Hacker v. Hall, 88-110

• Decision Date: 24 October 1988
• Docket Number: No. 88-110,88-110
• Citation: 296 Ark. 571,759 S.W.2d 32
• Parties: Keith E. HACKER and Zetta Hacker, Appellants, v. Martha HALL, Appellee.
• Court: Arkansas Supreme Court

Page 32

759 S.W.2d 32

296 Ark. 571

Keith E. HACKER and Zetta Hacker, Appellants, v. Martha HALL, Appellee.

No. 88-110.

Supreme Court of Arkansas.

Oct. 24, 1988.

Tom Tatum, Terry Sullivan, Danville, for appellants.

Beverly Rowlett, Little Rock, for appellee.

NEWBERN, Justice.

This is an automobile collision case in which the issue is whether counsel for Martha Hall, the appellee, made improper references to insurance coverage. We hold that he did and that a new trial should have been granted.

Martha Hall drove her car into the rear of a truck being driven by Keith E. Hacker who brought this action to recover for personal injuries sustained in the accident. Zetta Hacker, Keith's wife, joined as a plaintiff seeking damages for loss of consortium. Martha Hall did not contest liability. The Hackers' complaint sought $75,000 for permanent disability and loss of earning capacity incurred by Keith and $5,000 for Zetta's loss of consortium. The jury awarded $3,811.96 for Keith's injuries and nothing for the loss claimed by Zetta.

Keith Hacker's medical bills totalling $7,623.92 were presented. Ms. Hall presented no evidence disputing their reasonableness or connection with the accident. The Hackers also presented evidence by a doctor's deposition that Keith had incurred a four percent permanently disabling injury to his neck. The deposition noted, however, that practically all of the tests administered to Keith Hacker showed no abnormalities.

Keith Hacker testified he lost his job at Burnham Ford, in whose employ he was driving the truck at the time of the accident, due to a personality change resulting from the accident and his subsequent inability to get along with customers. The only evidence presented by Ms. Hall was her own testimony having to do primarily with the minimal nature of the damage to the truck being driven by Hacker and the much greater damage to her car she said was caused by colliding with a bridge abuttment which occurred apparently just after the collision, which caused only minor damage to the truck.

At the conclusion of the cross examination of Mr. Hacker, the following occurred:

BY MR. HUCKABAY [counsel for Ms. Hall]:

Q. Although you had no camera with you, how long was it after the accident that you employed Tatum and Sullivan [counsel for the Hackers]?

A. It was a couple of weeks.

* * *

Q. Why did you employ a lawyer so fast?

A. Because the insurance company kept harassing me.

Q. Which one?

A. State Farm.

Q. The one from State Farm or the one with Burnham?

A. No, State Farm.

Q. Oh, okay.

No objection was made by counsel for the Hackers to the questions elaborating on insurance coverage and expanding Mr. Hacker's reference by mentioning Burnham Ford's insurer.

During direct examination of Ms. Hall, the following occurred:

BY MR. HUCKABAY, (Cont'd)

* * *

Q. Now, you have insurance with State Farm, don't you?

A. I did have at that time.

Q. And you had Twenty-five Thousand Dollars ($25,000.00) worth of coverage, right?

A. Yes, sir.

Q. Anything above that, you have to pay for, right?

A. Right.

Counsel for the Hackers moved for a mistrial on the ground that it was improper for counsel to mention insurance coverage. The motion referred to both the questioning of Keith Hacker and the "intentional" reference during Ms. Hall's testimony. Mr. Huckabay argued that Keith Hacker was the first to mention insurance and that his questions were thus proper. The court stated that it was Mr. Huckabay's questions which had "opened the door" rather than Mr. Hacker's testimony. The court also offered to admonish the jury to disregard the testimony but commented that it probably would not do any good. Counsel for the Hackers agreed it would not help. The motion was taken under advisement and then renewed at the end of the trial in conjunction with the motion for a new trial. The new trial motion was based on the misconduct of counsel and inadequacy of damages. See Ark.R.Civ.P. 59(a)(2) and (5).

We agree with Ms. Hall's argument that a jury is not bound to award damages in the amount of the plaintiff's medical bills just because they are undisputed. Where the argument is only that the jury verdict was too small because the unrebutted proof showed expenditures related to, and made necessary by, the defendant's negligence, and the trial court denies a new trial, we affirm absent a showing of a clear and manifest abuse of discretion. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). In this case, however, there is a specific argument as to the cause of the allegedly inadequate verdict, that is, the misconduct of Ms. Hall's counsel in mentioning insurance coverage. Rule 59(a)(2) provides for granting a new trial because of "misconduct of the jury or prevailing party." Misconduct of the "prevailing party" includes misconduct of the prevailing party's attorney. City of Cleveland v. Peter Kiewit Sons Co., 624 F.2d 749 (6th Cir.1980); Brown v. Royalty, 535 F.2d 1024 (8th Cir.1976); 6A, J. Moore, J. Lucas, and G. Grothers, Jr., Moore's Federal Practice, § 59.08 , (2d ed. 1987). Cf. New Amsterdam Cas. Co., v. Harrington, 274 F.2d 323 (5th Cir.1960).

The mentioning of insurance in a case like this is forbidden unless it is relevant to an issue being tried. Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984); Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). In York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), we approved the introduction of insurance because the plaintiff was trying to use the rule against mentioning insurance as a shield to permit him to lie to the jury about his inability to pay expenses which had already been paid, but that was not the case here. When Mr. Hacker said, in response to cross examination, he sought counsel shortly after the accident because he was being harassed by the insurance company, Mr. Huckabay could have stopped there or gone on to something else. Instead, he asked "which one," thus implying that more than one insurer was involved. He then went even further and made it clear to the jury that an insurer for Mr. Hacker's former employer, Burnham Ford, might have been involved. That raised before the jury the spectre of Mr. Hacker seeking to be compensated both by Burnham Ford's insurer, possibly by way of workers' compensation benefits, as well as by Ms. Hall. We agree with the trial court's conclusion that it was these questions which "opened the door" to discussion of insurance rather than the testimony of Mr. Hacker. We also agree that an admonition to the jury probably would not have cured the error. Where the reference to insurance is made intentionally, refusal of the court's offer to admonish the jury does not waive the error, Pickard v. Stewart, supra. Even if there had been a waiver of the error, we would still conclude a new trial should be granted due to the...