IN THE COURT OF APPEALS OF IOWA
No. 14-1603
Filed February 10, 2016
IDORENYIN SALAMI,
Plaintiff-Appellant,
vs.
VON MAUR, INC. and SARA WHITLOCK,
Defendants-Appellees.
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Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Idorenyin Salami appeals from the district court’s denial of her motion for
mistrial. AFFIRMED.
Brooke Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C.,
Urbandale, for appellant.
Frank Harty, Debra Hulett, and Ryan W. Leemkuil of Nymaster Goode,
P.C., Des Moines, for appellees.
Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.
Idorenyin Salami appeals from the district court’s denial of her motion for
mistrial, contending defense counsel improperly injected the topic of liability
insurance into the proceedings and the district court’s belated curative instruction
was not a sufficient remedy. Finding no abuse of discretion, we affirm.
I. Background Facts and Proceedings.
Salami brought a race discrimination claim against her employer, Von
Maur, and her supervisor, Sara Whitlock. During voir dire, a potential juror, Mr.
Reynolds, stated that he was in the insurance business and that his firm handled
employee benefit insurance for Von Maur. Mr. Reynolds noted that his company
did not provide “employee practice liability” coverage for Von Maur, but he
viewed the situation as a conflict of interest. Mr. Reynolds was excused from jury
service.
Another potential juror, Mr. Rudd, explained that his company had been
involved in an age discrimination lawsuit. According to Mr. Rudd, his company
had “employment practice insurance.” He continued, “That the thing was settled
for far less than what I would consider a nominal amount of money because
there was no basis to the darn thing at all. And had we not had the insurance,
I’m convinced to this day it would have never proceeded.” Salami’s counsel
asked Mr. Rudd whether it would be “difficult for you to find against Von Maur
because you may kind of consider yourself in the same boat as them.” He
responded, “That’s a possibility.” Salami’s counsel continued questioning
prospective jurors.
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Sometime later, Von Maur’s counsel asked Mr. Rudd if he knew Mr.
Reynolds. The following then occurred:
JUROR RUDD: Yeah, I did actually.
MR. HARTY: I thought you might. I don’t know, several of
you probably. There’s a guy that’s—maybe they don’t watch the
fundraising, you know. You know him. He mentioned something
that you picked up on. There’s no—there’s no employment action
liability insurance involved in this case.
JUROR RUDD: Yes. I just assumed there was because he
mentioned it.
MR. HARTY: He said he didn’t write it.
JUROR RUDD: He didn’t write it, and I just—
MR. HARTY: I wanted to make sure.
JUROR RUDD: The major person that writes our insurance
does not write the policy so I just—
MR. HARTY: So I just want you to know that.
JUROR RUDD: Okay.
MS. TIMMER: Objection.
MR. HARTY: And I want to ask you—
THE COURT: Hold on a second. There’s an objection.
MS. TIMMER: I think it’s improper argument during voir dire
to discuss the status of insurance.
THE COURT: Sustained.
MR. HARTY: Do you have any problem, Mr. Rudd, with the
fact that some of you are going to have to spend over a week and
that we’re going to be tying up this courtroom? And certainly there
are resources because my client wants their day in court. Sara
Whitlock and Von Maur, they want to say, “We’ve been accused of
this. We didn’t do it.” Do you have any issue with that that we’re
here?
JUROR RUDD: No. That we’re here for that period of time?
Yeah, actually I do.
MR. HARTY: You think it should be done sooner?
JUROR RUDD: Yeah. I think. Again, I’m going to tell you
I’m surprised that it’s even reached the jury stage. And now I kind
of understand why.
The parties continued with jury selection. Salami’s counsel ultimately struck Mr.
Rudd.
After jury selection was completed, Salami’s counsel moved for a mistrial
based on defense counsel’s statement regarding insurance. The district court
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invited the parties to brief the issue and informed them it would rule on the
motion the following morning.
The next morning (May 20, 2014), the court issued a ruling denying the
motion for mistrial. While recognizing the general rule that evidence of insurance
coverage is inadmissible, the court’s ruling cited several Iowa cases stating that
the mention of insurance does not necessarily entitle a party to a mistrial.
Rather, the moving party must show prejudice, and the district court found
Salami had not shown prejudice. The court noted the jury would not be
concerned with Von Maur’s ability to pay a judgment.
Salami’s counsel did not propose an immediate curative instruction,
stating a curative instruction would be inadequate and would unnecessarily “bring
the jury back” to the mention of insurance.
Following a six-day jury trial, Salami did request an instruction concerning
insurance. The district court informed the jury in Instruction 21:
In deciding whether or not Defendants are liable in determining
what amounts, if any, to award in damages, you must not consider
whether or not Defendants have insurance that might pay all or part
of your verdict. Whether or not a party has liability insurance has
no relevance.
The jury returned a verdict in favor of Von Maur and Whitlock.
Salami filed a motion for new trial, arguing that the district court abused its
discretion in not ordering a mistrial based on defense counsel’s mention of
insurance during voir dire. The district court denied the motion for a new trial,
writing:
There is no question that defense counsel could have
avoided the situation that gave rise to the mistrial. His questioning
of the jury occurred in the middle of the afternoon after the
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insurance question first arose before the lunch break. If he had
concerns with the statements made by Mr. Reynolds and Mr. Rudd
regarding insurance, he had ample opportunity to raise it with the
court to determine the best means to resolve the concerns. It was
not proper to unilaterally offer substantive information regarding his
client’s insurance status in violation of Iowa R[ule] Evidence 5.411.
Notwithstanding the above, as stated in the ruling on the
motion for mistrial, the standard is whether the moving party has
been prejudiced. For the reasons previously stated in the ruling on
motion for mistrial, the court finds plaintiff was not prejudiced. In
fact, further proceedings of the trial support the original decision to
deny the mistrial. Plaintiff requested a curative instruction that was
adopted as modified by the court. The jury found in favor of
defendants on liability, so there is no issue similar to Morris in
which a low damage award supported the plaintiff’s claim of
prejudice. Plaintiff makes the claim that the jury may have been left
with an impression that the case was meritless, but that claim is
speculative and not based on any evidence or real basis for belief.
Further, the claim is untenable when considering the length of the
trial, the amount and substance of the evidence presented, and the
quality of the attorneys presenting the case. The jury did not find in
plaintiff’s favor, but there is no indication they considered the claims
to be baseless. Finally, Mr. Rudd was not picked for the jury, so
there was no danger that he might re-raise any issues or
implications arising from insurance, and there is no reason to
believe that any of the other jurors broached the topic.
Salalmi appeals.
II. Scope and Standard of Review.
Appellate review of rulings on motions for new trial depend upon the
grounds for new trial asserted in the motion. Hansen v. Cent. Iowa Hosp. Corp.,
686 N.W.2d 476, 480 (Iowa 2004) (internal citations omitted). The district court
has broad discretion in ruling on a motion for new trial. Loehr v. Mettille, 806
N.W.2d 270, 277 (Iowa 2011). A motion for new trial based on discretionary
grounds, such as misconduct by the prevailing party, is reviewed for an abuse of
discretion. Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012). “A court abuses
its discretion when its ruling is based on grounds that are unreasonable or
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untenable.” In re Trust No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).
The “grounds for a ruling are unreasonable or untenable when they are based on
an erroneous application of the law.” Id. A new trial is warranted when “a
different result would have been probable in the absence of misconduct.” Loehr,
806 N.W.2d at 277.
III. Discussion.
Much of the Salami’s appellate argument is premised upon Iowa Rule of
Evidence 5.411, which states, “Evidence that a person was or was not insured
against liability is not admissible upon the issue of whether the person acted
negligently or otherwise wrongfully.” Our supreme court has stated,
The court has recognized three reasons for inadmissibility of
evidence of the existence of insurance. First, the evidence is
ordinarily irrelevant to any issue in the case. Second, it tends to
influence jurors to bring in a verdict against a defendant on
insufficient evidence. Third, it causes jurors to bring in a larger
verdict than they would if they believed the defendant would be
required to pay it. Mihalovich v. Appanoose Cty., 217 N.W.2d 564,
567 (Iowa 1974). These reasons show that the jury is to decide a
case as if the defendant were not insured. The contention has
been forcefully urged in another context that persons should not be
denied property rights because they have purchased insurance
rather than saved the funds which might otherwise have been spent
on premiums. See Rudolph v. Iowa Methodist Med. Ctr., 293
N.W.2d 550, 567 (Iowa 1980) (Reynoldson, C. J., dissenting).
Laguna v. Prouty, 300 N.W.2d 98, 101 (Iowa 1981).
From this premise, Salami argues we must presume she was prejudiced
by Von Maur’s counsel’s statements of a lack of insurance during jury selection,
and thus the district court abused its discretion in denying her motion for new
trial. We disagree for several reasons.
First, we do not presume prejudice. The supreme court wrote,
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We test the court’s denial of these motions [for mistrial and new
trial] under an abuse of discretion standard. The query is whether
the trial court clearly abused its discretion, that is, whether
prejudice resulted from counsel’s mention of [the insurance
adjuster] “Mr. King,” or whether a different result could have been
probable but for the mention of his name. We give extremely
broad, though not unlimited, discretion to a trial court on motions for
mistrial and new trial. This is because we recognize the trial court
is in a better position to appraise the situation in the context of the
full trial.
Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 873-84 (Iowa 1989)
(citations omitted); see also Strain v. Heinssen, 434 N.W.2d 640, 643 (Iowa
1989) (finding trial court “reasonably balanced the questions of relevancy,
probative value and prejudice implicated when the revelation of insurance
coverage is at issue”); Evans v. Howard R. Green Co., 231 N.W.2d 907, 914-15
(Iowa 1975) (stating that under Iowa common law it was “generally improper for
the subject of liability insurance to be raised in any way before the jury,” but
concluding the district court did not abuse its discretion in denying motion for
mistrial).
We also observe the rule cited is a rule of evidence. The general
definition of “evidence,” which is a standard jury instruction and which was given
to the jury in this case:
Evidence is:
1. Testimony in person or by deposition.
2. Exhibits received by the court.
3. Stipulations which are agreements between the attorneys.
4. Any other matter admitted (e.g. answers to interrogatories,
matters which judicial notice was taken, and etc.).
Evidence may be direct or circumstantial. The weight to be
given any evidence is for you to decide.
Sometimes, during a trial, references are made to pre-trial
statements and reports, witnesses’ depositions, or other
miscellaneous items. Only those things formally offered and
received by the court are available to you during your deliberations.
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Documents or items read from or referred to which were not offered
and received into evidence, are not available to you.
The following are not evidence:
1. Statements, arguments, questions and comments by the
lawyers.
2. Objections and rulings on objections.
3. Any testimony I told you to disregard.
4. Anything you saw or heard about this case outside the
courtroom.
Iowa Civ. Jury Instr. 100.4 (emphasis added). Counsel’s statements about
insurance during voir dire are not evidence and the jury was so instructed.
Nonetheless, we acknowledge that the topic of insurance coverage is
generally irrelevant. See Iowa R. Evid. 5.411; Laguna, 300 N.W.2d at 101. And
to highlight that irrelevance, the Iowa courts have been repeatedly advised that a
jury should be instructed that whether a party has any kind of insurance has
“‘nothing whatsoever to do with the issues to be decided.’” Laguna, 300 N.W.2d
at 102 (quoting Price v. King, 122 N.W.2d 318, 323 (Iowa 1963)). The use of just
such an instruction was given here. As we have noted, the court instructed the
jury that whether or not a party has insurance “has no relevance” and could not
be considered. “Jurors are presumed to follow instructions.” State v. Sanford,
814 N.W.2d 611, 620 (Iowa 2012); see also Laguna, 300 N.W.2d at 102 (stating
that where a juror asked the court in the absence of other jurors what part
insurance would play in the jury’s decision and the court informed the juror
insurance had no bearing on the issue, the court does “not assume the jury
disregarded the court’s admonition”). Here, the jury asked no questions of the
court about insurance during the trial or the jury’s deliberations. Cf. Laguna, 300
N.W.2d at 102.
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We note, too, that “the reasons for excluding evidence of the existence of
liability insurance” include the “knowledge of a defendant’s liability insurance may
‘influence jurors to bring in a verdict against a defendant on insufficient evidence
[and may] cause . . . jurors to bring in a larger verdict than they would if they
believed the defendant would be required to pay it.’” Mohammed v. Otoadese,
738 N.W.2d 628, 634-35 (Iowa 2007) (quoting Laguna, 300 N.W.2d at 101). As
stated in Laguna,
the reasons for inadmissibility of evidence of lack of insurance are
not the same. The only common reason is the irrelevance of the
evidence to any issue in the case. Otherwise, when a jury is told
the defendant is not insured, it is told nothing different from what it
is required to assume if it did not know whether the defendant was
insured.
300 N.W.2d at 101. Here, the jury heard only what it was to assume—that the
defendants were not insured. See Laguna, 300 N.W.2d at 102 (“One reason for
this conclusion [that the court did not err in denying a motion for new trial] is that
the court did admonish the jury in this case that it was not to consider the subject
of insurance in its deliberations.”). We do not have a situation where the jury was
misled by trial counsel’s statement. See id. 101.
Finally, the jury did not award any damages to the plaintiff, which negates
the concern that knowledge of insurance or lack thereof affected the amount of
damages. See, e.g., id. (stating knowledge of a defendant’s liability insurance
may “influence jurors to bring in a verdict against a defendant on insufficient
evidence [and may] cause . . . jurors to bring in a larger verdict than they would if
they believed the defendant would be required to pay it”). If the jury, or even one
juror, determined there was no liability because Van Maur had no insurance to
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cover any damages, we would have to conclude the jury or juror clearly failed to
follow the jury instructions. However, we have no basis to reach such a
conclusion absent speculation.
“The rule is: ‘Before a new trial will be granted for misconduct in argument
it must appear prejudice resulted or a different result could have been probable
but for such misconduct.’” Id. at 102 (quoting Rasmussen v. Thilges, 174 N.W.2d
384, 391 (Iowa 1970)); see also Strain, 434 N.W.2d at 643) (finding trial court
“reasonably balanced the questions of relevancy, probative value and prejudice
implicated when the revelation of insurance coverage is at issue”); Evans, 231
N.W.2d at 914-15.
Here, Salami has not established prejudice resulted. The subject was
discussed only briefly during jury selection. The prospective juror involved in the
discussion was struck by Salami. The jury was instructed the attorney’s
statements were not evidence and they “must not consider whether or not”
insurance existed in reaching their verdict. The trial court did not abuse its
discretion in denying the motions for mistrial and new trial. We therefore affirm.
AFFIRMED.