Ashby v. Ragon

Decision Date22 April 2020
Docket NumberNo. CV-19-192,CV-19-192
Citation601 S.W.3d 124,2020 Ark. App. 251
Parties Devlin Vediel ASHBY and Shelter Mutual Insurance Company, Appellants v. Marnette RAGON, Individually and as Special Administratrix of the Estate of William Ragon, Appellee
CourtArkansas Court of Appeals

Matthew, Sanders & Sayes, by: Mel Sayes, for separate appellant Shelter Mutual Insurance Company.

Brad Hendricks Law Firm, Little Rock, by: Christopher R. Heil ; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.


This personal-injury case has a car wreck at its center. After a jury trial, Marnette Ragon and William Ragon1 were awarded approximately $353,000 in damages for injuries caused by Devlin Ashby's negligence. The focus of Shelter Mutual Insurance Company's appeal is whether the circuit court should have granted Shelter's motion for a mistrial after the court allowed evidence that Ashby may have been intoxicated and then did not give the jury instructions dealing with the topic of intoxication. Finally, Shelter challenges the attorney's fee award in the Ragons’ favor.

We affirm the denial of Shelter's motion for a mistrial, the court's judgment on the jury's verdict, and the related fee award.


In January 2016, the Ragons and Devlin Ashby were involved in a car wreck. According to the Ragons, they had stopped at a stop sign but were struck by Ashby's vehicle, on their car's right rear side, as they drove through the intersection after stopping. Ashby had just driven around a slower vehicle in the oncoming lane when he struck the Ragons’ car. Ashby left the scene on foot. The passenger in Ashby's car stated that Ashby was intoxicated and speeding. Such were the material facts as alleged in the Ragons’ complaint against Ashby. The complaint also named Shelter as a defendant. Shelter was the Ragons’ insurance carrier at the time. The Ragons sued Shelter under their underinsured-motorist coverage and, if necessary, their uninsured-motorist coverage. The complaint sought damages for physical injury, mental anguish, past and future medical expenses, and punitive damages.2

The case went to trial, and a jury awarded $183,046.37 in damages to Marnette Ragon and $170,249.94 in damages to William Ragon. Facts related to the issues on appeal—the court should not have allowed the jury to hear intoxication evidence in the first place, and a mistrial should have been granted when the court did not properly instruct the jury at the trial's end—are discussed below as needed.


Did the circuit court abuse its discretion when it let an investigating police officer testify that Ashby showed some indicia of intoxication when he talked with Ashby at the accident scene? We address this question first.

Prior to trial, Shelter moved to prevent Officer Jeffrey Coburn from testifying that Ashby was intoxicated when the wreck occurred or was otherwise at fault. Officer Coburn responded to the accident and engaged personally with Ashby while investigating what happened. Shelter argued that there was "no reliable evidence that Ashby was intoxicated or impaired at the time of the accident," so any testimony to that effect should be excluded as being unduly prejudicial. Shelter contended that the officer's testimony should be limited to his factual observations.

The court held a hearing on the motion in limine, during which the Ragons’ counsel said that Officer Coburn would testify that Ashby was "slurring his speech, that he smelled of intoxicants, he admitted he had been drinking earlier in the day, and that he had red eyes." Shelter objected to any evidence of alcohol use being allowed because it was more prejudicial than probative. The court said, "I think I'm going to let it in, but, but you need to talk to your officer as to not give an opinion."

At trial, Officer Coburn testified that he responded to a car accident on 2 January 2016. He said that a blue Mitsubishi Montero driven by Ashby was pulled onto the curb and that there were two other vehicles in the intersection of Mills Street and Lynch Drive in North Little Rock. When Officer Coburn arrived at the scene, Ashby was not there, but he was later found walking down Mills. Ashby said that he was "going to try and find a phone to call 911." Officer Coburn said that Ashby had "red watery eyes, slurred speech, his balance was unsteady. He had an odor of intoxicants on his breath." Ashby initially denied being the driver of the Montero; but he later admitted to the officer that he was the driver. Ashby also admitted that he had been "drinking intoxicants earlier in that day."

Vicki Disabato, who lives close to the intersection where the accident occurred, testified that she had been on her front porch and witnessed the accident. She saw a vehicle, identified as the Ragons’, at a stop sign and heard another car approaching the intersection at a speed "faster than thirty," which was the posted speed limit. That car, identified as Ashby's, drove around a car and hit the Ragons’ car. Disabato saw Ashby climb out of the passenger side of his car, run to the corner, go back to the car to get something from the back seat, and run away again. She disagreed that the Ragons would have made it across the intersection regardless of Ashby's speeding vehicle. But she agreed that Ashby hit the Ragons.

Shelter moved for a directed verdict during the trial and argued, "[T]here's not any evidence in the record upon which the minds of the jurors could differ on all of the elements of proof." That motion, and its timely renewal, were denied. Shelter also moved for a mistrial about jury instructions related to intoxication. The jury decided the parties’ dispute and, as we have already noted, returned a general verdict awarding damages to the Ragons.

After the circuit court entered a judgment on the verdict, Shelter moved for a new trial and again argued that any indicia of intoxication was improperly admitted as evidence. Shelter also stated that the Ragons had "submitted the testimony regarding Defendant Ashby's alleged alcohol consumption into evidence under an incorrect standard with the intent of not pursuing the related jury instructions in order to prejudice the jury and inflame the jury award." The postjudgment motion was denied. Shelter appealed.

Now Shelter essentially challenges the denial of its motion in limine and the motion for new trial. Although Shelter alleged several bases for relief under Ark. R. Civ. P. 59 in its motion, here it focuses on Rule 59(a)(6), which provides for a new trial if the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. Generally, we will not reverse a circuit court's refusal to grant a motion for new trial unless an abuse of discretion is shown. Sharp Cty. v. Ne. Ark. Planning & Consulting Co. , 269 Ark. 336, 602 S.W.2d 627 (1980). When evaluating the denial of a motion for new trial under Rule 59(a)(6), we will affirm if the circuit court's decision is supported by substantial evidence. Wal-Mart Stores, Inc. v. Tucker , 353 Ark. 730, 120 S.W.3d 61 (2003). Substantial evidence is that which can compel a conclusion one way or the other. Dovers v. Stephenson Oil Co. , 354 Ark. 695, 128 S.W.3d 805 (2003). A jury's verdict should not be disturbed unless there is no reasonable probability that the prevailing party's version of events could have occurred or when fair-minded persons can only draw a contrary conclusion to the verdict. Id.

Shelter argues that the Ragons’ theory of the case was that Ashby acted negligently, and his negligence was due, in whole or in part, to his being intoxicated. Shelter is correct that the only evidence of intoxication was Officer Coburn's testimony. Shelter argues that the "mere fact" that a driver had been drinking alcoholic beverages is not, standing alone, enough evidence of negligence. City of Little Rock v. Cameron , 320 Ark. 444, 447, 897 S.W.2d 562, 564 (1995). More specifically, Shelter cites Cameron (more or less) for the proposition that the Ragons did not establish Ashby's intoxication under Arkansas law; therefore, the jury should not have heard the legally insufficient testimony from Officer Coburn about the topic.

In Cameron , a negligence case, the driver of a vehicle that hit a traffic pole had been drinking. An officer testified that she smelled alcohol on his breath; another officer testified that the driver's blood-alcohol level was .05 percent according to a portable breathalyzer test. After a directed verdict was granted in the driver's favor, the city appealed. The supreme court affirmed the verdict.

The mere fact that Cameron had been drinking alcoholic beverages is not sufficient evidence of negligence, standing alone, for this claim, to withstand a directed verdict. Cameron was not legally intoxicated based on his percentage of blood/alcohol content. But even had he been intoxicated, a distinguished treatise on torts concludes that the fact of intoxication is not negligence in itself , but it must be shown to have caused the actor's behavior to have deviated from that of a reasonable person and to have caused the plaintiff's injuries. In this vein, we have stated that voluntary intoxication may be a factor to be considered by the trier of fact in determining negligence.

Id. at 447, 897 S.W.2d at 564 (internal citations omitted) (emphasis original).

Also, in Wade v. Grace , 321 Ark. 482, 902 S.W.2d 785 (1995), the supreme court affirmed the exclusion of evidence that beer cans were floating in the water after a ski boat collided with a party barge—absent some evidence that the driver of the ski boat was intoxicated. The supreme court affirmed the circuit court's decision to exclude the intoxication evidence because the evidence would have been unduly prejudicial. In Baker v. Trevathan , 2018 Ark. App. 135, 542 S.W.3d 231, a car-accident case, this court held that there was no evidence of Baker's intoxication or impairment...

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    ...trial under Rule 59(a)(6), we will affirm if the circuit court's decision is supported by substantial evidence. Ashby v. Ragon , 2020 Ark. App. 251, at 5, 601 S.W.3d 124, 128. Substantial evidence is evidence that can compel a conclusion one way or the other. Dovers v. Stephenson Oil Co. , ......

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