Tort/Negligence – Fifth Amendment – Civil Action – Discovery – Contributory Negligence

Lovendahl v. Wicker. (Lawyers Weekly No. 10-07-1162, 26 pp.) (Martha A. Geer, J.) Appealed from Guilford County Superior Court (Richard W. Stone, J.) N.C. App. Click here for the full text of the opinion.

Holding: A defendant in a civil case can assert his Fifth Amendment rights and refuse to answer questions in a deposition, but not without consequence to his civil case. Where defendant refused to answer questions at his deposition because he did not want to incriminate himself, the trial court did not err by refusing to allow defendant to rely on the affirmative defense of contributory negligence.

We affirm the trial court’s order striking defendant’s affirmative defense.

Background

The plaintiff is administrator of his mother’s estate. His mother was killed in a car accident in which her husband was driving. After the accident in Randolph County, the husband was charged with DWI, exceeding a safe speed and second-degree murder.

The son filed a wrongful-death suit, and the husband filed an answer alleging contributory negligence. In his answer, the husband said he and his wife had been drinking for several hours together on the night of the accident, that she chose to ride with him when she “knew [or] by exercising reasonable care, should have known of his intoxication or impairment level,” and that it was unsafe to ride with him.

At the first deposition date, defendant’s attorney said that he intended to assert his Fifth Amendment right against self-incrimination based on the pending criminal charges and would not answer questions.

The plaintiff then moved to strike the defendant’s answer and for entry of default as a sanction for the refusal to answer deposition questions. Defendant moved to stay discovery.

Superior Court Judge Catherine Eagles denied defendant’s motion for a stay. She ordered defendant to submit to a deposition within 45 days and said he might elect to claim his privileges under the Fifth Amendment but “he may not do so without consequences in the present action.”

When the deposition of the defendant was reconvened, his criminal defense attorney told those present that his client was charged with second-degree murder and that “it will be my instruction that Mr. Wicker can identify himself for the record” but that beyond that he would assert his Fifth Amendment rights.

Plaintiff moved for sanctions, to strike defendant’s answer and to strike affirmative defenses. Judge Richard Stone entered an order saying the defendant should not have the power to “silence his own adverse testimony when such testimony is relevant to the cause of action or the defense.” He noted that while lawful, the defendant’s continued refusal to answer questions to avoid self-incrimination was prejudicial to the due process rights of the plaintiff and impeded his ability to obtain accurate discovery.

Discussion

Defendant contends the trial court lacked authority to impose sanctions under N.C. R. Civ. P. 37 at this stage of the litigation. In general, Rule 37 sanctions are imposed for the failure to comply with a court order. Defendant argues that since he did not fail to appear at the deposition, he did not violate the order.

We construe the order as directing the defendant to either answer questions or assert his Fifth Amendment privileges. The order placed him on notice that if he did not answer questions, there would be consequences in his civil action.

Defendant further argues the imposition of sanctions violates his Fifth Amendment rights. In Cantwell v. Cantwell, 109 N.C. App. 395, 427 S.E.2d 129 (1993), this court recognized that a party in a civil proceeding may assert Fifth Amendment rights but stressed that the “privilege against self-incrimination is intended to be a shield and not a sword.”

Defendant argues that there are other sources by which it could be determined if the decedent voluntarily got into the car with him. But defendant cannot assert contributory negligence unless the defense is well grounded in fact. Plaintiff cannot learn the factual basis for the affirmative defense and prepare the case without obtaining discovery from the defendant.

Defendant argues that plaintiff can anticipate what defendant’s testimony will be by looking at defendant’s answer. But the answer does not provide the detail necessary; moreover the answer is unverified.

The defendant also argues that the trial court erred by not adequately considering alternative sanctions before striking his defenses. We hold that the trial court properly balanced the interests of the parties.

Affirmed.