Shane v. Rhines

BURKE, Chief Justice,

with whom MATTHEWS, Justice, joins, dissenting in part, concurring in part.

I respectfully disagree with the court’s conclusion that evidence of Rhines’ insurance policy was properly excluded by the trial court. Under the circumstances, the evidence should have been admitted and I would so hold.

The purpose of introducing the insurance policy was to establish Rhines’ ability to pay punitive damages. Evidence of the defendant’s financial condition is admissible to determine how large a punitive damage award must be to achieve the purposes of punishment and deterrence. Clary Insurance Agency v. Doyle, 620 P.2d 194, 205 (Alaska 1980); Sturm, Ruger & Co. v. Day, 594 P.2d 38, 48 (Alaska 1979), modified on rehearing, 615 P.2d 621 (Alaska 1980), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981). A defendant’s insurance policy is a part of his financial resources and will obviously affect the degree to which a defendant is punished by a punitive damage award.

Although Evidence Rule 411 states that evidence of insurance is not admissible to determine fault or negligence, it does not require its exclusion “when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” Alaska R.Evid. 411. The list of permissible purposes is illustrative, not exclusive, and thus “evidence of insurance is admissible for any purpose that does not involve an inference from the fact of insurance to the existence of negligence or similar wrongdoing.” 23 C. Wright & K. Graham, Federal Practice and Procedure § 5365, at 454 (1980); see also 10 J. Moore, Moore’s Federal Practice § 411.04 (1981).

Since Shane’s purpose in offering the evidence of Rhines’ insurance policy was not to show negligence or wrongdoing, but was offered to establish Rhines’ ability to pay punitive damages, Rule 411 does not bar the admission of that evidence. Cf. 23 C. Wright & K. Graham, Federal Practice and Procedure § 5364, at 449 (1980) (“Finally, Rule 411 does not prohibit the use of evidence of insurance where it is relevant to the question of damages or punitive damages .... ”). Furthermore, there is no danger that Rhines will be unfairly prejudiced by the admission of the insurance policy since he has already admitted that he was at fault, and thus the policy of Rule 411 is not compromised at all in this case. See Commentary to Alaska R.Evid. 411 (“The courts have . . . rejected evidence of liability insurance for the purpose of proving fault and absence of liability insurance as proof of lack of fault”). Therefore, I believe the trial court erroneously excluded *903evidence of Rhines’ insurance policy, and that Shane should receive a new trial.1

My proposed holding raises the further question of whether the new trial should be limited to the issue of punitive damages alone, or whether it should encompass, as well, the issue of compensatory damages. We have previously stated that “a partial retrial should not be ordered unless it clearly appears that the issue to be decided is distinct and separable, and can be had without injustice to any party.” Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Alaska 1981). In my judgment, the second of these conditions is not clearly met in the case at bar.

Rhines’ attorney was permitted to introduce evidence of his client’s financial condition. Because the trial court excluded evidence of Rhines’ insurance policy, a distorted and false depiction of his financial condition was presented. I am unable to say that this false picture did not influence the jury in assessing compensatory as well as punitive damages. The trial court did not instruct or admonish the jury to consider the evidence of Rhines’ financial condition only on the question of punitive damages. This, in other words, is not a case in which the parties on appeal can “pinpoint error so as to show that the error .. . may have affected only one issue.” Caterpillar Tractor Co. v. Beck, 624 P.2d at 795, quoting from Maxwell v. Portland Terminal Railroad Co., 253 Or. 573, 456 P.2d 484, 486 (Or.1969). Thus, I would hold that a new trial on both issues is required.

On the remaining issues, I concur. I disagree, however, with Justice Compton’s concurring opinion which states that it is an abuse of discretion per se for a trial judge to fail to order a bifurcated trial in cases such as this. In my view there are too many factors bearing on the propriety of a bifurcated trial which are individual to each particular case to justify laying down any per se rule and thus wresting discretion from the hands of the trial judge. See J. Ghiardi and J. Kircher, Punitive Damage Law and Practice § 12.04 (1981) and cases cited therein. I do not believe that the prejudice to a defendant that might result from the introduction of evidence of liability insurance will always justify the added time and expense of a split trial. To me the proposition that routine bifurcation in every punitive damage case is desirable seems highly questionable. Leading commentators who have examined the issue have also found this proposition to be dubious. Id. § 12.13; see also Weinstein, Routine Bifurcation of Jury Negligence Trials: An Example of the Questionable Use of Rule Making Power, 14 Vand.L.Rev. 831 (1961).

. The jury determined by special verdict that Shane was not entitled to punitive damages. Rhines argues, and the court agrees, that any error relating to the exclusion of evidence of insurance goes to the amount of punitive damages only and, in light of the jury’s finding, is therefore harmless. I disagree. Rhines introduced evidence of his financial condition precisely for the reason that it might influence jurors in their decision whether to award punitive damages, as well as how much to award. Evidence of the existence of liability insurance would have tended to dispell this prejudicial influence by rendering complete the picture of Rhines’ financial circumstances.