Todd v. Joyner

• Decision Date: 27 November 2007
• Docket Number: No. 4315.,4315.
• Parties: Frances Irene TODD, Appellant, v. Barbara C. JOYNER, Respondent.
• Court: South Carolina Court of Appeals

685 S.E.2d 613

385 S.C. 509

Frances Irene TODD, Appellant, v. Barbara C. JOYNER, Respondent.

No. 4315.

Court of Appeals of South Carolina.

Submitted October 1, 2007.

Decided November 27, 2007.

Withdrawn, Substituted, and Refiled January 18, 2008.

Gene M. Connell, Jr., of Surfside Beach, for Appellant.

Linda Weeks Gangi, of Conway, for Respondent.

PER CURIAM.

Frances Irene Todd appeals several evidentiary rulings of the trial court as well as the trial court's denial of her motion for a new trial nisi additur. We affirm.¹

FACTS

On September 4, 2002, Todd and Barbara C. Joyner were involved in an automobile accident in Georgetown, South Carolina. As a result of injuries sustained in the accident, Todd brought this action. Joyner stipulated to her negligence in the case.²

On February 27, 2006, Joyner made Dr. Richard J. Friedman available for deposition as an expert in the field of orthopedic surgery. Friedman was not available to testify live at the trial, and a redacted version of his deposition was read into evidence. During the deposition, Todd questioned Friedman extensively about his private practice, the amount of his practice Friedman devoted to testifying as an expert witness, and the percentage of his income that came from testifying as an expert in an average year.

Friedman could not recall specifics in his responses at the time of the deposition, and Todd subsequently subpoenaed records from State Farm Insurance Company regarding payments made to Friedman. The records showed payments of between $50,000 and $60,000 to Friedman for the calendar years 2003 through 2005. The trial court denied their admission into evidence because of the prejudicial impact of injecting insurance into the proceeding.

Additionally, Todd objected to Friedman's use of Todd's medical records as the foundation of his testimony as well as Friedman's occasional reference to those records in his deposition. The trial court overruled this objection. Finally, Todd attempted to introduce, through cross-examination, a covenant not to execute entered into by Todd and State Farm. The trial court denied the covenant's introduction. The jury awarded Todd $37,191.11, the exact amount of her medical bills. Todd made a timely motion for a new trial nisi additur. The trial court denied the motion, and this appeal followed.

LAW/ANALYSIS

I. Admission of Evidence of Expert's Connection to State Farm

Todd maintains the court improperly excluded evidence of the prior payments State Farm made to Friedman, which would be evidence of bias in favor of the defendant.³ We disagree.

The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Conner v. City of Forest Acres, 363 S.C. 460, 467, 611 S.E.2d 905, 908 (2005). "An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion without evidentiary support." Id.

Historically, South Carolina restricted the admission into evidence of defendants' insurance against potential liability in an action for damages before a jury. Dunn v. Charleston Coca-Cola Bottling Co., 311 S.C. 43, 45, 426 S.E.2d 756, 757 (1993). The reasoning behind this rule was to avoid prejudice in the verdict, which might result from the jury's knowledge that insurance, and not the defendant, would be responsible for paying any resulting award of damages. Id. at 45, 426 S.E.2d at 757-58. However, "Rule 411 modified this rule by providing that the admissibility of evidence of insurance depends upon the purpose for which such evidence is introduced." Yoho v. Thompson, 345 S.C. 361, 365, 548 S.E.2d 584, 585 (2001). Rule 411 of the South Carolina Rules of Evidence provides:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Because Joyner stipulated to negligence, the records were not being offered to show that she was at fault. Rather Todd sought to use them to discredit the defense expert's testimony.

In Yoho v. Thompson, 345 S.C. 361, 365-66, 548 S.E.2d 584, 586 (2001) the court explained if Rule 411 does not require the exclusion of the insurance evidence, and we find in this case it does not, the court must then consider whether the probative value of the evidence substantially outweighs its prejudicial effect and any potential confusion for the jury under Rule 403. In order to accomplish this analysis, South Carolina has adopted the "substantial connection" test to determine whether an expert's connection to a defendant's insurer is sufficiently probative to outweigh the prejudice to the defendant resulting from the jury's knowledge that the defendant carries liability insurance. Id. at 366, 548 S.E.2d at 586 (citing Bonser v. Shainholtz, 3 P.3d 422 (Colo.2000); Mills v. Grotheer, 957 P.2d 540 (Okla.1998)). The substantial connection test has been adopted by a majority of the jurisdictions that have addressed this issue and is based upon the degree of connection between the expert and the insurance company. Id.

The court in Yoho did not articulate a defined test, but instead described the characteristics present in the case that led it to the conclusion a substantial connection existed, and ultimately that the evidence of bias should come in. These characteristics included: (1) the expert maintained an employment relationship with insurance companies; (2) the expert consulted for the insurance company in question in other cases and gave lectures to its agents and adjusters; (3) ten to twenty percent of the expert's practice consisted of reviewing records for insurance companies; and (4) the expert's yearly salary was based in part on his insurance consulting work. Id. Further, the Yoho court specifically found the expert "was not merely being paid an expert's fee in this matter." Id.

The trial court distinguished Yoho from this case in several important aspects. First, the court found it significant the expert in Yoho was present for live testimony during the trial. This allowed the expert to be confronted about his connection to the insurance industry, instead of merely submitting an itemized list of payments into evidence. As described above, Friedman was not available for cross-examination at trial. Friedman could have been cross-examined with the records at his deposition, but Todd had not acquired the records at that point in time. We also note Friedman's bias was presented for the jury's consideration as his deposition testimony was read into the record. This recitation included the extensive cross-examination by Todd bringing out the issue of potential bias. As a result, the actual record of payments became less probative.

Next, the circuit court did not feel Friedman's relationship with State Farm rose to the level described in Yoho because the only available evidence of his connection to State Farm was an itemized list of payments totaling between fifty and sixty thousand dollars over the course of three years. The court found significant that no witnesses, including the two State Farm employees Todd called, could explain why these payments to Friedman were made. The combination of these factors led the circuit court to conclude "the prejudicial effect of injecting this insurance information into this case greatly outweighs the probative value because ... there's no opportunity to really do anything probative with this information; and it's really open to great latitude for abuse." We find the circuit court did not abuse its discretion in so holding.

II. Covenant Not to Execute

Todd next contends the circuit court erred in refusing to admit into evidence the covenant between Todd and State Farm. We disagree.

Todd relies upon the lone South Carolina decision addressing the admissibility of a covenant not to execute, Poston v. Barnes, 294 S.C. 261, 363 S.E.2d 888 (1987). In Poston, the plaintiff was injured when another driver struck a school van in which the plaintiff was a passenger. The plaintiff, driver defendant, and the defendant's insurance company entered into a covenant not to execute. Id. at 263, 363 S.E.2d at 889. This covenant limited the defendant driver's liability for damages, while requiring her to remain a codefendant, along with the school district, outwardly still subject to joint and several liability. Id. at 265, 363 S.E.2d at 890. The court found the covenant was a facade, and the failure to disclose it to the jury tainted the judicial process. Id.

[T]he jury was denied information to which it was entitled as to the sources of remuneration available to the plaintiff and by whom such remuneration would be paid. The fact that the agreement was not disclosed to the jury in this instance facilitates inequity and injustice in the judicial process.... Under the circumstances of this case, the agreement should have been allowed into evidence to insure that an equitable verdict was reached. Id.

We find this case readily distinguishable from Poston. Todd and Joyner were both insured by State Farm. Todd entered into a covenant not to execute whereby she agreed not to execute against Joyner's personal assets and to take her recovery from Joyner's $25,000 liability policy, which was tendered, and Todd's own underinsured coverage. So, at trial, Todd was essentially proceeding against her own insurance company. Since naming the insurer is impermissible in this type of action, Joyner was the sole remaining party who could serve as the named defendant. The primary circumstance that compelled the admission of the covenant into evidence in Poston, i.e., the possibility of jury confusion due to multiple parties defendant, is simply not present here.

Todd's...