NO. 83-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
1934
CHARLES T O . V . RE140 and
HJv1S
KARYN L. RENO,
Plaintiffs and Appellants,
THOR 0. ERICKSTEIN,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Richter & Associates; Frank C. Richter, Billings,
Montana
For Respondent:
Paoulton, Bellingham, Longo & Plather; Brent Cromley,
Billings, Montana
-
Submitted on Briefs: December 22, 1983
Decided: March 29, 1984
Filed:
MAK 2 9 19014
Mr. J u s t i c e L.C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.
Plaintiffs Charles and Karyn Reno appeal from an
order of the District Court of the Thirteenth Judicial
D i s t r i c t , Y e l l o w s t o n e C o u n t y , d e n y i n g t h e i r m o t i o n f o r a new
trial in a personal injury suit against defendant Thor
Erickstein. For r e a s o n s s t a t e d below, we a f f i r m t h e o r d e r
of t h e D i s t r i c t Court.
C h a r l e s a n d K a r y n Reno were i n j u r e d when the car in
w h i c h t h e y were r i d i n g w a s s t r u c k o n O c t o b e r 3 1 , 1 9 8 2 , b y a
vehicle driven by the defendant, Thor Erickstein. The
defendant admitted liability shortly after the plaintiffs
filed suit. The t r i a l was c o n f i n e d t o t h e i s s u e o f d a m a g e s .
Plaintiffs each sought $130,000 for pain and suffering,
$2,103.60 for present medical expenses, $2,500 in future
medical expenses, $16,058 for income lost by both
plaintiffs, and $ 2 , 1 6 0 for c o s t of a rental vehicle. An
unspecified sum in lost future wages was also claimed.
Defendant paid t h e p r e s e n t medical expenses p l u s $3,312.75
for repairs t o p l a i n t i f f s ' car prior t o t r i a l , but contested
t h e o t h e r amounts c l a i m e d a s damages.
Shortly before the start of trial in May, 1983,
p l a i n t i f f s ' a t t o r n e y objected t o defense counsel's motion i n
limine t o prevent mention of insurance m a t t e r s during t r i a l .
P l a i n t i f f s were a p p a r a n t l y i n t e n t u p o n p u r s u i n g a b a d f a i t h
a c t i o n a g a i n s t t h e d e f e n d a n t ' s i n s u r a n c e company. The c o u r t
reminded p l a i n t i f f s ' attorney that the immediate c o m p l a i n t
was a g a i n s t d e f e n d a n t on t h e i s s u e o f d a m a g e s c a u s e d b y h i s
negligence, but offered t o continue the proceedings t o allow
joinder of the insurance company. Plaintiff's counsel
a p p a r a n t l y e l e c t e d t o proceed a g a i n s t t h e defendant alone.
The case was heard before a jury. Plaintiffs
testified as to their injuries, as did a physician and a
chiropractor. Other witnesses testified in support of
claims for lost income and car damage. Defendant also
c a l l e d an e x p e r t medical w i t n e s s i n s u p p o r t of h i s c h a l l e n g e
t o t h e e x t e n t of p l a i n t i f f s ' injuries. After deliberations,
the jury returned a verdict awarding p l a i n t i f f s $5000 in
damages. The District Court entered judgment in that
amount.
Plaintiffs moved for a new trial, alleging that
" i n f l a m m a t o r y " r e m a r k s made by d e f e n s e c o u n s e l t o t h e j u r y
during closing arguments and the inability to present
evidence of the insurance company's bad faith unjustly
prejudiced t h e i r case. A f t e r a h e a r i n g and upon s u b m i s s i o n
of briefs, t h e m o t i o n was d e n i e d . Plaintiffs appeal from
t h e o r d e r d e n y i n g a new t r i a l .
Plaintiffs present three issues for this Court's
consideration:
(1) Whether portions of defense counsel's final
argument t o t h e j u r y were i n v i o l a t i o n of d e f e n s e c o u n s e l ' s
own m o t i o n in limine concerning mention of insurance,
because of counsel's alleged reference to defendant's
supposed l a c k of l i a b i l i t y i n s u r a n c e ?
( 2 ) Whether t h e t r i a l c o u r t ' s J u r y I n s t r u c t i o n No. 15
i m p r o p e r l y a l l u d e d t o a l a c k of i n s u r a n c e c o v e r a g e ?
(3) Whether the trial court improperly excluded
evidence of alleged bad faith activity by defendant's
i n s u r a n c e company?
Pursuant to Rule 14, M.R.App.Civ.P., defendant asks
this Court to decide whether evidence of unemployment
compensation awarded Charles Reno prior to the first trial
should be admitted in the event a new trial is ordered. A
motion to admit such evidence was denied by the trial judge
during the first trial. Because of our disposition of this
appeal, we need not address defendant's issue.
Although plaintiffs' main goal in this appeal is
procurement of a new trial in the District Court, their
theories in support of this goal are mutually exclusive.
Issues One and Two turn on whether the trial proceeded
contrary to the court's order forbidding mention of
insurance. Issue Three, on the other hand, involves an
attempt to nullify the court's order granting the motion in
limine. Although this approach is purely strategic, with
the obvious aim of obtaining a new trial on any one issue,
we find that under no circumstances are plaintiffs entitled
to a new trial.
Plaintiffs1 first ground for new trial is based on
nine alleged references by defense counsel to the
defendant's supposed lack of insurance coverage, a violation
of the trial court's order granting a motion in limine and
Rule 411, Mont.R.Evid. We note, however, that at no time
immediatedly preceeding the delivery of these allegedly
impermissible references did plaintiffs' counsel interpose
an objection. We find that this failure to object is fatal
to the success of plaintiffs' argument on appeal.
In Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d
835, we emphasized the importance of immediate objection to
erroneous interjection of insurance matters. In that case,
the plaintiff inadvertently referred to insurance during his
testimony. Never t h e l e s s , d e f e n d a n t s d i d n o t o b j e c t t o t h i s
admission. After the jury returned a v e r d i c t i n favor of
p l a i n t i f f s , d e f e n d a n t s moved f o r a new t r i a l b e c a u s e o f t h e
p r e v i o u s mention of insurance. The t r i a l c o u r t g r a n t e d t h e
motion, b u t t h i s Court reversed, holding t h a t :
". . . by h i s f a i l u r e t o o b j e c t , a s k f o r
a n a d m o n i t i o n by t h e c o u r t t o t h e j u r y t o
d i s r e g a r d p l a i n t i f f ' s t e s t i m o n y , move f o r
a mistrial, or request a corrective jury
instruction, defendant waived any
o b j e c t i o n h e o t h e r w i s e m i g h t h a v e had t o
p l a i n t i f f I s t e s t i m o n y and is e s t o p p e d
f r o m r a i s i n g t h i s f o r t h e f i r s t t i m e on
m o t i o n f o r a new t r i a l .
" H e r e t h e r e was no o b j e c t i o n o r m o t i o n t o
s t r i k e t h e t e s t i m o n y , no r e q u e s t f o r
a d m o n i t i o n by t h e c o u r t , no m o t i o n f o r
m i s t r i a l , and no r e q u e s t f o r a c o r r e c t i v e
jury instruction. Briefly stated,
defendant did nothing. In s o doing
defendant took a c a l c u l a t e d r i s k . He
knew t h e w o r d s had b e e n u t t e r e d . He knew
t h a t no i s s u e had b e e n r a i s e d t h e r e o n .
H e knew t h a t t h e j u r y h a d n o t b e e n
admonished o r i n s t r u c t e d t o d i s r e g a r d
t h i s t e s t i m o n y ; and h e knew t h a t h i s c a s e
was b e i n g s u b m i t t e d t o t h e j u r y on t h i s
basis. Under these circumstances,
defendant's failure t o object or request
c o r r e c t i v e a c t i o n c o n s t i t u t e d a waiver of
o b j e c t i o n on t h i s i s s u e . I t cannot be
u r g e d f o r t h i s f i r s t t i m e upon m o t i o n f o r
a new t r i a l f o l l o w i n g a n a d v e r s e j u r y
verdict. [Citations omitted.] To h o l d
o t h e r w i s e would n o t o n l y p u t t h e t r i a l
c o u r t i n e r r o r on a n i s s u e w h i c h had n o t
been p r e s e n t e d t o it f o r r u l i n g , b u t
would p e r m i t a l i t i g a n t t o s u b m i t h i s
case t o the jury for a possible verdict
i n h i s f a v o r , and i n t h e e v e n t h e was
u n s u c c e s s f u l , would p e r m i t him a n o t h e r
d e t e r m i n a t i o n by a n o t h e r j u r y . " 153
Mont. a t 294-95, 456 P.2d a t 840-41.
S e e a l s o K l a u s v. H i l l b e r r y ( 1 9 7 1 ) , 1 5 7 Mont. 2 7 7 , 485 P.2d
54. A c c o r d , C a u s e y v. C o r n e l i u s ( 1 9 5 8 ) , 1 6 4 Cal.App.2d 269,
330 P.2d 468. See generally Annot., 40 A.L.R.Fed. 541,
570-71 (1978) ( f a i l u r e t o o b j e c t t o impermissable r e f e r e n c e s
to insurance amounts to waiver of objection); Annot., 2
A.L.R.2d 761, 820-21 (1949) and Later Case Service (1971 and
Supp. 1983) (failure to object to prejudicial references to
insurance amounts to waiver of objections).
Plaintiffs' counsel admits that he did not interpose
objections. Nevertheless, he maintains that the alleged
errors are reviewable under the "plain error" doctrine.
Rule 103(d), Mont.R.Evid., provides that, notwithstanding
the requirement of Rule 103(a)() concerning timely
objections or motions to strike, a trial or appellate court
is not precluded from "taking notice of plain errors
affecting substantial rights although they were not brought
to the attention of the court." See also Halldorson v.
Halldorson (1977), 175 Mont. 170, 573 P.2d 169. Plaintiffs
insist that the allegedly objectionable references to lack
of insurance were so clearly prejudicial as to compromise
their substantial rights. We disagree.
This Court is not sympathetic to a broad definition of
"substantial rights." The Montana Commission on Rules of
Evidence has emphasized that the plain error doctrine "will
be used in exceptional cases and should not be relied upon
by counsel." Commission Comments, Rule 103(d), Mont.R.Evid.
(1977). Indeed, in Halldorson, supra, we held that "the
[plain error] exception will not be applied where the
failure or refusal to raise the issue in the trial court was
conscious and intentional on the part of trial counsel."
175 Mont. at 174, 573 P.2d at 172. To hold otherwise would
so liberalize the plain error doctrine as to effectively
negate the substance of the remainder of Rule 103.
Courts have typically confined the scope of the plain
error doctine to criminal cases, because the right to life
and liberty is unquestionably substantial or fundamental.
M. Graham, Handbook of Federal Evidence Section 103.9
(1981); 5 Am.Jur.2d Appeal and Error Section 549 (1962 &
Supp. 1982) (citing cases). "Plain error" generally
involves an act or omission of a more serious nature than
"reversible error," and only on rare occasion is the former
doctrine invoked in civil cases. Graham, supra. A review
of federal court decisions construing Rule 103(d),
Fed.R.Evid., which is identical to the Montana rules,
confirms this observation. In the following civil cases,
the courts have declined to extend the plain error doctrine
to errors normally reversible but not objected to by counsel
during trial: Dignataro v. Blackburn (4th Cir. 1983), 12
Fed. Rules Evid. Serv. 1539 (failure to object to exclusion
of legally acceptable videotape testimony crucial to
plaintiff's civil rights action); Adams v. Brown & Root,
Inc. (5th Cir. 1983), 688 F.2d 410 (failure to object to
evidence of widow's remarriage); O'Toole v. Arlington Trust
Co. (1st Cir. 1982), 681 F.2d 94 (failure to object to
otherwise inadmissible corporate documents crucial to
establishing diversity of parties); Ellis v. City of Chicago
(7th Cir. 1981), 667 F.2d 606 (failure to make offer of
proof concerning excluded testimony); Bestway Equip. Serv.,
Inc. v. Berwind Lines, Inc. (1st Cir. 1981), 655 F.2d 440
(failure to object to evidence normally barred under par01
evidence rule); Shingleton v. Armor Velvet Corp. (5th Cir.
1980), 621 F.2d 180 (failure to object to inadmissible
references to defendant's "worldly circumstances" on issue
of punitive damages); Chambley v. Georgia Steel, Inc. (5th
Cir. 1980), 617 F.2d 144 (failure to object to court's use
of cryptic and overly compressed jury instructions);
Blankenship v. Rockefeller (N.D. W.Va. 1981), 9
Fed.Evid.Rep. 960 (failure to object to prejudicial and
inadmissible inquiries into plaintiff's alleged
homosexuality and membership in Nazi party).
The doctrine has been applied in some civil cases,
see, United States v. 91.9 Acres of Land (8th Cir. 1978),
586 F.2d 79, cert. den. (1979), 441 U.S. 944, 99 S.Ct. 2162,
60 L.Ed.2d 1045; Harris v. Smith (8th Cir. 1967), 372 F.2d
806; Halldorson, supra, but none of these cases involved a
failure or unwillingness to object to inadmissible
references to insurance or the lack thereof. In Halldorson,
plain error was invoked when the trial court effectively
denied a party due process by recessing trial and entering
judgment without allowing the party to present his
case-in-chief--an unquestionable denial of the substantial
right to a fair hearing. The party admittedly did not
object to the recess, hut he did move to vacate the
judgment, once it was obvious that he had been denied an
opportunity to present his case. Similarly, the Eighth
Circuit applied the plain error doctine in United States v.
91.9 Acres to jury instructions which were legally correct
in the abstract, but which proved inadequate during jury
deliberations in a complex eminent domain case. In Harris,
the same court concluded that it was plain error for a trial
judge to receive hospital records into evidence but not
place them before the jury, even when a proper foundation
had been laid for receiving the records.
The error discussed in Halldorson is not involved in
the immediate case, so plaintiffs' reliance on it is
misplaced. The Eighth Circuit decisions discussed above
have not been cited by plaintiffs' counsel in support of
applying the plain error doctrine, although they arguably
lend some credibility to plaintiffs' implicit argument that
unchallenged errors usually deemed reversible may be
reviewed as plain error by a trial or appellate court.
These decisions, however, should be measured against the
almost universal rejection of the plain error doctrine in
civil cases where errors do not implicate substantial and
fundamental rights. It should also be emphasized that the
plain error in United States v. 91.9 Acres did not become
obvious until after the conclusion of trial; it was
unforseeable that the jury instructions would prove unduly
detrimental until after deliberations. Erroneous references
to insurance, however, are readily apparant and should be
challenged immediately. In Harris, the court applied the
plain error doctine on its own initiative, without urging of
counsel, to a matter not crucial to the outcome of the
appeal. We also note that the underlying rationale of
Harris has not been extended by the Eighth Circuit or any
other court to other errors, perhaps reflecting the unique
and possibly questionable holding in that case.
The weakness of plaintiffs' argument in support of
applying the plain error doctrine in this case is readily
apparant from a review of his reasons for failing to object.
Plaintif f s l counsel insists that it would have been
"useless" to object to the prejudicial references made by
the defense attorney, because (1) the trial court would not
have admonished the jury that defendant in fact had
insurance; and (2) objection would have necessarily
interjected the insurance question in violation of the order
prohibiting mention of insurance. Neither argument has
merit. If comments by counsel are prejudicial or outside
the bounds of a court order restricting argument, then
opposing counsel (and sometimes the trial court) has an
obligation to interpose objections. Request for a mistrial
is also proper in some instances. It is speculative on the
part of plaintiffs' counsel to argue that the trial court
would have done nothing helpful in the face of the allegedly
impermissible remarks by defense counsel. Similarly,
plaintiffs' counsel need not have interjected the insurance
question himself; the matter could have been raised in a
bench conference or in chambers, both of which are outside
the hearing and presence of the jury.
Plaintiffs' counsel more than likely "failed" to
object because the true nature of the defense attorney's
remarks to the jury did not warrant objection on grounds of
impermissible reference to insurance matters. The allegedly
objectionable statements, sprinkled randomly throughout the
closing argument, neither overtly nor covertly mention
insurance or the lack thereof. With the exception of the
assertion by defense counsel that "the purpose here is not
to punish Mr. Erickstein," a remark we think unnecessary, we
find no reasonable basis for plaintiffs' counsel to allege
the improper injection of insurance into the trial. Even if
this one remark was enough to warrant serious objection, we
emphasize that plaintiffs' counsel was silent after its
making.
Plaintiffs' counsel would have this Court apply a
doctrine of limited scope to remarks of little or no
c o n s e q u e n c e which i n a n y e v e n t w e r e l e f t u n c h a l l e n g e d . We
r e j e c t the i n v i t a t i o n t o s o extend t h e p l a i n e r r o r d o c t r i n e ,
and a d h e r e t o o u r s a l u t a r y r u l e t h a t t h e time and p l a c e f o r
o b j e c t i n g t o unwarranted r e f e r e n c e s t o i n s u r a n c e is d u r i n g
trial.
Plaintiffs' second i s s u e on appeal must also be
dismissed. Plaintiffs maintain that Court's Jury
I n s t r u c t i o n No. 15, which instructed the jury that "the
D e f e n d a n t h a s made payment t o t h e P l a i n t i f f s i n t h e sum o f
$3,312.70 for repair of t h e automobile of the P l a i n t i f f s
damaged in the accident [and] [ylou a r e therefore not to
c o n s i d e r damage t o t h e P l a i n t i f f s ' automobile a s an element
o f damages i n t h i s c a s e , " improperly conveys t h e i d e a t h a t
d e f e n d a n t had n o l i a b i l i t y i n s u r a n c e . We f i n d no m e r i t i n
t h i s contention. P l a i n t i f f s ' counsel admittedly objected t o
t h e g i v i n g o f t h i s i n s t r u c t i o n , b u t o n l y on g r o u n d s t h a t t h e
c o s t of r e p a i r was n o t i n t h e p l e a d i n g s . No o b j e c t i o n was
made that it improperly referred to a lack of insurance
coverage. We note with interest that Court's Jury
Instruction No. 16, which instructed the jury that the
d e f e n d a n t had p a i d $ 2 , 5 4 9 . 6 0 in plaintiffs' medical b i l l s ,
was offered by plaintiffs' counsel. It is unusual for
plaintiffs' counsel t o i n s i s t t h a t one i n s t r u c t i o n submitted
by defendants is impermissible while his own similar
i n s t r u c t i o n is f r e e f r o m c h a l l e n g e .
P l a i n t i f f s w i l l n o t be heard t o c h a l l e n g e on a p p e a l an
i n s t r u c t i o n for reasons not raised before the t r i a l court.
R u l e 5 1 , M.R.Civ.P. r e q u i r e s t h a t t h e grounds f o r o b j e c t i o n
to jury instructions must be stated with particularity.
Exceptions should be made before submission of the case to
the jury and their retirement, or they will not be
considered. McKinstry v. Clark (l882), 4 Mont. 370, 1 P.
759. Even if there was some impropriety in giving the
instruction, which there was not, the trial judge should
have been given the opportunity to hear plaintiffs'
objection before closing arguments and jury deliberations
and render an appropriate ruling on the objection.
Plaintiffs' third issue on appeal also lacks merit.
We recognize that Rule 411, Mont.R.Evid. does not require
the exclusion of evidence of insurance against liability
when the purpose behind introducing such evidence is to
demonstate such things as "proof of agency, ownership, or
control, or bias or prejudice of a witness," as opposed to
proof of negligence or wrongful conduct on the part of the
defendant. We find, however, that plaintiffs' alleged
evidence of bad faith was simply inappropriate for
introduction in this trial. Plaintiffs were interested in
making some kind of bad faith claim against defendant's
insurance company. However, the complaint was filed against
the defendant alone. Prior to the time of trial, plaintiffs
declined an opportunity to amend their complaint and join
the insurance company as a party, even though they had a
right to obtain joinder under Klaudt v. Flink (Plont. 1983),
658 P.2d 1065, 40 St.Rep. 64. Thus, plaintiffs' evidence
was irrelevant to the immediate proceeding and properly
barred from admission by the trial court's order granting
defense counsel's motion in limine. Even if the evidence
was appropriate for admission, no attempt was made by
plaintiffs' counsel to make an offer of proof outside the
p r e s e n c e of the jury in order t o preserve for appeal t h e
i s s u e o f bad f a i t h .
The o r d e r o f t h e D i s t r i c t Court denying p l a i n t i f f s a
new t r i a l is a f f i r m e d .
J u s t i c e ,,
.'
W e concur:
i'