury could find that E-One’s actions were purposefully performed with an
awareness of the risk in disregard of the consequences, and its award of punitive damages
against E-One must be reinstated. See
The judgment is reversed as to the denial of punitive damages and as to the amount of costs and
prejudgment interest, and the case is remanded to the trial court for further proceedings
consistent with this opinion. In all other respects, the judgment is affirmed.