Reno v. Erickstein

• Decision Date: 29 March 1984
• Docket Number: No. 83-414,83-414
• Citation: 209 Mont. 36,679 P.2d 1204,41 St.Rep. 537
• Parties: Charles Thomas RENO and Karyn L. Reno, Plaintiffs and Appellants, v. Thor O. ERICKSTEIN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 1204

679 P.2d 1204

209 Mont. 36

Charles Thomas RENO and Karyn L. Reno, Plaintiffs and Appellants, v. Thor O. ERICKSTEIN, Defendant and Respondent.

No. 83-414.

Supreme Court of Montana.

Submitted on Briefs Dec. 22, 1983.

Decided March 29, 1984.

Richter & Associates, Frank C. Richter, Billings, for plaintiffs and appellants.

Moulton, Bellingham, Longo & Mather, Brent Cromley, Billings, for defendant and respondent.

GULBRANDSON, Justice.

Plaintiffs Charles and Karyn Reno appeal from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying their motion for a new trial in a personal injury suit against defendant Thor Erickstein. For reasons stated below, we affirm the order of the District Court.

Charles and Karyn Reno were injured when the car in which they were riding was struck on October 31, 1982, by a vehicle driven by the defendant, Thor Erickstein. The defendant admitted liability shortly after the plaintiffs filed suit. The trial was confined to the issue of damages. Plaintiffs each sought $130,000 for pain and suffering, $2,103.60 for present medical expenses, $2,500 in future medical expenses, $16,058 for income lost by both plaintiffs, and $2,160 for cost of a rental vehicle. An unspecified sum in lost future wages was also claimed. Defendant paid the present medical expenses plus $3,312.75 for repairs to plaintiffs' car prior to trial, but contested the other amounts claimed as damages.

Shortly before the start of trial in May, 1983, plaintiffs' attorney objected to defense counsel's motion in limine to prevent mention of insurance matters during trial. Plaintiffs were apparently intent upon pursuing a bad faith action against the defendant's insurance company. The court reminded plaintiffs' attorney that the immediate complaint was against defendant on the issue of damages caused by his negligence, but offered to continue the proceedings to allow joinder of the insurance company. Plaintiff's counsel apparently elected to proceed against the defendant alone.

The case was heard before a jury. Plaintiffs testified as to their injuries, as did a physician and a chiropractor. Other witnesses testified in support of claims for lost income and car damage. Defendant also called an expert medical witness in support of his challenge to the extent of plaintiffs' injuries. After deliberations, the jury returned a verdict awarding plaintiffs $5000 in damages. The District Court entered judgment in that amount.

Plaintiffs moved for a new trial, alleging that "inflammatory" remarks made by defense counsel to the jury during closing arguments and the inability to present evidence of the insurance company's bad faith unjustly prejudiced their case. After a hearing and upon submission of briefs, the motion was denied. Plaintiffs appeal from the order denying a new trial.

Plaintiffs present three issues for this Court's consideration:

(1) Whether portions of defense counsel's final argument to the jury were in violation of defense counsel's own motion in limine concerning mention of insurance, because of counsel's alleged reference to defendant's supposed lack of liability insurance?

(2) Whether the trial court's Jury Instruction No. 15 improperly alluded to a lack of insurance coverage?

(3) Whether the trial court improperly excluded evidence of alleged bad faith activity by defendant's insurance company?

Pursuant to Rule 14, M.R.App.Civ.P., defendant asks this Court to decide whether evidence of unemployment compensation awarded Charles Reno prior to the first trial should be admitted in the event a new trial is ordered. A motion to admit such evidence was denied by the trial judge during the first trial. Because of our disposition of this appeal, we need not address defendant's issue.

Although plaintiffs' main goal in this appeal is procurement of a new trial in the District Court, their theories in support of this goal are mutually exclusive. Issues One and Two turn on whether the trial proceeded contrary to the court's order forbidding mention of insurance. Issue Three, on the other hand, involves an attempt to nullify the court's order granting the motion in limine. Although this approach is purely strategic, with the obvious aim of obtaining a new trial on any one issue, we find that under no circumstances are plaintiffs entitled to a new trial.

Plaintiffs' first ground for new trial is based on nine alleged references by defense counsel to the defendant's supposed lack of insurance coverage, a violation of the trial court's order granting a motion in limine and Rule 411, Mont.R.Evid. We note, however, that at no time immediately preceeding the delivery of these allegedly impermissible references did plaintiffs' counsel interpose an objection. We find that this failure to object is fatal to the success of plaintiffs' argument on appeal.

In Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835, we emphasized the importance of immediate objection to erroneous interjection of insurance matters. In that case, the plaintiff inadvertently referred to insurance during his testimony. Nevertheless, defendants did not object to this admission. After the jury returned a verdict in favor of plaintiffs, defendants moved for a new trial because of the previous mention of insurance. The trial court granted the motion, but this Court reversed, holding that:

"... by his failure to object, ask for an admonition by the court to the jury to disregard plaintiff's testimony, move for a mistrial, or request a corrective jury instruction, defendant waived any objection he otherwise might have had to plaintiff's testimony and is estopped from raising this for the first time on motion for a new trial.

"...

"Here there was no objection or motion to strike the testimony, no request for admonition by the court, no motion for mistrial, and no request for a corrective jury instruction. Briefly stated, defendant did nothing. In so doing defendant took a calculated risk. He knew the words had been uttered. He knew that no issue had been raised thereon. He knew that the jury had not been admonished or instructed to disregard this testimony; and he knew that his case was being submitted to the jury on this basis. Under these circumstances, defendant's failure to object or request corrective action constituted a waiver of objection on this issue. It cannot be urged for this first time upon motion for a new trial following an adverse jury verdict. [Citations omitted.] To hold otherwise would not only put the trial court in error on an issue which had not been presented to it for ruling, but would permit a litigant to submit his case to the jury for a possible verdict in his favor, and in the event he was unsuccessful, would permit him another determination by another jury." 153 Mont. at 294-95, 456 P.2d at 840-41.

See also Klaus v. Hillberry (1971), 157 Mont. 277, 485 P.2d 54. Accord, Causey v. Cornelius (1958), 164 Cal.App.2d 269, 330 P.2d 468. See generally Annot., 40 A.L.R.Fed. 541, 570-71 (1978) (failure to object to impermissible references to insurance amounts to waiver of objection); Annot., 2 A.L.R.2d 761, 820-21 (1949) and Later Case Service (1971 and Supp.1983) (failure to object to prejudicial references to insurance amounts to waiver of objections).

Plaintiffs' counsel admits that he did not interpose objections. Nevertheless, he maintains that the alleged errors are reviewable under the "plain error" doctrine. Rule 103(d), Mont.R.Evid., provides that, notwithstanding the requirement of Rule 103(a)(1) concerning timely objections or motions to strike, a trial or appellate court is not precluded from "taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court." See also Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169. Plaintiffs insist that the allegedly objectionable references to lack of insurance were so clearly prejudicial as to compromise their substantial rights. We disagree.

This Court is not sympathetic to a broad definition of "substantial rights." The Montana Commission on Rules of Evidence has emphasized that the plain error doctrine "will be used in exceptional cases and should not be relied upon by counsel." Commission Comments, Rule 103(d), Mont.R.Evid. (1977). Indeed, in Halldorson, supra, we held that "the [plain error] exception will not be applied where the failure or refusal to raise the issue in the trial court was conscious and intentional on the part of trial counsel." 175 Mont. at 174, 573 P.2d at 172. To hold otherwise would so liberalize the plain error doctrine as to effectively negate the substance of the remainder of Rule 103.

Courts have typically confined the scope of the plain error doctrine to criminal cases, because the right to life and liberty is unquestionably substantial or fundamental. M. Graham, Handbook of Federal Evidence Section 103.9 (1981); 5 Am.Jur.2d Appeal and Error Section 549 (1962 & Supp.1982) (citing cases). "Plain error" generally involves an act or omission of a more serious nature than "reversible error," and only on rare occasion is the former doctrine invoked in civil cases. Graham, supra. A review of federal court decisions construing Rule 103(d), Fed.R.Evid., which is identical to the Montana rules, confirms this observation. In the following civil cases, the courts have declined to extend the plain error doctrine to errors normally reversible but not objected to by counsel during trial: Dignataro v. Blackburn (4th Cir.1983), 12 Fed.Rules Evid.Serv. 1539 (failure to object to exclusion of legally acceptable videotape testimony crucial to plaintiff's civil rights action); Adams v. Brown & Root, Inc. (5th Cir.1983), 688 F.2d 410 (failure to object to evidence of widow's remarriage); O'Toole v. Arlington Trust Co. (1st Cir.1982), 681 F.2d 94 (failure to object to otherwise inadmissible corporate documents crucial to establishing...