Jenks v. Bertelsen
| Citation | 2004 MT 50,86 P.3d 24,320 Mont. 139 |
| Decision Date | 02 March 2004 |
| Docket Number | No. 02-613.,02-613. |
| Court | United States State Supreme Court of Montana |
| Parties | Robin JENKS and Cathy Jenks, Plaintiffs and Appellants, v. Neil BERTELSEN, Defendant and Respondent. |
For Appellants: Joe Bottomly, Sean Hinchey, and Amy Eddy, Bottomly Law Offices, Kalispell, Montana.
For Respondent: Susan Moriarity Miltko and Scott Corbitt, Williams & Ranney, Missoula, Montana.
¶ 1 The plaintiffs and appellants, Robin and Cathy Jenks (Jenkses), brought a negligence action in the Nineteenth Judicial District Court to recover damages for personal injury from Neil Bertelsen (Bertelsen), defendant and respondent, arising out of an automobile accident. Following a trial and jury verdict, the District Court denied the Jenkses' motion for a new trial. The Jenkses appeal. We affirm.
¶ 2 The following issues are presented on appeal:
¶ 3 1. Did the District Court err in excluding plaintiffs' evidence of dealings with the insurance carrier in response to the defendant's theory that plaintiffs had hired an attorney for the purpose of manufacturing an exaggerated claim?
¶ 4 2. Was the jury's verdict supported by substantial evidence?
¶ 5 The facts regarding the accident were largely undisputed. On November 14, 1998, Robin Jenks was driving his 1989 pickup truck south on Highway 2 near Libby, Montana, with Cathy, his wife, as a passenger. As Robin signaled, slowed, and stopped to make a left hand turn, they were struck from behind by Bertelsen's vehicle at approximately 50 m.p.h. The force of the impact was significant causing extensive damage to the body and frame of the Jenkses' truck, and causing Cathy Jenks's head to strike the rear window of the truck, shattering the glass.
¶ 6 The Jenkses filed a negligence action in the Nineteenth Judicial District Court on November 9, 2000, seeking to recover against Bertelsen for loss of the value and use of their vehicle, medical expenses, pain and suffering, lost wages and costs. Bertelsen admitted liability prior to trial, and the Jenkses' property damage claims for their vehicle were settled before trial. The case proceeded to trial on the sole issue of damages for personal injuries.
¶ 7 The major contested issue at trial involved the nature and extent of Cathy Jenks's claimed soft tissue injury. Plaintiffs presented evidence of treatment by four health care professionals: an emergency room physician, an orthopedic surgeon, a neurologist, and a chiropractor. Defendant presented independent medical evidence (IME) from another orthopedic surgeon, as well as evidence offered by a vocational consultant regarding Cathy Jenks's ability to work in her current employment. The parties disagreed about Jenks's damage claims for past medical expenses, future medical expenses, loss of earnings, and general damage claims. Following a three-day trial beginning January 29, 2002, the jury returned a verdict in the amount of $9,873.00.
¶ 8 On the first day of trial, the defense counsel stated during opening statements that the Jenkses hired an attorney within a week after the accident, which, plaintiffs contend on appeal, impugned them as being litigious. Plaintiffs, however, made no contemporaneous objection nor motion in limine to prevent further such remarks during the course of the trial. Later in the day, during cross-examination, defense counsel again implied that the Jenkses were hasty in hiring an attorney, to which plaintiffs again made neither objection nor motion in limine.
¶ 9 On the second day of trial, plaintiffs made an offer of proof requesting leave of the court to present testimony during Cathy Jenks's redirect examination that the reason the Jenkses hired an attorney so soon was that the defendant's insurance adjuster was being unfair in his valuation of their damaged truck. Plaintiffs asserted that this evidence was necessary to counteract defense counsel's remarks about their hiring of an attorney.
¶ 10 The District Court denied plaintiffs' request to pursue this line of questioning on grounds Rule 411, M.R.Evid., generally prohibits injection of liability insurance into trial proceedings. However, to counteract defense counsel's remarks, the District Court permitted the Jenkses to offer testimony that they hired an attorney because they were having difficulty getting their "transportation problem" resolved, which the Jenkses did.
¶ 11 Following the trial the Jenkses filed a motion for a new trial on two grounds: (1) the District Court erred in not admitting the evidence plaintiffs sought to introduce regarding their reasons for hiring an attorney, and (2) the verdict was not supported by substantial evidence. On April 8, 2002, the District Court denied the motion. Plaintiffs appeal. We affirm.
¶ 12 Questions concerning the admissibility of evidence are within the discretion of the trial court, subject to our review in situations that indicate an abuse of discretion. Newbauer v. Hinebauch, 1998 MT 115, ¶ 15, 288 Mont. 482, ¶ 15, 958 P.2d 705, ¶ 15. A district court has broad discretion to determine whether evidence is relevant and admissible. Lopez v. Josephson, 2001 MT 133, ¶ 14, 305 Mont. 446, ¶ 14, 30 P.3d 326, ¶ 14. The district court's decision whether to grant a new trial is committed to the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of discretion. Newbauer, ¶ 15. Additionally, this Court has consistently held that "parties must make their objections known to the trial court at the time the objectionable conduct or evidence is introduced in order to preserve the issue for purposes of appeal." Cosner v. Napier (1991), 249 Mont. 153, 154, 813 P.2d 989, 990.
¶ 13 Did the District Court err in excluding plaintiffs' evidence of dealings with the insurance carrier in response to the defendant's theory that plaintiffs had hired an attorney for the purpose of manufacturing an exaggerated claim?
¶ 14 The Jenkses argue that the District Court erred in excluding evidence of their dealings with the insurance carrier in response to defendant's remarks that plaintiffs hired an attorney within a week of the accident. The Jenkses contend the defendant's remarks impugned them as being litigious and were so inflammatory and prejudicial as to warrant a new trial. In support of this assertion, the Jenkses cite references to their haste in hiring an attorney made by defense counsel during the trial. On the first day of trial, during defendant's opening statement, defense counsel stated:
This clearly is a case about Ms. Jenks's demand for money ... very shortly after this accident, in fact, less than a week after the accident, Plaintiffs hired an attorney and started preparing for today. Started preparing for this lawsuit.
Plaintiffs, however, made no objection to this comment nor moved in limine to prevent further such remarks. Then, during cross-examination of Cathy Jenks, also on the first day of trial, defense counsel again made reference to the haste in which the Jenkses hired an attorney:
Again, plaintiffs made no objection nor motion in limine. During closing arguments, in attacking the credibility of both Cathy Jenks and the diagnosis of her neurologist, defense counsel argued that the doctor Even to this, the plaintiffs did not object.
¶ 15 Rather than making a contemporaneous objection to defense counsel's "litigious remarks" as soon as the grounds became apparent, the Jenkses submitted an offer of proof on the second day of trial which asserted that these remarks had "opened the door" for them to present testimony that defendant's insurance adjuster was being unreasonable about the damaged truck. The District Court responded by crafting its own remedy to the problem, as it explained in its order denying plaintiffs' motion for a new trial. First, the court condemned the defendant's references to plaintiffs' haste in hiring an attorney:
The Court agrees that it is sharp practice for defense counsel to imply that a plaintiff is greedy because he or she contacted an attorney soon after the event which resulted in the plaintiff's loss. Accident victims should be able to seek legal counsel whenever they feel the need, without fear that their prompt attention to a legal problem will be thrown back in their faces at trial. It demeans our profession to suggest to a jury that there is something nefarious about an injured person promptly seeking out legal representation after an accident.
Then, the court castigated the plaintiffs' failure to object to these comments, or make a motion in limine to prevent any further references by defense counsel to their hiring an attorney, either during the opening statement or during cross examination on the first day of trial, only to later argue that the comments justified introduction of insurance evidence. The court stated, "[Plaintiffs' counsel] cannot be permitted to employ a rope-a-dope strategy, in the expectation that the Court will permit the insurance bulldozer to be brought in to level the playing field."
¶ 16 The court further explained that its remedy provided an adequate mid-trial correction, in light of the errors of both parties. The court's remedy permitted pl...
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