Precision Elec., Inc. v. Ex-Amish Specialties, Inc.

• Decision Date: 23 April 2013
• Docket Number: No. WD 75529.,WD 75529.
• Citation: 400 S.W.3d 802
• Parties: PRECISION ELECTRIC, INC. and JD Builders, Inc., Respondents, v. EX–AMISH SPECIALTIES, INC., Appellant.
• Court: Missouri Court of Appeals

400 S.W.3d 802

PRECISION ELECTRIC, INC. and JD Builders, Inc., Respondents,

v.EX–AMISH SPECIALTIES, INC., Appellant.

No. WD 75529.

Missouri Court of Appeals, Western District.

April 23, 2013.

William D. Rotts, Columbia, MO, for respondents.

Andrew W. Bach, Ashland, MO, for appellant.

Before Division One: GARY D. WITT, Presiding Judge, THOMAS H. NEWTON, Judge and MARK D. PFEIFFER, Judge.

GARY D. WITT, Judge.

Precision Electric, Inc. (“Precision”), JD Builders, Inc. (“JD”) and Ex–Amish Specialties, Inc. (“Ex–Amish”), each leased office space in a building which was jointly owned by the individual shareholders of these three companies through a partnership. The building had two additional tenants who had no ownership interest in the building and who are not a part of this litigation. A fire broke out that destroyed the building and caused each business to incur substantial losses to the personal property located therein. Precision and JD (collectively, “PJD”) filed suit against Ex–Amish alleging that the fire was started in the office of Ex–Amish through the negligence of one of its employees and that Ex–Amish was liable for PJD's losses as a result. Following trial in the Boone County Circuit Court, the jury found liability in favor of Defendant Ex–Amish on all four counts. Plaintiffs PJD filed a Motion for a New Trial which was granted by the trial court because the issue of insurance was introduced into the trial. Defendant Ex–Amish timely appeals the trial court's grant of a new trial. For reasons explained more fully below, the trial court's grant of a new trial is reversed and the judgment of the trial court based on the jury's verdict is reinstated.

Factual and Procedural Background

In the early morning hours of September 20, 2006, a fire broke out in a commercial building located at 600 Hillsdale in Columbia, Missouri. The nine-thousand square foot building contained six office suites as well as warehouse and storage space. The owner of JD, David Green (“Green”) went to work early that morning and discovered the building on fire. The fire department responded, but the building and contents were almost a total loss. Green called the other building owners, Emmanuel Burkholder (“Burkholder”), owner of Ex–Amish, and Todd Noordsy (“Noordsy”), owner of Precision Electric, who arrived shortly thereafter. Also present on the scene was the Assistant Fire Marshall for the City of Columbia, Lieutenant Debbie Sorrell (“Sorrell”).

Sorrell questioned each owner as to who had last been in their office space prior to the fire being discovered. Burkholder stated that one of his employees, Gideon Yoder (“Yoder”) had been present in his business the previous day after 5:00 p.m. doing some welding work. Burkholder then called Yoder, who was working at a nearby job site, to come back to the office site and speak to Sorrell. Yoder told Sorrell that he welded a handle back onto a tool and that he did so outside of the building. He also explained that he first ground parts of the tool with a grinder on the welding table, located inside the office space.¹ Fire inspectors also investigated other potential causes of the fire and accessed the scene multiple times. Ultimately, however, Sorrell filed a report stating that the cause of the fire was undetermined. ²

Precision and JD filed suit against Ex–Amish seeking damages and alleging that the fire started in the office of Ex–Amish as a result of Yoder's welding. At the pretrial conference, motions in limine were argued, including Ex–Amish's motion to exclude any references to liability insurance. PJD argued that references to insurance should come into evidence to show why insurance investigators came to the scene thirteen days after some owners had already removed damaged and salvageable items from their businesses. They also argued that the insurance they wanted to discuss was not the liability insurance carried by the defendant, but the comprehensive insurance carried by the plaintiffs themselves. PJD asserted that they specifically wanted to be able to explain the actions of Noordsy so that he would not appear to be in violation of the fire department's instructions not to disrupt the fire scene while it was being investigated.³ PJD stated that although case law states that liability insurance “is not supposed to be in our case ... insurance references used for any other reason are admissible because it's part of the facts and circumstances of the case.”

PJD argued that “summarily granting the rule that liability insurance is not admissible in the case” is a concern because “what we're dealing with here is not liability insurance ... It's comprehensive insurance that my clients had and their own company wanting to explore notions of liabilityby using their own investigators.” PJD argued specifically for the admission of the fact that PJD carried comprehensive insurance. PJD further argued that whatever money they receive is going back to their insurance companies and that PJD's owners would have “no problem identifying that [they are] here on a subrogation case.” PJD contended that they would like to testify that they didn't know that insurance investigators were being sent because they “didn't know how this works.” PJD also stated that it “was completely comfortable not mentioning” the liability insurance carried by Ex–Amish as long as its own insurance coverage could come in to explain why insurance investigators were on the scene thirteen days after the fire. Ex–Amish stated that it was still its preference and position that no insurance be mentioned in the case. The trial court ruled that if the fire investigator does not mention insurance, it stays out, other than the standard insurance question posed to the jury panel during voir dire. The court then stated that follow-up questions could come in if insurance investigators were mentioned, unless an innocuous answer was given. The court suggested that the parties work on a stipulation stating that the fire investigators who arrived on the scene were not hired by any of the parties without mentioning insurance. No such stipulation was ever offered.

At trial, plaintiffs each testified, inter alia, that there was nothing in their office spaces that could have caused a fire.

During the trial, references to insurance occurred on three separate occasions. The first instance occurred on the direct examination by Ex–Amish's counsel of the defendant, Burkholder:

Q: Well, if what we've heard in the trial up until this point is correct, that the Ex–Amish suite was completely destroyed, why would you even bother messing with this stuff?

A: You could tell by pulling things out which—which tools there was. So we brought them out and the insurance—the— they wanted to see— or I wanted to see and make a list of every one of different tools to replace them, so I could lay them out to see.

Counsel for PJD made no objection to the word “insurance,” and Burkholder's direct examination continued and ended without another insurance reference.

The second reference to “insurance” was made by PJD's counsel. In his cross-examination of Burkholder, PJD's counsel asked the following question:

Q: You testified earlier your insurance investigator came and you spread your stuff out for him?

A: That's not correct.

At this time, Ex–Amish asked to approach and reiterated its objection to anything related to liability insurance. Ex–Amish further asserted that Burkholder's earlier reference did not open the door to references to liability insurance. Obviously, PJD's counsel did not object to this reference to insurance since he was the one who asked a question regarding insurance. The trial court replied as follows:

Court: I don't think it opens the door. I think it gave [PJD's counsel] an opportunity to ask that question. I'm not going to let him go anywhere with it. But the fact of it is he opened the door. He's got a right to the answer. He didn't dwell on it, so don't dwell on it.

Burkholder then answered:

A: I'm not understanding your question.

Q: Let me ask it again. You indicated earlier in your testimony that you laid all your equipment out, you pulled it out so the insurance investigator could look at it. Did you think that was the end of it?

Burkholder's response to this question did not refer in any way to “insurance.”

The third time the word “insurance” was referenced occurred again during PJD's cross-examination of Burkholder. Once again, PJD made no objection to the reference to insurance:

Q: Even today after hearing all of the evidence, did I hear you express your opinion that the welding did not cause the fire?

A: I can't say that it did.

Q: Do you have in your opinion a reasonable degree of certainty as to what, in fact, caused the fire?

A: I do not.

Q: You consider it all then to be an open question? A: You could say that.

Q: Okay. So of course, if it's an open question, you feel like you have no financial responsibility in this outcome, the loss of your neighbors' properties?

A: (Cough) Excuse me. Sorry. Each one had their own insurance, and I thought that was each one's responsibility. I had—certainly I had my own insurance, and we also had the building insurance and that was a company building. And each one had their own insurance for their—each tenant had their own insurance. And that was— I was— I guess I wasn't smart enough to know that I was responsible for everybody else. I had no idea.

Q: So in your opinion, after that fire, it was every man for himself? Look out for number one; nobody else.

A: That's not what I stated. I lost a great deal in that, probably— I don't even want to go into how much, but it was way greater than I can recover.

Q: Would it amaze you to hear that your neighbors did not have full insurance to cover their losses? Would that amaze you?

A: I did not have, so no, it would not amaze me.

Q: You did have insurance. You said so.

At that point, Ex–Amish's counsel asked to approach the bench and...