Younts v. Baldor Elec. Co., Inc., 92-207

• Decision Date: 29 June 1992
• Docket Number: No. 92-207,92-207
• Citation: 310 Ark. 86,832 S.W.2d 832
• Court: Arkansas Supreme Court
• Parties: Tom YOUNTS d/b/a Getta Tan, Appellant, v. BALDOR ELECTRIC COMPANY, INC., Spirit Manufacturing Company, Inc., Appellees.

Page 832

832 S.W.2d 832

310 Ark. 86

Tom YOUNTS d/b/a Getta Tan, Appellant, v. BALDOR ELECTRIC COMPANY, INC., Spirit Manufacturing Company, Inc., Appellees.

No. 92-207.

Supreme Court of Arkansas.

June 29, 1992.

James C. Baker, Jr., T. Wesley Holmes, Little Rock, for appellant.

Jacob Sharp, Jr., Brian Allen Brown, Little Rock, for appellees.

NEWBERN, Justice.

This is a products liability case in which the jury returned a $2000 verdict in favor of Tom Younts, the appellant, against Baldor Electric Company (Baldor) and Spirit Manufacturing Company (Spirit), the appellees. Younts argues the Trial Court erred by (1) holding he opened the door for the introduction of evidence of insurance which would be otherwise barred by the collateral source rule, and (2) failing to grant a new trial based on the inadequacy of the damages awarded. We find no abuse of discretion and affirm.

Younts operated a tanning salon and exercise facility known as "Getta Tan" which was located in a renovated mobile home. A fire destroyed the mobile home and its contents. A defective motor in an exercise machine allegedly caused the fire. The motor was manufactured by Baldor and distributed by Spirit.

Younts sued Baldor and Spirit, asserting theories of negligence, strict liability, and breach of express and implied warranty. Younts testified the fair market value of the trailer prior to the fire was approximately $14,000, and the value of the contents in the trailer was estimated to be $29,813.74. He spent $1500 to remove debris from the site and $175 to have trees repaired. He also stated he lost approximately $370 a month in profits, resulting in a total profits loss of $14,430. The total damages amount from the fire was estimated to be $59,918.74. This testimony was undisputed.

During direct examination, counsel asked Younts whether he had been able to reopen his business after the fire. Younts stated, "Haven't been able to afford it." Defense counsel argued during an in camera hearing that this testimony opened the door for him to show Younts had received an insurance settlement. In response, Younts' counsel stated he would proffer evidence that his client was underinsured and honestly could not afford to reopen the business. At the in camera hearing, counsel did not present any proof that Younts was telling the truth when testifying he could not afford to reopen.

The Trial Court ruled Younts' testimony opened the door for defense counsel to question Younts about the $41,500 insurance settlement he had received. The Court reasoned the insurance settlement would show that Younts was substantially made whole and would contradict his testimony that he could not afford to reopen his business. Only after the Trial Court determined the evidence admissible, and upon resumption of the trial before the jury, did Younts explain that even with the insurance proceeds he could not afford to reopen because he owed money on the fire-damaged machinery and could not afford to purchase new machinery on credit.

The jury returned a verdict in Younts' favor of $2000. The verdict form indicates the jury originally awarded $3923.74, but that amount was crossed out. The crossed out amount is approximately the difference between the amount of property damages allegedly sustained and the amount of the insurance settlement. Younts' motion for new trial was denied.

1. Evidence of insurance

We will not reverse a trial court's ruling on the admission of evidence absent abuse of discretion. See, e.g., Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). As a general rule, it is improper for either party to introduce or elicit evidence of the other party's insurance coverage. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). This principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant. Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984).

When a party testifies about his or her financial condition in a false or misleading manner, however, he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule. See, e.g., Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); York v. Young, supra.

It is important to recognize that Younts' testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue. The dissenting opinion seems to conclude as a matter of fact that Younts was telling the truth or that he answered in good faith. We have no way to determine that. Appellate courts do not make those decisions. The important point is that Younts' response that he could not afford to rebuild could very well have been misleading to the jury. In Peters v. Pierce, supra, and in York v. Young, supra, we held that in such a situation the collateral source rule does not prevent introduction of evidence of insurance.

At the hearing on the admissibility of the insurance settlement, Younts' counsel did not proffer Younts' testimony or any other evidence to the Trial Court which might indicate that Younts was telling the truth when testifying he could not afford to reopen his business. Thus, when the evidentiary decision was made, the Trial Court did not have the benefit of evidence in support of Younts' statement. Counsel only stated Younts was underinsured. Even if further testimony had been proffered, we cannot say it would have been improper for the Judge to let the jury decide the issue with all pertinent evidence before it. We certainly cannot hold that the Trial Court abused its discretion in these circumstances.

2. Inadequacy of damages

Younts next contends the Trial Court abused its discretion by not granting a motion for new trial because undisputed testimony showed the damages to be inadequate.

Error in the assessment of the amount of recovery, whether too large or too small, is a ground for new trial even in the absence of other trial error. Ark.R.Civ.P. 59(a)(5); Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985). When the primary issue is the alleged inadequacy of the award, we sustain the trial judge's denial of a new trial unless there is a clear and manifest abuse of discretion. Fields v. Stovall, 297 Ark. 402, 762 S.W.2d 783 (1989). In reviewing this discretion, an important consideration is whether a fair minded jury might reasonably have fixed the award at the challenged amount, here $2000. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).

Although we have no way of knowing for certain, it is apparent that the jury may well have reduced Younts' recovery by the amount he recovered from a collateral source, that is, an insurance policy which belonged to him. That is very troublesome to us as we agree with Younts that he had a "substantive right" not to have his recovery so reduced if indeed he recovered from insurance for which he had paid. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). While Baldor and Spirit do not make the argument, we should mention that nothing in the record before us indicates that Younts requested an instruction to the jury on the collateral source rule.

Other jurisdictions have model instructions to inform the jury of its duty when there is evidence of a collateral source recovery. See, e.g., Wallace v. May, 822 S.W.2d 471 (Mo.App.1991); Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla.App. 4 Dist.1990). Sample or model instructions on the point appear in G. Douthwaite, Jury Instructions on Damages in Tort Actions, §§ 1-17 and 1-18, pp. 40-45 (2d ed. 1988). While we have no such instruction in the Arkansas Model Jury Instructions, Civil, that would not have precluded instructing the jury on the collateral source doctrine, if it had been appropriate to do so, once the evidence of insurance recovery was admitted.

While it is true that Baldor and Spirit offered no evidence disputing Younts' testimony about the extent of his loss and his explanation of his statement that he could not afford to rebuild despite the insurance settlement, we have consistently stated an interested party's testimony is disputed as a matter of law. Gilbert v. Diversified Graphics, supra; Fields v. Stovall, supra. Again, it is for the jury to judge the credibility of witnesses. The jury may not have believed one word of Younts' testimony about being underinsured and indebted on his equipment. We can...