Progressive Direct Ins. Co. v. Stuivenga

• Citation: 276 P.3d 867,364 Mont. 390,2012 MT 75
• Decision Date: 10 April 2012
• Docket Number: No. DA 11–0520.,DA 11–0520.
• Parties: PROGRESSIVE DIRECT INSURANCE COMPANY, Interpleader Petitioner and Plaintiff, v. Casey Michael STUIVENGA, Interpleader Respondent, Defendant and Appellee, and Britni Rose Evans, Interpleader Respondent, Defendant and Appellant.
• Court: Montana Supreme Court

364 Mont. 390
276 P.3d 867
2012 MT 75

PROGRESSIVE DIRECT INSURANCE COMPANY, Interpleader Petitioner and Plaintiff,
v.
Casey Michael STUIVENGA, Interpleader Respondent, Defendant and Appellee,
and
Britni Rose Evans, Interpleader Respondent, Defendant and Appellant.

No. DA 11–0520.

Supreme Court of Montana.

Submitted on Briefs Feb. 15, 2012.
Decided April 10, 2012.

[276 P.3d 868]

For Appellant: Wade J. Dahood, Jeffrey W. Dahood, Knight, Dahood, Everett & Sievers, Anaconda, Montana.

For Appellee: John C. Doubek, Doubek, Pyfer & Fox, LLP, Helena, Montana.

[276 P.3d 869]

Justice JAMES C. NELSON delivered the Opinion of the Court.

[364 Mont. 391]¶ 1 Casey M. Stuivenga and Britni R. Evans were injured in a single-vehicle accident. Stuivenga and Evans were the only occupants of the vehicle—a 2006 Dodge Ram pickup owned by Stuivenga. Stuivenga claimed that Evans was driving at the time of the accident and was liable to Stuivenga for his injuries. Conversely, Evans claimed that Stuivenga was driving and was liable to Evans for her injuries. They both sought proceeds available under a Montana automobile insurance policy issued to Stuivenga by Progressive Direct Insurance Company. The policy's per person liability limit was $25,000. Progressive determined that Evans' and Stuivenga's competing claims could not be settled in an amount equal to or less than this limit.

¶ 2 Progressive commenced an interpleader action in the Third Judicial District Court, Powell County, and deposited the $25,000 with the court pursuant to § 25–8–101, MCA. Progressive asked the court to determine to whom the funds should be issued-Stuivenga or Evans. Ultimately, a jury found that Evans was the driver at the time of the accident. The District Court denied Evans' motion for a new trial and [364 Mont. 392]entered an order releasing the $25,000 to Stuivenga. Evans now appeals.

¶ 3 There are two issues on appeal:

1. Should this appeal be dismissed as moot?

2. Did the District Court manifestly abuse its discretion in denying Evans' motion for a new trial?

We conclude that this appeal is not moot, and we affirm the District Court's order denying the motion for a new trial.

BACKGROUND

¶ 4 The accident occurred October 11, 2008, at around 4:00 a.m. on U.S. Highway 12 between Helena and Garrison. Stuivenga and Evans had attended a bull-riding event in Helena the previous evening and had spent time with friends after the event, and were on their way back to Deer Lodge. Near milepost 10 on Highway 12 (within Powell County), Stuivenga's pickup drifted across the roadway, struck the end of a guardrail on the left-hand side of the road, slid into the ditch, and overturned. The pickup came to rest on the passenger side, at almost a 90–degree angle, in a group of trees. There were no vehicle markings on the roadway indicating corrective or evasive maneuvers; it appeared the driver had simply fallen asleep. Neither Stuivenga nor Evans was wearing a seatbelt. They both survived the accident but were hospitalized for several days.

¶ 5 Evans later recalled that she had been driving Stuivenga's pickup when they departed the Helena area, but she had no memory of the accident. She claimed that she had pulled over to take a nap on the outskirts of Helena, and she had a vague memory of switching positions with Stuivenga (such that he became driver and she became passenger), but she could not recall precisely where and how that transpired. Her first recollection after the accident was of a doctor, nurse, or emergency medical technician (EMT) using scissors to cut off her clothes in order to treat her injuries. But even that memory was foggy, and Evans admitted that she did “not recall most of that time,” including some of the time spent in the hospital. EMT records reflect that Evans was conscious and alert after the accident and may have admitted to being the driver. The preliminary report of the investigating officer identifies Evans as the driver, as do various hospital records. Stuivenga's parents visited Evans in the hospital and later reported that she had apologized to them for the accident and had told them she fell asleep while driving home. Later, however, Evans became convinced that Stuivenga had been driving. About a week after [364 Mont. 393]the accident, she had conversations with the investigating officer and one of her treating physicians, both of whom expressed the view that Stuivenga was the driver. When subsequently questioned by Stuivenga's counsel about her admissions to Stuivenga's parents and about the various EMT and hospital records indicating she was the driver, Evans stated that she could not recall having admitted this to anyone. She opined that if she did tell people that she was the driver, it was because someone had “suggested” it to her and she simply repeated it to others “subconsciously.”

[276 P.3d 870]

¶ 6 Stuivenga did not remember the accident itself. He did recall several surrounding events, however. He remembered that Evans was driving. He reported that he was lying on the pickup seat asleep, with his head toward Evans, when the accident occurred. He stated that when he woke up, the pickup was on its side and he was standing on the inside of the passenger door, leaning against the passenger seat. Evans was lying in the window space of the passenger door next to where Stuivenga was standing. Stuivenga heard Evans shivering and moaning, and he thus placed a blanket over her. He looked around the cab and found a mobile phone. He then crawled out the back window, climbed up to the roadway, and called 911. He tried to flag down three passing motorists, but none of them stopped.

¶ 7 As noted, Stuivenga and Evans made separate claims against Progressive for their injuries. After Progressive deposited the $25,000 per person liability limit in the District Court's registry, the court dismissed Progressive from this action with prejudice. Evans then filed a motion for summary judgment on the question of who was driving the pickup. The District Court denied the motion, observing that the parties had presented conflicting evidence which warranted submission of the question to a jury.

¶ 8 Evans and Stuivenga testified at trial, providing their respective versions of the accident. Each argued to the jury that the other had a motive to deny being the driver. Of relevance to the second issue raised in this appeal, Evans sought to establish that Stuivenga had a special type of automobile insurance which he was required to carry because he had two prior convictions of driving under the influence of alcohol or drugs (DUI). Evans' theory was that the premium for this insurance is “very heavy” and, thus, if Stuivenga “were to have another DUI he might be in a situation where he wouldn't be able to get any insurance. So he had a lot of motivation to try and say that [Evans] was the driver, it wasn't him.”

¶ 9 Stuivenga objected when Evans raised the two prior DUIs during [364 Mont. 394]her examination of him at trial. The District Court held a conference outside the jury's presence to discuss the matter. The court noted that the evidence of the prior DUIs could cut both ways: on one hand it could undermine Stuivenga's credibility by showing he had a motivation after the accident to say that Evans was the driver, but on the other hand it could bolster his credibility by showing he had a motivation before the accident to have Evans do the driving that night (since Stuivenga admittedly had drunk quite a bit during the course of the evening prior to the accident). In any event, the court initially expressed the view that any probative value of the prior DUIs was substantially outweighed by the potentially prejudicial effect. SeeM.R. Evid. 403. After further discussion, however, the court decided to overrule Stuivenga's objection

with the understanding that there is an agreement that there is to be no further mention during the course of the trial of the fact of Mr. Stuivenga's prior DUI's, except for whatever argument there might be during closing argument, which will be limited to the issue of whether Mr. Stuivenga had a motivation to, to say that [Evans] was the driver rather than himself.

The intent and effect of this ruling was to allow Evans to argue, consistently with her counsel's stated purpose for introducing the evidence, that Stuivenga had a motivation to lie, but at the same time to prevent unfair prejudice to Stuivenga.

¶ 10 Separate from the prior DUI convictions, Stuivenga was charged with DUI arising out of the October 2008 accident. Upon motion of the Powell County Attorney, this charge was dismissed with prejudice prior to trial in the instant case. Stuivenga elicited testimony of this fact from Evans during his cross-examination of her, without objection by Evans. During his summation, however, when Stuivenga referred to the dismissed DUI charge, Evans objected that there had been no evidence on this point (an incorrect assertion, given that Evans herself had testified to it) and that any references to DUIs were prohibited by the District Court's earlier ruling (also an incorrect assertion, given that the ruling pertained to prior DUI convictions, not the dismissed 2008 charge). The District Court held a brief discussion at the bench and then stated: “Alright, what

[276 P.3d 871]

I'm going to do is to send you guys back and you'll go on with your closing. And not another word about it.” The court did not specifically sustain (or overrule) Evans' objection. Evans did not request a cautionary instruction to the jury, nor did she request permission to address Stuivenga's remarks in her rebuttal closing argument.

[364 Mont. 395]¶ 11 The jury rejected Evans' claim that Stuivenga had been driving. The jury rendered its verdict on May 24, 2011, declaring that Evans was the driver of the vehicle involved in the accident. Evans filed a motion for a new trial under Rule 59 of the Montana Rules of Civil Procedure. She claimed that Stuivenga had...