No. 81-494
I N T E SUPREME COURT O F THE STATE OF MONTANA
H
1982
DANIEL M. SIOUX,
P l a i n t i f f and C o u n t e r c l a i m E e f e n d a n t
and Respondent,
CLIFFORD T . POWELL,
Defendant and C o u n t e r c l a i m P l a i n t i f f
and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f B i g Horn, The Honorable
R o b e r t H. Wilson, judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
R i n n a r d & Woodward; Dave K i n n a r d , B i l l i n g s , Montana
F o r Respondent :
P a u l M. Warren, B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : A p r i l 1 5 , 1982
Decided: J U ~ Y 8 , 1982
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
The respondent in this appeal is Daniel M. Sioux (Sioux)
who at trial was the plaintiff and counterclaim defendant.
The appellant is Clifford T. Powell (Powell) who at trial was
the defendant and counterclaim plaintiff. After a jury
trial, judgment was entered in the Thirteenth Judicial
District, Big Horn County, in favor of Sioux awarding him
$20,000, and against Powell on the counterclaim. From
judgment Powell appeals raising the following issue:
Did the District Court err in allowing Sioux to testify
that he did not have insurance?
We vacate and remand.
During the afternoon of September 26, 1979, Sioux was
driving his 1979 Chevrolet one-ton truck south on Montana
highway 314. The weather conditions were clear, and it had
not rained in several days. Due to the dry conditions, the
gravel road subjected vehicles travelling on it to a great
deal of dust. Sioux was following a bookmobile and a pickup.
The pickup passed the bookmobile, which increased the amount
of dust, and it was suddenly out of this dustcloud that
Sioux saw Powell's vehicle coming toward him.
Powell was travelling north on his way to Colstrip. He
saw the pickup pass the bookmobile and then entered the
resulting dustcloud. At approximately the same time as his
vehicle cleared the rear of the bookmobile, he saw the Sioux
vehicle coming toward him with no time to avoid it.
Following the head-on collision, both Sioux and Powell
were transported by ambulance to the Sheridan, Wyoming,
hospital for treatment. Sioux was treated for a broken nose
and Powell for a broken hip and other minor injuries.
Sioux claimed damages including loss of earnings because
he was unable to.use his truck, which he used for the hauling
of coal. Powell counterclaimed.
Prior to the commencement of the trial, counsel for
Sioux indicated to the court in chambers that he intended to
introduce evidence to the effect that Sioux did not have
insurance to cover the accident. He claimed to offer this
evidence on the basis that the defense would surely raise
the issue of mitigation of damages and that he should be
entitled to introduce evidence of non-insurance in rebuttal.
He argued that "jurors who live in the State of Montana and
who are required to have insurance on their vehicles are
going to wonder why he did not purchase a new truck with the
insurance money he got." The court allowed testimony concerning
an attempt to purchase insurance so that Sioux could explain
why he did not replace the truck and mitigate damages.
Out of the presence of the jury, the court stated:
"The Plaintiff has raised the issue to the
Court about the admissibility of the plain-
tiff's testimony concerning the fact that he
did not have insurance on his pickup at the
time it was destroyed or damaged extensively
in this accident, and he is concerned about
the effect that that may have on the issue
of mitigation of damages, if he is not allow-
ed to explain why he did not replace the
pickup. The Court has considered that issue
and will allow the Plaintiff to testify very
briefly on that point to explain his position
on it. I don't want you to go into it at
length or make another big side issue on this
case over it but I will allow the Plaintiff
to explain briefly to the jury that he thought
he had insurance, it ended up the insurance
company didn't think so and he has got that
problem, but in any event so wasn't about to
replace it. I think he is entitled to do
that on mitigation, and the record will show
that that's over the objection of the defen-
dant as I understand from previous discussion."
During the trial, Sioux was the first witness to testify.
During direct examination, the following questioning occurred:
"Q. Now Danny, I direct your attention to
September 26, 1979. Had you been using that
truck for approximately a week before that
time?
"A. Yes.
"Q. Did you in approximately a week before
that time call an insurance agency in Forsyth,
Montana?
"A. Yes.
"Q. And you did that by telephone, did you
not?
"A. Yes.
"Q. And as a result of that phone call did
you understand yourself to be insured, your
new 1979 Chevrolet truck to be insured?
"A. Yes.
"Q. And at a later time the insurance company
denied that, did they not?
"A. Yes?"
Sioux disclosed that he did not have any insurance on his
truck -- not ohly th&t he did not have insurance with which
to repair the truck.
Rule 411 of the Montana Rules of Evidence provides:
"Liabilitv insurance. Evidence that a person
-
was- - -not insured against liability is
- or was
not admissible upon the issue whether he acted
negligently or otherwise wrongfully. This
rule does not require the exclusion of evi-
dence of insurance against liability when
offered for another purpose, such as proof of
agency, ownership, or control, or bias or pre-
judice of a witness. (Underscoring added.)
"Commission Comments. The primary reasons for
exclusion of evidence of insurance are its
irrelevance, prejudicial effect, and potential
misuse by the jury."
Sioux contends that it was proper to admit the evidence that
he was not insured under the second sentence of the rule in
that it was "offered for another purpose."
The insurance evidence that Sioux wanted dealt with
insurance coverage to repair his own truck. This type of
insurance is generally known as collision insurance. The
Montana statutes do not require a vehicle owner to carry
this type of insurance nor is it referred to in the rules of
evidence statutes. A vehicle owner is required to carry and
the rules of evidence refer to only liability insurance.
Section 61-6-103, MCA; Rule 411. During Sioux's testimony,
it was not only disclosed that he did not have collision
insurance but also that he did not have liability insurance.
No argument was made that there was any basis for disclosing
that Sioux did not have liability insurance. Introduction
of evidence of liability insurance is generally not admissible
under Rule 411 or under Montana case law. State ex rel.
Hereim v. District Court (1969), 154 Mont. 112, 460 P.2d
755; D'Hooge v. McCann (1968), 151 Mont. 353, 443 P.2d 747;
Watkins v. Williamson (1957), 132 Mont. 46, 314 P.2d 872.
None of the exceptions in Rule 411 apply here.
Injection of the fact that a defendant is protected by
liability insurance has ordinarily been held to constitute
reversible error. "Under Montana law it is not permissible
to convey to the jury in a tort action that a defendant is
protected by liability insurance. . . Ordinarily injection
of the fact that defendant is protected by liability insurance
into such a case, directly or indirectly, by evidence,
argument, or remarks constitute reversible error." D'Hooge,
151 Mont. at 359-360, 443 P.2d at 750; Avery v. City of
Anaconda (1967), 149 Mont. 495, 428 P.2d 465.
In Avery, the jury was made aware that the defendant
carried liability insurance. This Court in reversing the
case, stated:
"[Ilt is apparent that much prejudicial matter
was called to the attention of the jury. Of
- -
course, no one can say how much, if any, effect
this matter did have upon the minds of the
jury when considering their verdict. We are
convinced that enough prejudicial matter found
its way to the jury to justify the belief that
the result may have been affected thereby. The
cause should be tried - - orderly and legal
in an
manner - -
and inaccordance with recoanized rules
-- 2
of court -
-- - procedure. In order that that end
may be achieved a new trial will be necessary."
Avery, 149 Mont. at 499, 428 P.2d at 467.
The first sentence of Rule 411 specifically excludes
evidence not only of the existence but also of the nonexistence
of insurance against liability. Injection of the fact that
a party was not protected by liability insurance has also
been held in other jurisdictions to constitute reversible
error. Rojas v. Vuocolo (1944), 142 Tex. 152, 177 S.W.2d
962; Haid v. Loderstedt (1957), 45 N.J. Super. 547, 133 A.2d
655; Million v. Rahhal (Okla. l966), 417 ~ . 2 d
298.
In Million, 417 P.2d at 300, the Oklahoma court stated:
"The prejudice created by a showing of the
absence of insurance is likely to be great-
er than when the existence of insurance
coverage is shown. Sympathy is one of the
most controlling of human emotions. In City
- - Cordell v. - [389 P.2d 1031, this
of New - Lowe
court said:
"'Such information encourages sympathy for
a party who presumably has no way of being
reimbursed for his loss than by a favorable
verdict. ' "
The court went on to state:
"There is no way to probe the minds of the
jurors and determine the effect the remark
of plaintiff that he had no insurance
covering the loss had upon the thinking of
the jury. It could well have been the fac-
tor which tipped the scales in favor of plain-
tiff. Such information could have easily
caused the jury to be sympathetic toward the
plaintiff feeling there was no way he could
be reimbursed for his loss except by securing
a verdict against the defendants. The error
cannot be corrected by requiring a remittitur
and the only way to alleviate the harm done
to the defendant by the prejudicial remark
of the plaintiff is to direct a new trial of
this case." Million, 417 P.2d at 301.
We hold that the admission of evidence showing that the
plaintiff Sioux was not insured was improper and constitutes
reversible error. Evidence of the absence of insurance can
be as prejudicial as evidence of the presence of insurance.
As a result of this evidence, the jury in the present case
could have concluded that Sioux was unable to purchase a new
truck and mitigate his damages and also could have concluded
that he would be unable to pay for repairs on his truck if
the judgment were against him, and last that Sioux would not
be able to pay a judgment against him if he lost on the
counterclaim by the defendant. Because we are unable to
determine the effect given by the jury to the prejudicial
insurance evidence, the judgment for the plaintiff is vacated,
and the case is remanded to the District Court for a new
trial.
We Concur: A A
a 4 4,Fkw 4
Chief Justice