Martinez v. State Farm Mutual

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11158

Summary Calendar

TAM T. MARTINEZ,
FLOYD MARTINEZ;
Plaintiffs-Appellants,

versus
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY;
Defendant-Appellee.

Appeal from the United States District Court
For the Northern District of Texas
(3:96-CV-0969-P)

June 26, 1998

Before HIGGINBOTHAM, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiffs Tam and Floyd Martinez appeal from an adverse jury

verdict on their insurance coverage claim against defendant State

Farm Mutual Automobile Insurance Co. The plaintiffs contended that

the negligence of an underinsured driver was the proximate cause of

their injuries, and they sought benefits under the underinsured

motorist provision of their State Farm insurance policy. The jury

concluded that the underinsured motorist was negligent, but it

found that this negligence was not the proximate cause of the

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
plaintiffs’ injuries. The plaintiffs raise a variety of issues on

appeal.

The plaintiffs first contend that the district court erred in

admitting as impeachment evidence a surveillance videotape of Tam

Martinez, offered by State Farm to impeach her testimony that the

accident gave her serious physical injuries. The videotape

apparently came into existence within 30 days before trial and was

not produced to the plaintiffs. Under the Federal Rules of Civil

Procedure, impeachment evidence need not be produced to the

opposing side. See Fed. R. Civ. P. 26(a)(3). There is some

question as to whether this evidence also went to the substance of

the plaintiffs’ claims. Cf. Chiasson v. Zapata Gulf Marine Corp.,

988 F.2d 513 (5th Cir. 1993). Regardless of whether the district

court erred in admitting this evidence, however, the plaintiffs

must still demonstrate that the erroneously admitted evidence

affected their substantial rights. See Great Plains Equip. v. Koch

Gathering Sys., 45 F.3d 962, 967 (5th Cir. 1995). Here, assuming

the evidence went to the plaintiffs’ damages, the admission of the

evidence is irrelevant, for the jury never reached the damages

issue. See id. Rather, the jury found that the negligence of the

underinsured driver was not the proximate cause of the accident;

the videotaped evidence therefore was irrelevant to the jury

verdict and no substantial right of the plaintiffs was affected by

the trial court’s evidentiary ruling.

The plaintiffs also contend that the district court erred in

dismissing their negligence per se claim upon State Farm’s motion.

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Yet the plaintiffs never pled this theory of liability, so the

district court did not abuse its discretion in refusing to submit

it to the jury. See Morris v. Homco Int’l, Inc., 853 F.2d 337, 342

(5th Cir. 1988). The plaintiffs failed to object to the district

court’s separation of the negligence and proximate cause issues in

its jury charge. Although it may not be standard practice to

separate these issues, this separation did not constitute plain

error. Furthermore, we find from Diana Blythe’s testimony that

there was sufficient evidence from which the jury could have

concluded that the accident was the fault of Tam Martinez.

Accordingly, the district court did not abuse its discretion in

denying the plaintiffs’ motion for a new trial.

AFFIRMED.

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