Williams v. Bell

ELMORE, Judge

concurring.

While I concur in the result reached by the majority, I write separately to express my opinion that plaintiffs’ proffered evidence of insurance was indeed relevant and admissible. However, as pointed out by the majority, our standard of review on a trial court’s exclusion of evidence is abuse of discretion and despite my disagreement with the trial’s court’s decision to exclude, I do not believe it was an abuse of discretion. See Carrier v. Starnes, 120 N.C. App. 513, 519, 463 S.E.2d 393, 397 (1995).

The majority and I characterize the evidence presented at trial differently, and as a result end up with a different outcome on the question of relevancy. The majority’s opinion seems to state that the evidence regarding Bell’s agency with American was uncontradicted. I would argue otherwise.

One of the dispositive issues before the jury in this case was whether Bell was acting within the course and scope of his duties as an agent of American at the time of the accident. I would characterize the evidence at trial as displaying a decision by American to, in part, deny that Bell could possibly even be their agent, while also in part arguing that if he was their agent, then he had exceeded the course and scope of his duties at the time of the accident. It is American’s first theory of the case, the denial of agency, that I think makes the insurance policy admissible; admittedly, the policy does nothing to resolve the issue of agency at the time of the accident.

Defendants had portions of deposition testimony by Dan Jackson, the National Tournament Director for American, read into the record at trial. These portions were relevant to the issue of whether Bell was American’s agent.

*682Question: Do local tournament directors, are they in charge of the national tournament?
Answer: Not at all. If they are there they are there as competitors.

It is undisputed that Bell was a local tournament director and that the fishing tournament on High Rock Lake was a national tournament, not a local tournament. It was also undisputed that Bell was a participant in the tournament; what was in dispute was whether he had other duties as an agent of American on top of participating in the tournament. Jackson’s deposition testimony went further:

Question: All right, so local tournament directors can participate in the nationals tournament, correct?
Answer: Correct.
Question: And they can volunteer also to assist with the nationals tournament?
Answer: Correct.
Question: But there is no official duties of a local tournament, duties related to a national tournament?
Answer: That is correct.

From this testimony it is evident that American, through its national director, was denying that Bell had any duty to perform for them.

Indeed, from the beginning of the majority’s opinion they cast doubt as to whether Bell could even be in an agency relationship with American. The opinion points out Bell was “not an employee [,] . . . received no salary, and had no full-time duties as district director.” Further they note that:

Bell participated in the tournament as a contestant^] paid a registration fee[,] . . . had no duties related to tournament registration, received no compensation, and did not participate as an official of American during the weighing of the fish caught at the end of each day of the tournament. Furthermore, [Bell] was not authorized to answer any questions that arose during the contest concerning the rules and procedures of the tournament. Dan Jackson, American’s national director, was in charge of the tournament.

While the proffered evidence of insurance may not be highly probative of whether Bell was American’s agent at the time of the *683accident, it does, however, have a tendency to show that Bell might actually be an agent of American, a point I see as hardly “uncontra-dicted” by the record. But see N.C. Gen. Stat. § 8C-1, Rule 401 (evidence may still be relevant even if it is offered to prove an undisputed point). It would be difficult to convince a jury that a person was within the course and scope of his duties if the alleged principal denies that agency ever existed; you cannot exceed, complete, or go beyond the scope of an authorized relationship that never existed.1 See Davis v. North Carolina Shipbuilding Co., 180 N.C. 74, 76-7, 104 S.E. 82, 83 (1920) (evidence admissible to refute defendant’s claim that a workman was not its employee); Clarke v. Vandermeer, 740 P.2d 921, 922-25 (Wyo. 1987) (evidence of employer’s insurance policy covering drivers was admissible to show whether driver was an agent of employer); Jacobini v. Hall, 719 S.W.2d 396, 401 (Tex. Ct. App. 1986) (insurance evidence admissible to show ownership where ownership is denied).

Plaintiffs’ evidence countered this position by showing that just before the accident Bell had released the fish that were caught during the tournament; returned the official tournament boat to the dock, which was actually his boat; and then got in his personal boat, the boat that he had fished in. American’s tournament rules, as introduced through Bell’s testimony, do not permit “participants” on the lake unless it is during the tournament. As ordered by National Director Jackson, Bell was on the lake after the tournament releasing the fish that were caught during the first day of the tournament.

Plaintiffs’ evidence also showed that prior to the day of the incident, Bell was responsible for setting up the tournament, including securing sponsors, accommodations, and other incidental tasks necessary to a fishing tournament. He also had American logos on his personal truck, which he had driven both before and during the tournament. Further, after the boating accident had occurred and Bell returned to the hotel, he, Dan Jackson, and another local director met to discuss whether the tournament should even continue.

Plaintiffs had evidence linking the “agent” to the alleged principal, but in the face of the principal’s denial of agency, were seeking evidence that would counteract that denial and establish a connection from the principal to the agent. Plaintiffs were seeking to use evidence of the insurance agreement taken out by American to cover the *684actions of its “directors” in order to refute American’s denial of agency. See Davis, 180 N.C. at 76-7, 104 S.E. at 83; Charter v. Chleborad, 551 F.2d 246, 248-49 (8th Cir. 1977) (where credibility of expert is a key issue, it was reversible error to deny evidence of insurance to show bias); Royal Oil Co. v. Wells, 500 So. 2d 439, 448 (Miss. 1986) (where agency was “hotly contested,” mention of insurance was relevant to agency, and its introduction would not violate Rule 411); Clarke, 740 P.2d at 922-25; Jacobini, 719 S.W.2d at 401; N.C. Gen. Stat. § 8C-1, Rule 401 and Rule 411 (2003).

Using the majority’s analysis, I would determine that plaintiffs’ evidence was indeed relevant, even if not sufficient or highly probative of the ultimate issue. Although reversing slightly the order of analysis, I would also determine that Rule 411 does not prohibit the exclusion of this otherwise relevant evidence.

North Carolina Rule of Evidence 411 states:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

N.C. Gen. Stat. § 8C-1, Rule 411 (2003) (emphasis added). The key to application of this relevance rule is to understand the purpose for which evidence of insurance is being offered: if the purpose is to show liability then the evidence is inadmissible, but if the purpose of introduction is otherwise, then Rule 411 will not prohibit its use. Williams v. McCoy, 145 N.C. App. 111, 116-17, 550 S.E.2d 796, 801 (2001); Warren v. Jackson, 125 N.C. App. 96, 98, 479 S.E.2d 278, 279-80 (1997); see generally 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence, § 108, p. 333 (5th ed. 1998).

Agency was a contested issue at trial and also the sole manner in which plaintiffs could prove American liable. Any introduction of insurance taken out by American over its directors could only be offered to further an agency relationship; plaintiffs were not presenting evidence American was directly negligent or liable in any fashion. Since evidence of insurance was offered to show a purpose other than liability, specifically, agency, then Rule 411 is not a bar to its admission.2

*685Finally, I do not think that the probative value of the proffered evidence is substantially outweighed by its prejudicial effect. See N.C. Gen. Stat. § 8C-1, Rule 403 (2003). But, Rule 411 does not offer free reign over the use of an insurance policy. In particular, the amount of coverage, as solicited on voir dire in this case, is clearly prejudicial and serves no basis in determining agency. See Reed v. Gen. Motors Corp,, 773 F.2d 660, 663-64 (5th Cir. 1985) (Rule 411 does not generally permit the amount of coverage to be introduced); Broun, supra, at 334-35. Also, defendants can request a limiting instruction to the jury regarding the fact that evidence of insurance should only be considered for the purposes of determining whether an agency relationship exists.

Based on the foregoing, I would hold that the trial court erred in excluding the proffered evidence. However, I must agree with the majority that the trial court’s exclusion was not an abuse of its discretion. Indeed, this panel, while agreeing on the analysis required by defendants’ objection and plaintiffs’ proffer of evidence cannot agree on the admissibility of the policy. It can hardly be said then that the trial court abused its discretion in choosing one reasoned avenue over another.

. At trial, when arguing on voir dire outside the presence of the jury, and again here on oral argument, counsel for American conceded that Bell was an agent of the organization, but from reviewing the record, he never offered that to the jury.

. A trial court must be diligent about determining if the asserted purpose for offering evidence of insurance is merely pretextual or too attenuated, for then the gen*685eral rule would be exclusion. See, e.g., Smith v. Starnes, 88 N.C. App. 609, 364 S.E.2d 442 (1988) (evidence that a car was insured 2 months prior to accident does not show agency, ownership, or control on the date of the accident).