Jones v. Coker
| Decision Date | 02 March 2005 |
| Docket Number | No. CA 04-695.,CA 04-695. |
| Parties | Margie Roxanna JONES, Appellant v. Darrell COKER, Ray Tipton, and Farm Bureau Mutual Insurance Co. of Ark., Inc., Appellees. |
| Court | Arkansas Court of Appeals |
Crisp, Boyd & Poff, L.L.P., by: Mark C. Burgess, Texarkana, for appellant.
Wright, Lindsey & Jennings L.L.P., by: Edwin L. Lowther Jr. and Scott A. Irby, Little Rock, for appellees Darrell Wayne Coker and Ray Tipton.
Friday, Eldredge & Clark, by: William A. Waddell Jr. and Amanda Capps Rose, Little Rock, for appellee Farm Bureau Mut. Ins. Co. of Ark., Inc.
This appeal concerns the admissibility of evidence in appellant Margie Jones's lawsuit against Farm Bureau Mutual Insurance Company of Arkansas, Inc. (Farm Bureau), and two of its agents, Darrell Coker and Ray Tipton, for breach of contract and negligence. Appellant's home was destroyed by fire in December 2001, and Farm Bureau denied the claim because her homeowner's policy had lapsed for nonpayment of premiums. Appellant sued, asserting that she had personally delivered a check to an employee of Farm Bureau for her automobile and homeowner's premiums before the policy lapsed. Appellees defended on the ground that appellant had only paid the automobile, and not the homeowner's, premium. Before trial, the circuit judge denied appellant's motion in limine concerning her prior history of late payments and policy lapses on her automobile and homeowner's policies, and such documentary and testimonial evidence was introduced at trial. The question presented on this appeal is whether the trial judge abused his discretion in admitting that evidence. We hold that he did not and affirm.
Appellant insured her car in 1995 with Southern Farm Bureau Casualty Insurance Company, an affiliate of Farm Bureau. In November 1999, she insured her house at 930 North Corbin Street in Ashdown with Farm Bureau, paying her first year's premium in advance. Appellant did not live at her house; she resided and received her mail at another address in Ashdown. Although her automobile premium notices were sent to the second address after she moved there in 1997, the homeowner's premium notices were sent to the North Corbin address.
Appellant's homeowner's policy lapsed for nonpayment of premiums in November 2000 and was reinstated in February 2001. This policy lapsed again on March 20, 2001, and was again reinstated. On October 23, 2001, appellant went to Tipton's and Coker's office, where she gave a check for $342.63 to an employee. According to appellant, she did not have her premium statements with her and informed the employee that she wanted to pay the premiums for both her automobile and homeowner's policies; although she questioned the low amount, the employee assured her that this amount covered both premiums. As it turned out, this amount was the balance due for only the automobile premium, and appellant still owed the homeowner's premium. Farm Bureau sent a notice of premium due to appellant at the North Corbin address on November 6, 2001, stating that, if she did not pay $70.26, her homeowner's policy would lapse on November 19, 2001. According to appellant, she did not receive this notice. Her policy lapsed for nonpayment of premiums on November 19, 2001. Her house burned on December 22, 2001, and was a total loss.
After Farm Bureau denied her claim on the ground that the policy had lapsed, appellant sued appellees for breach of contract and negligence. Appellees responded that appellant had failed to pay her premiums. Before trial, the judge denied appellant's motion in limine seeking to prevent appellees from referring to her prior delinquent payments, policy lapses, and reinstatements of her automobile and homeowner's policies on the ground that they were not relevant, or if relevant, were unfairly prejudicial. At the hearing on the motion in limine, appellees argued that this evidence was admissible because it related to prior similar occurrences, absence of mistake, and habit under Ark. R. Evid. 404(b) and 406. They asserted that this evidence was relevant to whether appellant had actually received the premium and cancellation notices and whether she had a pattern of permitting her homeowner's policy to lapse and then reinstating it. They also argued that this evidence would counter appellant's claim that she did not receive the notices regarding the last cancellation of the homeowner's policy. The judge stated that it showed a pattern and overruled appellant's objection.
At trial, appellant joined with appellees in introducing Joint Exhibits 1 through 17. These documents included appellant's November 9, 1999 application for homeowner's insurance; her October 22, 2001 check in the amount of $342.63 payable to Farm Bureau (showing the automobile policy number in the memo line); a homeowner's policy renewal notice effective November 9, 2000; a letter dated November 14, 2000, from Farm Bureau reminding appellant of her premium that was due on November 9, 2000; a letter dated October 7, 2000, from Farm Bureau to appellant reminding her of her payment due on November 9, 2000, with an attached renewal notice; an expiration reminder notice dated November 29, 2000, from Farm Bureau to appellant stating that her homeowner's premium due November 9, 2000, had not been paid, that her policy had expired, and that it could be reinstated; appellant's February 1, 2001 application for reinstatement of her homeowner's policy; a notice of premium due on March 3, 2001 on appellant's homeowner's policy; a homeowner's declaration dated March 20, 2001; a March 7, 2001 letter from Farm Bureau to appellant stating that her premium payment had not been received and that her policy would be canceled for nonpayment on March 20, 2001; a March 22, 2001 letter from Farm Bureau to appellant stating that her homeowner's policy had been canceled on March 20, 2001, for nonpayment of premiums; a March 27, 2001 letter from Farm Bureau to appellant stating that the payment she had made was not sufficient and that she owed a minimum of $75.68, due April 19, 2001, to pay her homeowner's premium to August 1, 2001; an April 24, 2001 letter from Farm Bureau to appellant stating that it had not received the $75.68 premium and that her homeowner's policy would be canceled on May 7, 2001; a July 4, 2001 notice of homeowner's premium due on August 1, 2001; an October 4, 2001 notice of premium due on November 1, 2001, on appellant's homeowner's policy; a November 6, 2001 letter from Farm Bureau to appellant informing her that it had not received the premium due and that her policy would be canceled if she did not pay $70.26 by November 19, 2001; a November 7, 2001 certificate of mailing; a November 21, 2001 notice from Farm Bureau to appellant informing her that her homeowner's policy had been canceled on November 19, 2001, for nonpayment of premiums; and a certificate of mailing dated November 21, 2001. These documents demonstrated that appellant's homeowner's policy lapsed for nonpayment of premiums in November 2000; that it was reinstated on February 1, 2001; that the policy again lapsed for nonpayment on March 20, 2001; that it was reinstated again; and that appellant was late in paying the $75.68 due in April 2001.
Appellant testified that she had received her automobile premium notices at her current address and that she did not recall having had any lapses of that policy. She said that, after her homeowner's policy lapsed in November 2000, she asked Farm Bureau to determine why she had not received her statements. She stated that she worked across the street from the Farm Bureau office and would pay her premiums there, writing separate checks for her homeowner's and automobile policies. Appellant also testified about her history of late payments and reinstatements of her homeowner's policy. She said that, in October 2001, she had informed the agency's employee that she needed to make both the homeowner's and automobile payments. She said that she had questioned the low amount stated by the employee and was assured that it covered both the automobile and homeowner's premiums. She also testified that she had asked if she should write two checks and was informed that she could write one.
Appellant called Darrell Coker as a witness. He testified that he had no recollection of appellant's automobile insurance having lapsed. Gayle Holmes, an employee of Farm Bureau, also testified. When counsel for Farm Bureau asked her about whether appellant's automobile policy had ever lapsed, appellant's counsel objected, stating: "I think they're gonna start talking about documents that I have never seen, about a lapse for auto that I have never been provided." Farm Bureau's counsel argued that this evidence was admissible in rebuttal because appellant had "opened the door" about the issue. The judge overruled the objection, and Ms. Holmes testified that, from 1995 until 2002, appellant was late in paying the premiums for her automobile policy fifteen times and had permitted the policy to lapse, with subsequent reinstatement, on one occasion.
In the verdict on interrogatories, the jury found that appellant had failed to prove any of her claims against appellees, and a judgment on the verdict was entered on November 26, 2003. This appeal followed.
Appellant argues that the trial judge erred in permitting the introduction of the evidence about her prior late payments and lapses of her homeowner's and automobile policies. She contends that this evidence was (1) not relevant under Ark. R. Evid. 401 and inadmissible under Ark. R. Evid. 402; (2) not admissible under Ark. R. Evid. 404(b); (3) not admissible under Ark. R. Evid. 406; (4) even if relevant and otherwise admissible, unfairly prejudicial under Ark. R. Evid. 403.
We will not reverse the trial judge's decision to admit or refuse evidence in the absence of an abuse of that discretion and a...
To continue reading
Request your trial
-
Stalter v. Gibson
...error in the circuit court's admission of the evidence. We do not reverse in the absence of a prejudicial error. See Jones v. Coker, 90 Ark.App. 151, 204 S.W.3d 554 (2005). Based on the foregoing, we affirm the circuit court's order and intermediate rulings. Affirmed.ROBBINS and KINARD, JJ.......
-
Johnson v. Windstream Commc'ns, Inc., CV–17–480
...or refuse evidence unless the court has abused its discretion and the appellant shows prejudice. Jones v. Coker , 90 Ark. App. 151, 156, 204 S.W.3d 554, 558 (2005). When a plaintiff is attempting to show pretext in an ADA discrimination claim, one way of doing this is to show that an employ......
-
Howard v. Adams
...on an evidentiary ruling unless a substantial right is affected and the appellant is prejudiced by the ruling. Jones v. Coker, 90 Ark. App. 151, 204 S.W.3d 554 (2005).Gary has not demonstrated prejudice that would require reversal. The circuit judge stated that, even without the benefit of ......
-
Brown v. State
...inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value. Jones v. Coker, 90 Ark. App. 151, 204 S.W.3d 554 (2005). The circuit court has wide discretion in balancing the conflicting interests, and its judgment will be upheld absent a ......