Kurtz v. Squires

• Decision Date: 29 October 2008
• Docket Number: No. 24692.,24692.
• Citation: 757 N.W.2d 407,2008 SD 101
• Parties: Susan Jean KURTZ, Plaintiff and Appellee, v. Aaron Lee SQUIRES, Defendant and Appellant.
• Court: South Dakota Supreme Court

757 N.W.2d 407

2008 SD 101

Susan Jean KURTZ, Plaintiff and Appellee, v. Aaron Lee SQUIRES, Defendant and Appellant.

No. 24692.

Supreme Court of South Dakota.

Argued on August 27, 2008.

Decided October 29, 2008.

N. Dean Nasser, Jr. of Nasser Law Offices, PC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

Eric C. Schulte, Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] Aaron Squires appeals a jury verdict that found him liable to Susan Kurtz for damages resulting from an automobile accident. We affirm.

[¶ 2.] On August 24, 2001, Squires rear-ended Kurtz. Although Squires admitted that he was negligent and that Kurtz was not contributorily negligent, he denied that the collision resulted in any injury to Kurtz. Kurtz, however, claimed that the collision caused her permanent injuries consisting of persistent severe neck and shoulder pain and constant headaches that often became unmanageable and frequently required chiropractic treatment. A jury found Squires liable to Kurtz in the amount of $100,000. Squires moved for a new trial. The circuit court denied the motion. Squires appeals and raises three issues.

ISSUES

1) Whether the circuit court abused its discretion by denying the motion for a new trial because the subject of liability insurance was raised in voir dire.

2) Whether the circuit court abused its discretion by overruling Squires' chain of custody objection to the bumper cover.

3) Whether the circuit court abused its discretion by curtailing Squires' ability to inquire into Kurtz's previous claim of permanent disability.

[¶ 3.] The three issues that Squires raises on appeal all involve an abuse of discretion standard of review. "We review denials of motions for a new trial under an abuse of discretion standard." City of Brookings v. Ramsay, 2007 SD 130, ¶ 14, 743 N.W.2d 433, 438 (citation omitted). "We afford broad discretion to [circuit courts] in deciding whether to admit or exclude evidence." State v. Packed, 2007 SD 75, ¶ 24, 736 N.W.2d 851, 859 (citations omitted). "However, `[w]hen a [circuit] court misapplies a rule of evidence, as opposed to merely allowing or refusing questionable evidence, it abuses its discretion.'" Id. (quoting State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996))). "Although we have repeatedly invoked stock definitions, the term `abuse of discretion' defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable." Arneson v. Arneson, 2003 SD 125, ¶ 14, 670 N.W.2d 904, 910 (citation omitted).

ANALYSIS

Subject of Liability Insurance Raised in Voir Dire

[¶ 4.] First, Squires claims that he should have been granted a new trial because the subject of liability insurance was injected into the trial during voir dire in violation of a motion in limine. Prior to trial, the circuit court granted Squires' request for an order in limine requiring: "[Kurtz], her counsel, and all witnesses, to refrain from making any reference to the fact that Defendant may be insured against liability." See also SDCL 19-12-13 (stating generally that evidence of a party's liability insurance status "is not admissible upon the issue whether he acted negligently or otherwise wrongfully"). During voir dire, Squires made two motions for mistrial. Squires claimed that Kurtz had violated the order by erroneously discussing liability insurance. The circuit court denied both motions. After the jury returned a verdict adverse to Squires, he moved for a new trial based on these same complaints.

[¶ 5.] Mention of insurance arose when Kurtz's counsel initially asked jurors if they had any preconceived notions about whether a particular type of car accident would produce large or small injuries. Counsel's question followed the remarks of a medically trained juror who opined that patients quite often exaggerate the severity of their injuries. A different juror, in response to counsel's inquiry, explained that she had been at fault in what she considered a minor accident that resulted in injuries to the 16-year-old driver of the other car. She explained that she originally questioned the legitimacy of the other driver's injuries but ultimately changed her mind when the injuries resulted in surgery. The juror interjected that "they had settled out of court." Kurtz's counsel then asked the juror, "Okay. So how did you feel about them having settled that on your behalf?" The juror answered that she was glad she did not have to go to court. Kurtz's counsel followed up, "[a]nd were you glad in your case that somehow through your company that helped you with it you were made accountable to take care of this boy."

[¶ 6.] Later in voir dire, Kurtz's counsel again generally asked the jurors' opinions concerning accountability, and the difficulty of holding sympathetic persons accountable, such as children. One juror responded as follows: "There are so many variables. What is her background? What is her insurance? What is his insurance? We should take into account everything they've taken into consideration for being responsible too." Kurtz's counsel then asked the circuit court if he wanted to address the juror's response. The circuit court then gave the following admonition:

Yes. Ladies and Gentlemen of the Jury, whether or not a party has insurance against liability is completely irrelevant to any issue in this case. You should not consider it at all. You are to decide this case based solely upon the evidence that is received here in open court under the instructions given by the [c]ourt as to the law. And whether or not a party has insurance is irrelevant and should not be considered by you.

Kurtz's counsel concluded voir dire with a general question to the jurors if they had any other responses or concerns. The juror, who had previously explained that her accident was settled out of court, volunteered additional information about the driver who had been injured, his surgery, and her ultimate conclusion that he had been injured. Kurtz's counsel then asked, "You felt the need to be accountable when you realized that this was a real injury?" She answered, "yeah." Counsel concluded his voir dire by asking the jurors, "Do you feel it's all right when you make a mistake to step up to the plate? Okay."

[¶ 7.] Squires argues that the circuit court should have granted a new trial because of the queries of Kurtz's counsel. Squires claims that counsel's follow up questions and comments to jurors were cleverly veiled attempts to link defendant's personal accountability to the existence of insurance coverage and the insurance companies' accountability. Squires argues that "whether one is `glad' that his `company' `made him feel accountable' or `stepped up to the plate' or would have felt `bad' if the person was `not accountable' simply should play no role in voir dire." Squires further argues that this line of questioning is unrelated to a juror's ability to be impartial and injects prejudicial concepts into the trial process. Specifically, Squires argues that counsel's questioning violated the court's order forbidding reference to defendant's liability insurance.

[¶ 8.] In Atkins v. Stratmeyer, we said, "`[s]tatements of witnesses implying that the defendant carried liability insurance, not responsive to questions asked but in the nature of voluntary statements that could not have been anticipated, are not deemed to be reversible error if they are excluded from consideration by the jury under proper instructions of the court.'" 1999 SD 131, ¶ 13, 600 N.W.2d 891, 896 (quoting Schuetzle v. Nash-Finch Co., 72 S.D. 588, 594, 38 N.W.2d 137, 140 (1949)). Here, the circuit court consistently sustained Squires' objections and admonished the jury that insurance was "irrelevant" and "should not be considered." We have consistently "presume[d] that juries understand and abide by instructions." Gettysburg Sch. Dist. 53-1 v. Helms & Assoc., 2008 SD 35, ¶ 11, 751 N.W.2d 266, 271 (citation omitted). The record also reflects that the circuit court was concerned that counsel had "gone too far" with some of the questioning and admonished counsel. The circuit court, however, denied a motion for mistrial. The circuit court acknowledged that "most people are aware of [insurance]" and that he "[did] not believe that the inquiry has gone so far as to unfairly taint these jurors." The circuit court noted that "[b]ased upon the responses that I heard in the courtroom I believe the jury has indicated that they are prepared to listen to this case and to decide this case based upon the evidence and the law given to them under the instructions of the [c]ourt."

[¶ 9.] In denying the motion for new trial, the circuit court reasoned that the jurors' spontaneous references to insurance did not "arise during the evidence portion of the trial," they were entirely unrelated to the questions asked by Kurtz's counsel, and "[n]one of the references to liability insurance were the result of an intentional or even negligent attempt by counsel to inject the issue of liability insurance into the proceeding." The circuit court found "nothing to indicate bad faith on the part of Plaintiff's counsel or any attempt or design by Plaintiff's counsel to advise the jury that an insurance company was defending the Defendant." The circuit court further found that Kurtz's counsel's follow-up questions of the juror were a "legitimate and good faith effort to ascertain whether or not [the juror] could be fair and impartial in light of her prior experience." Finally, the court concluded, based on its observation of the voir dire and the trial, that Squires received a fair trial and that the jury's verdict was not the result...