dissenting. I disagree ustice, court was correct when it allowed the Londagins to introduce evidence of Wal-Mart’s actions seeking to satisfy Mr. Perkins’s complaint. I believe the trial court erred. I, therefore, must dissent. Rule 408 of the Arkansas Rules of Evidence, entitled “Compromise and offers to compromise” provides:
Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
(Emphasis added.)
It was undisputed in this case that approximately one hour after Laura Perkins had her pick-up truck serviced at Wal-Mart’s Tire and Lube Express, the left front tire came off her vehicle as she was driving down Highway 59 near Gentry, Arkansas, leaving she and her three young children stranded on the side of the highway. Ms. Perkins, who was then on her way to attend a concert at the State Fair in Tulsa, Oklahoma, immediately telephoned Wal-Mart from the scene on her cellular phone. It was further undisputed that, shortly thereafter, two Wal-Mart employees arrived at the scene of the accident with a rental car for Ms. Perkins and helped transfer her belongings to the rental car so that she could be on her way. It was also undisputed that Wal-Mart made arrangements to have Ms. Perkins’ vehicle towed to a repair shop and that Wal-Mart paid to have her truck repaired.
Obviously anticipating that the Londagins would attempt to utilize this evidence to prove liability on the part of Wal-Mart, counsel for Wal-Mart moved in limine to exclude it. It was Wal-Mart’s contention that this evidence of the furnishing of consideration in attempting to compromise a disputed claim is expressly prohibited by Ark. R. Evid. 408. In responding to the call of its customer by providing her with alternative transportation and towing and repairing her vehicle, Wal-Mart clearly furnished a valuable consideration to Laura Perkins in compromise or attempted compromise of a disputed claim. The Rule, as noted above, states that such evidence is “not admissible to prove liability for . . . the claim or any other claim.” (Emphasis added.)
Clearly, the Rule precludes the introduction of this evidence not only with respect to any claim Laura Perkins might have brought against Wal-Mart, but also with regard to the claim that Johnny and Sue Londagin brought against Wal-Mart in this case. The Londagins contend, and the trial court apparently agreed, that Rule 408 is inapplicable to this case because there was no evidence that the claim was disputed at the time of Wal-Mart’s actions. The Rule does not define the word “disputed,” and there are apparently no Arkansas cases wherein this particular portion of Rule 408 has been interpreted. Ms. Perkins testified at trial that she remembers “being really upset” when she telephone Wal-Mart. She recalled telling Wal-Mart that “there’s no way we can fix the truck as it is sitting.” Common sense would dictate that when Wal-Mart received this call from its customer, obviously demanding some kind of action on Wal-Mart’s part, a disputed claim arose — at least from Wal-Mart’s perspective. Evidence of Wal-Mart’s efforts to compromise that claim by furnishing a loaner car and towing and repairing Ms. Perkins’ pick-up truck is precisely the type of conduct that Rule 408 is designed to prohibit from the jury’s consideration.
The “First Report of Incident” completed by Wal-Mart in connection with this accident confirms the fact that, at least in WalMart’s mind, this was an attempted compromise of a disputed claim. The incident report indicates at the top that the form is to be filled out “when there is a customer injury as well as when settling a claim in the field.” The form specifies settlement authority on the store level of up to $250 and at the district manager level of up to $1,000. In this case, in the blank provided for the insertion of the settlement amount, the incident report reflects that the district manager authorized a rental car and towing. What further evidence of a disputed claim need there be?
Here, we have a call from a customer who, in her own words, was “really upset” with Wal-Mart and telephoned the company from the side of the road expecting retribution; further, we have action taken by Wal-Mart in an attempt to resolve the controversy by the furnishing of a rental car and the towing and repair of the customer’s damaged vehicle. Wal-Mart submits that these undisputed facts were more than sufficient to have compelled the exclusion of the evidence pursuant to Rule 408. I agree.
As the majority notes, this Court has strictly construed Ark. R. Evid. 408 in the past. In Elrod v. G & R Construction Co., 275 Ark. 151, 628 S.W.2d 17 (1982), this Court went so far as to hold that the trial court should have granted the plaintiffs motion for a mistrial when a witness made a reference to settlement. Noting that the declaration of a mistrial is a drastic step, the Court nevertheless held that no admonition of the jury by the trial court would have been sufficient to eliminate any possible prejudice which might have resulted from the testimony.
In Ferguson v. Graddy, 263 Ark. 413, 565 S.W.2d 600 (1978), this Court affirmed a trial court’s decision to exclude evidence of payments made to the plaintiff by the defendant’s insurance carrier for lost earnings and medical expenses. Finding Ark. R. Evid. 409 controlling, the Court explained the rationale behind the Rule in these words:
... it is to the best interest of society and in keeping with the mores of the community that humanitarian and benevolent instincts not be hobbled by the hazard that assistance to an injured person be taken as an admission of liability in a personal injury action, when even lawyers and judges experience great difficulty in agreeing on such questions.
Id. at 417-18, 565 S.W.2d at 602. The same reasoning applies to Rule 408, which, like companion Rule 409, is clearly intended to foster the settlement of claims, whether or not a third-party claim is involved. Clearly, by including the language “or any other claim,” the Rule was intended to cover the very scenario we presently have before us.
If it is not entirely clear whether conduct on the part of a defendant is a true offer of compromise or simply an admission of liability, then the only safe position for the court to take is .one of exclusion of the evidence. Appellant cites two Connecticut cases in which the Appellate Court of Connecticut has taken this very position. In Rosales v. Lupien, 50 Conn. App. 405, 717 A.2d 821 (1998), the plaintiff Sophia Rosales was injured when she fell on a basement staircase while moving a washing machine into defendant David Lupien’s basement. Ms. Rosales sought to introduce evidence that Mr. Lupien offered to pay her medical bills and urged her to make a claim against his homeowner’s insurance policy. The appellant court affirmed the trial court’s decision to exclude the evidence, holding that “[wjhere it is not clear whether a statement is an offer of compromise or an admission of liability . . . and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.” 717 A.2d at 822. The court held that Mr. Lupien’s statements about paying the plaintiffs medical bills and making a claim against his homeowner’s policy “were not clearly admissions of liability. Rather they are more accurately characterized as offers of compromise and hence are not admissible.” Id.
In another Connecticut case, Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 587 A.2d 1056 (1991), a customer brought a negligence action against a drugstore for personal injuries she allegedly sustained in a slip-and-fall accident. The defendant contended that the trial court erred in allowing the plaintiff to testify that the store’s assistant manager had offered to pay her medical bills. Specifically, the evidence was that two days after the accident, an assistant manager directed another store employee to “give her anything she wants, and [there will] be no charge for it” and concerning “any bills that occurred to bring them in and Medi Mart would take care of them.”
The Connecticut Appellate Court held that the trial court should have excluded this evidence. Noting that the assistant manager’s comments were ambiguous, the court nevertheless found that the statements “could have easily been construed as an offer to settle or compromise.” The court went on to hold that “[w]here it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.” 587 A.2d at 1059. In other words, in order to promote the goal of settling disputes, any ambiguity which might arise from a defendant’s statements or actions must be resolved on the side of finding such conduct to be an offer of compromise, rather than an admission of liability.
The very same kinds of statements were allegedly made by Wal-Mart’s Tire and Lube Express manager, Jon Kuntz, in the instant case. Ms. Perkins was allowed to testify that she signed an affidavit stating that Mr. Kuntz told her not to worry, that Wal-Mart would take care of everything. To the extent that this Court finds any ambiguity with regard to Wal-Mart’s employee’s intent in making such statements, then the Rosales and Sokolowski cases stand for the proposition that all doubt must be resolved in favor of upholding the policy underlying Rule 408 by deeming the statements to be offers of compromise.
It is important to note that no witness testified in this case that any Wal-Mart employee admitted fault in causing this accident. On the other hand, all of the Wal-Mart employees who did testify clearly expressed Wal-Mart’s customer service policy — namely, to take whatever measures are necessary to keep its customers happy. Wal-Mart submits that, especially in light of its customer service policy, the only reasonable interpretation of Wal-Mart’s conduct in this case is that it was an attempt to resolve what it perceived to be a disputed claim arising out of service performed on Laura Perkins’s pick-up truck.
It is apparent from the Londagins’ counsel’s questioning of the witnesses at trial, and from his statements to the jury in closing argument, that the Londagins’ intent in introducing these matters into evidence was to leave the jury with the impression that WalMart was liable for negligence. In his closing remarks to the jury, the Londagins’ attorney stated, “The reason they authorized the repairs is they knew that they were responsible for that.” He later stated, “I think, ladies and gentlemen, that all the evidence will indicate that they knew they were responsible; that’s the reason they took that vehicle; that’s the reasons they had it towed to the Supercenter; that’s the reason they had it towed out to Bob Morey’s body shop; that’s the reason they had it towed to Ron Blackwell . . . . ”
Rule 403 of the Arkansas Rules of Evidence, which Wal-Mart also relied upon in support of its motion in limine, provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Here, Wal-Mart clearly suffered prejudice by the repeated references throughout the trial to its attempts to resolve the claim with Ms. Perkins. The real issue in this case was whether Wal-Mart was negligent in performing the tire rotation on Ms. Perkins’s vehicle. The fact that Wal-Mart responded to an agitated distress call from its customer, stranded at night with her three young sons on a rural highway while on her way to attend a concert in Tulsa, Oklahoma, should not have been allowed to be parlayed into an admission of liability.
In short, when the proof with respect to Wal-Mart’s settlement of Laura Perkins’s claim was admitted into evidence in this case, the public policy which underlies Rule 408 — that being to encourage the settlement of claims without resort to litigation — was seriously thwarted, and, if allowed in this case simply because a third party is attempting to introduce said evidence, will further undermine the purpose of the Rule. For all of these reasons, I would reverse the trial court on this issue and remand the case, holding that it was an abuse of discretion for the trial court to allow this evidence in clear violation of Rule 408. I, therefore, respectfully dissent.