Stone v. Stakes

• Decision Date: 21 June 2001
• Docket Number: No. 11A05-0008-CV-349.,11A05-0008-CV-349.
• Citation: 749 N.E.2d 1277
• Parties: William STONE, Appellant-Defendant, v. Barbara STAKES, Appellee-Plaintiff.
• Court: Indiana Appellate Court

749 N.E.2d 1277

William STONE, Appellant-Defendant, v. Barbara STAKES, Appellee-Plaintiff.

No. 11A05-0008-CV-349.

Court of Appeals of Indiana.

June 21, 2001.

Robert R. Foos, Jr., Marc Lloyd, Indianapolis, IN, Attorneys for Appellant.

Robert Hunt, Terre Haute, IN, Attorney for Appellee.

OPINION

ROBB, Judge.

Barbara Stakes sued William Stone for injuries she sustained in an automobile accident. The case was submitted to a jury, and the jury returned a verdict in favor of Stakes in the amount of $25,000. Stone now appeals. We affirm.

Issue

Stone raises a single issue for our review, which we restate as whether the trial court properly denied his motion for mistrial when the plaintiff's counsel informed the jury pool during voir dire that the firm representing him was the "Litigation Section" of an insurance company.

Facts and Procedural History¹

On July 29, 1996, an automobile in which Stakes was a passenger was struck by an automobile operated by Stone. Stakes initiated a lawsuit against Stone for injuries she sustained in the accident.² Stone failed to file an answer or other responsive pleading, and Stakes made a motion for default judgment. The trial court granted the motion for default and entered judgment for Stakes. Thereafter, Stakes moved for a hearing on damages. A jury trial on the issue of damages was scheduled. Mr. Robert Foos of "Conover & Foos" filed an appearance on behalf of Stone and filed a pre-trial motion in limine seeking to exclude, among other things, any reference at trial to the fact that Stone "carried liability insurance through any carrier for any reason...." R. 49. This motion in limine was granted "with the exception of Voir Dire." R. 83.

The morning of trial, Mr. Marc Lloyd filed an appearance on behalf of Stone which gave his address as "Conover & Foos Litigation Section of Warrior Insurance Group, Inc." R. 84. Jury selection began with Stakes' counsel introducing himself and his client and asking if any of the prospective jurors knew him, his client, or members of his law firm.³ He also introduced Stone's counsel by saying, "Mr. Stone is appearing here today by his attorney from Indianapolis, Marc Lloyd. He is with the firm of Conover and Foos of the Warrior Insurance—litigation section of the Warrior Insurance Group." R. 146. Lloyd objected, and his objection was overruled. Stakes' counsel asked if any of the prospective jurors knew Mr. Lloyd, any member of his firm, or if they had "any interest in or affiliation with [Gallant] Insurance Company or the Warrior Insurance Group?" R. 147.

When Stakes' counsel completed his portion of the voir dire, Stone's counsel asked to approach the bench and "moved for mistrial and the striking of the jury due to [Stakes'] counsel[`s] statement relative to insurance." R. 127.⁴ Stone's motion was overruled, and the trial proceeded on the issue of damages. The jury returned a verdict in favor of Stakes in the amount of $25,000. Stone now appeals.

Discussion

Stone contends that the trial court erred in denying his motion for mistrial where the plaintiff, by introducing his counsel to the jury pool as a member of the litigation section of an insurance company, impermissibly made reference to the fact that Stone carried liability insurance.

I. Standard of Review

The trial court's determination of whether to grant a mistrial is afforded great deference on appeal because the trial court is in the best position to evaluate the relevant circumstances of a reference and its impact on the jury. City of Indianapolis v. Taylor, 707 N.E.2d 1047, 1058 (Ind. Ct.App.1999), trans. denied. To prevail on appeal from the denial of a motion for mistrial, the movant must demonstrate that the statement in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Id. However, mistrial is an extreme remedy to be granted only when no other less drastic measure can rectify the perilous situation. Id. We determine the gravity of the peril by the probable persuasive effect of the misconduct on the jury's decision rather than by the degree of impropriety of the conduct. Id.

II. Reference to Insurance

Our supreme court has long held that evidence that a defendant has insurance is not allowed in a personal injury action and that its admission is prejudicial. Rausch v. Reinhold, 716 N.E.2d 993, 1002 (Ind.Ct.App.1999),trans. denied. See Pickett v. Kolb, 250 Ind. 449, 237 N.E.2d 105, 107 (1968); Martin v. Lilly, 188 Ind. 139, 121 N.E. 443, 445 (1919). Normally, when inadmissible evidence of insurance coverage is interjected into a trial, it is within the trial court's discretion to withdraw the case from the jury or admonish the jury. Duke's GMC, Inc. v. Erskine, 447 N.E.2d 1118, 1120 (Ind.Ct.App.1983). The rationale for not allowing evidence regarding insurance is that if the jury becomes aware of the fact that the defendant carries liability insurance and will not bear the brunt of any judgment, the jury may be prejudiced in favor of an excessive verdict.⁵Rust v. Watson, 141 Ind.App. 59, 76, 215 N.E.2d 42, 51 (1966). On the other hand, if the jury becomes aware of the fact that the defendant does not have insurance and will bear the entire burden of any judgment, the jury may be prejudiced in favor of a minimal verdict. Strand v. Pedersen Bros. Co., 140 Ind.App. 621, 623, 224 N.E.2d 689, 690 (1967).

A. Waiver of Claim

We first address Stakes' contention that Stone has waived the issue of the improper injection of information about insurance. The parties agree that at a sidebar conference during voir dire, counsel for Stone moved for a mistrial and asked that the jury be stricken. This motion was denied. Stakes contends that in addition to moving for a mistrial, Stone should have asked that the jury be admonished or tendered an instruction directing the jury to disregard any reference to insurance. We acknowledge the case law which would suggest that the remedy for the improper interjection of insurance into a trial is to seek an admonishment or tender an instruction. See Duke's GMC, 447 N.E.2d at 1121 ("[I]f the trial court does not admonish the jury regarding the interjection of insurance and an admonition is deemed necessary by the injured party, then an instruction should be tendered."); Clouse v. Fielder, 431 N.E.2d 148, 153 (Ind.Ct. App.1982) ("When inadmissible evidence of insurance coverage is interjected into a trial, the trial court may withdraw the case from the jury or admonish the jury."). Stakes asserts that Stone's failure to request an admonishment waives any error. However, Stone's counsel asserted at oral argument that to request such an admonishment or instruction would only emphasize the reference and compound the error. Because Stone did make a motion seeking a remedy, albeit a drastic remedy, for the allegedly improper reference, we decline to decide this case on the basis of waiver, and turn instead to the merits.

B. Interjection of Insurance

The crux of Stone's argument is that he was prejudiced by Stakes' reference to insurance during voir dire because the jury verdict may have been compromised or somehow influenced by the disclosure. It is important to note at this juncture the precise timing of the reference. The reference was made during voir dire, while the parties were questioning the prospective jurors, and not made during the trial itself. The trial court is afforded broad discretion in regulating the form and substance of voir dire examination. Antcliff v. Datzman, 436 N.E.2d 114, 121 (Ind.Ct.App.1982). The purpose of allowing voir dire examination of prospective jurors is to permit the rational exercise of the rights of challenge, peremptory and for cause. FMC Corp. v. Brown, 551 N.E.2d 444, 447 (Ind.1990). The motion in limine filed by Stone in this case with respect to insurance was granted with the specific exception of voir dire. Stone does not contend that there is any error in allowing Stakes' counsel to question the prospective jurors about any interest they might have in Warrior Insurance Group or Gallant Insurance Company. Stone's allegation of error rests solely on Stakes' identification of Stone's attorneys as members of the Conover and Foos Litigation Section of the Warrior Insurance Group during voir dire. He alleges that the identification "immediately implies to the jury that the Defendant was covered by liability insurance," which is not relevant to the issues in this case and is prejudicial to Stone. Brief of the Appellant at 11. He argues that Stone was prejudiced by the reference to insurance, such prejudice being shown by the verdict rendered by the jury. At trial, Stakes introduced evidence of $4,170.85 in medical expenses and $1, 289.00 in incidental expenses. The jury verdict was in favor of Stakes in the amount of $25,000. Stone contends that not only was this verdict excessive in light of the evidence, but it is also the amount of the minimum liability coverage in this state.⁶

As stated above, it is generally true that allowing evidence of liability insurance to be interjected into a personal injury action is error. Evidence Rule 411 states that "[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully." However, this "does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as ... ownership, or control, or bias or prejudice of a witness." Evid. R. 411. Although Rule 411 is an evidentiary rule not strictly applicable to voir dire, it provides some guidance in this area regarding what categories of inquiry are acceptable. Rule 411 does not limit the allowable evidence regarding insurance only to financial interest, but also allows evidence going to bias or prejudice. Thus, a question regarding a juror's relationship, financial or otherwise, with a specific...