NO. COA98-1394
NORTH CAROLINA COURT OF APPEALS
Filed: 5 October 1999
CONNIE G. BLACKMON, Plaintiff, v. MICHELLE C. BUMGARDNER, and
MARVIN L. McMILLAN, Defendants
1. Costs--attorney fees--settlement amount greater than actual recovery
The trial court did not abuse its discretion in a negligence case arising out of an
automobile accident by denying plaintiff's motion for attorney fees because the amounts offered
in settlement were more than four times the amount recovered by plaintiff at trial. N.C.G.S. § 6-
21.1.
2. Costs--judgment less than offer of judgment
The trial court did not err in a negligence case arising out of an automobile accident by
awarding a portion of costs to defendant under N.C.G.S. § 1A-1, Rule 68(a) because plaintiff
recovered a judgment less than defendant's offer of judgment and plaintiff must bear defendants'
costs incurred since the making of the offer.
3. Witnesses--expert witness fees--appealability--failed to assign error--no subpoena--
trial court's discretion
The trial court did not err in a negligence case arising out of an automobile accident by
failing to award plaintiff expert witness fees because: (1) plaintiff failed to assign error to the
trial court's denial of plaintiff's request for expert witness fees; (2) even if the error was
properly assigned, there is no evidence to suggest plaintiff's expert witnesses appeared in court
in response to a subpoena as required by N.C.G.S. § 7A-314; and (3) even if subpoenas were
issued, the decision to award expert fees lies within the trial court's discretion.
4. Motor Vehicles--automobile accident--judgment notwithstanding the verdict--
credibility a jury issue
The trial court did not err in a negligence case arising out of an automobile accident by
denying plaintiff's motions for judgment notwithstanding the verdict under N.C.G.S. § 1A-1,
Rule 50 and for a new trial when defendants stipulated to the issue of negligence but not to the
issues of proximate cause or damages because the jury weighs credibility and has the right to
believe any part or none of the testimony concerning plaintiff's injuries, the reasonableness of
her medical expenses, and the extent of her pain and suffering.
5. Damages and Remedies--automobile accident--motion to set aside the verdict--
inadequate damages--jury determines if medical treatment is reasonably necessary
The trial court did not err in a negligence case arising out of an automobile accident by
denying plaintiff's motion to set aside the verdict under N.C.G.S. § 1A-1, Rule 59 based on
inadequate damages because defendants rebutted the presumed reasonableness of the medical
charges and it remains entirely within the province of the jury to determine whether certain
medical treatment was reasonably necessary. N.C.G.S. § 8-58.1.
6. Motor Vehicles--jury instructions--matters of insurance--limit deliberations to
matters in evidence--additional instructions within trial court's discretion
The trial court did not abuse its discretion in a negligence case arising out of an
automobile accident by refusing to instruct the jury that it should not consider matters of
insurance because the trial court properly instructed the jury to limit its deliberations to matters
in evidence and the decision whether to give the jury additional instructions about matters of
insurance was within the trial court's discretion.
7. Witnesses--automobile accident--expert witness--chiropractor--adequately
instructed
The trial court did not err in a negligence case arising out of an automobile accident by
refusing to instruct the jury that a chiropractor is an expert witness because the trial court
adequately instructed the jury on the issue of expert testimony under N.C.G.S. § 90-157.2 and
the trial court told the jury that the doctor was accepted as an expert in the field of chiropractic.
8. Evidence--cross-examination of plaintiff--questions concerning date of
communications--attorney-client privilege not violated--opened the door
The trial court did not err by allowing defense counsel to cross-examine plaintiff about
privileged communications between plaintiff and her attorney because: (1) defendants merely
asked whether plaintiff had communications at all with her attorney on the dates in question and
defendants did not seek to elicit the substance of those conversations from plaintiff; and (2)
plaintiff's attorney opened the door on redirect by asking plaintiff about conversations she had
with her attorney.
Judge GREENE dissenting in part. Appeal by plaintiff from judgment entered 27 July 1998 by
Judge Timothy L. Patti in Gaston County Superior Court. Heard in
the Court of Appeals 24 August 1999.
On 18 July 1995, Connie G. Blackmon (plaintiff) was driving
a 1988 Mazda automobile on North New Hope Road in Gastonia,
Gaston County, North Carolina, approaching the Kentucky Fried
Chicken (KFC) parking lot. Michelle C. Bumgardner (defendant
Bumgardner) drove Marvin L. McMillan's (defendant McMillan)
truck from the KFC parking lot onto North New Hope Road in the
path of the plaintiff's vehicle. The vehicles driven by plaintiff
and defendant Bumgardner collided.
Officer D.G. Luckadoo of the Gastonia Police Department
investigated the automobile accident. Defendant Bumgardner and
her two children reported no injuries; the officer assigned
plaintiff an injury code of "C" indicating complaints of injury
with no visible signs. Following the accident, plaintiff
initially sought treatment at the emergency room of Gaston
Memorial Hospital, where she was examined by Dr. Paul M. Peindl.
Dr. Peindl diagnosed contusions to the upper left chest and right
knee of plaintiff. He concluded that there were no restrictions
in plaintiff's ability to return to work, and plaintiff was
discharged in stable condition.
The next day, plaintiff began chiropractic treatment withDr. Fletcher G. Keith of Keith Clinic of Chiropractic. Plaintiff
initially complained of headaches, neck pain, and popping sounds
in the neck when turning her head. Dr. Keith diagnosed a
cervical sprain, a lumbar sprain and post-traumatic cephalgia.
He treated plaintiff until 7 January 1996 when she was released
from his care.
At trial, plaintiff testified that she never had migraine
headaches before the accident, but now suffers from them at least
once a month. In accordance with Dr. Keith's instructions,
plaintiff stayed out of work for one week following the accident.
Defense counsel asked plaintiff about dates on which she had
communications with her attorney regarding her physical
condition, and specifically whether plaintiff had any contact
with her attorney from the time of the accident in July 1995 to
the filing of the complaint in November 1996. Over objection,
the court instructed plaintiff to answer.
At trial, plaintiff sought damages for her pain and
suffering, for $2,379.00 in medical expenses and $406.29 in lost
wages. Defendants stipulated to negligence, but not to proximate
cause nor to damages. The jury awarded plaintiff damages of
$900.00. The trial court denied plaintiff's motions for a
judgment notwithstanding the verdict and for a new trial. The
trial court also taxed a portion of defendant's costs to theplaintiff, and denied plaintiff's motion for attorney fees.
Plaintiff appealed, assigning error.
Tim L. Harris & Associates, P.C., by William E. Moore, Jr.,
for plaintiff appellant.
Morris York Williams Surles & Barringer, by R. Gregory Lewis
and Demetrius L. Worley, for defendant appellees.
HORTON, Judge.
Plaintiff contends the trial erred by: (I) denying
plaintiff's motion for attorney fees, awarding costs to
defendant, and failing to award plaintiff expert witness fees;
(II) refusing to set aside the verdict and grant a new trial on
the issue of damages; (III) refusing to instruct the jury that it
should not consider matters of insurance; (IV) refusing to
instruct the jury that a chiropractor is an expert witness; and
(V) allowing defense counsel to cross-examine plaintiff about
privileged communications between plaintiff and her attorney.
I. Costs and Fees
Award of Attorney Fees
[1]Plaintiff argues that the trial court erred in denying
her motion for an award of attorney fees pursuant to N.C. Gen.
Stat. § 6-21.1 (1997), which provides that
[i]n any personal injury or property
damage suit, or suit against an insurancecompany under a policy issued by the
defendant insurance company and in which the
insured or beneficiary is the plaintiff, upon
a finding by the court that there was an
unwarranted refusal by the defendant
insurance company to pay the claim which
constitutes the basis of such suit,
instituted in a court of record, where the
judgment for recovery of damages is ten
thousand dollars ($10,000) or less, the
presiding judge may, in his discretion, allow
a reasonable attorney fee to the duly
licensed attorney representing the litigant
obtaining a judgment for damages in said
suit, said attorney's fee to be taxed as a
part of the court costs.
In Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1973),
our Supreme Court upheld an award of attorney's fees under
section 6-21.1 and stated that:
The obvious purpose of this statute is
to provide relief for a person who has
sustained injury or property damage in an
amount so small that, if he must pay his
attorney out of his recovery, he may well
conclude that [it] is not economically
feasible to bring suit on his claim. In such
a situation the Legislature apparently
concluded that the defendant, though at
fault, would have an unjustly superior
bargaining power in settlement negotiations.
. . . This statute, being remedial, should be
construed liberally to accomplish the purpose
of the Legislature and to bring within it all
cases fairly falling within its intended
scope.
Id. at 239, 200 S.E.2d at 42; City Finance Co. v. Boykin, 86 N.C.
App. 446, 450, 358 S.E.2d 83, 85 (1987). "The allowance of
counsel fees under G.S. 6-21.1 is, by the express language of thestatute, in the discretion of the presiding judge. The case law
in North Carolina is clear that to overturn the trial judge's
determination, the defendant must show an abuse of discretion."
Hillman v. United States Liability Ins. Co., 59 N.C. App. 145,
155, 296 S.E.2d 302, 309 (1982), disc. review denied, 307 N.C.
468, 299 S.E.2d 221 (1983). “'Abuse of discretion results where
the court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision.'" State v. Trull, 349 N.C. 428, 445, 509 S.E.2d 178,
190 (1998)(quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d
523, 527 (1988)).
In the case before us, we do not find an abuse of discretion
by the trial court. Upon plaintiff's motion, the court heard
arguments from counsel for both parties. Defense counsel argued
that, prior to trial, defendant made an offer of judgment of
$4,100.00 which was rejected by plaintiff. After hearing other
arguments from both parties, the trial court stated:
Having considered the arguments of counsel
for attorney's fees based on the fact that
Jury award was substantially less than the
offered judgment, I'm going to exercise my
discretion and DENY counsel's request for
attorney fees.
This Court has recently held that in exercising its
discretion, the trial court should consider all the circumstancesof the case, which include offers of settlement made by the
opposing party, and the timing of those offers. See Washington
v. Horton, 132 N.C. App. 347, 351, ___ S.E.2d ___, ___ (1999).
Here, a substantial offer of judgment was made well before trial,
and that offer was increased through negotiations to the sum of
$4,750.00. The amounts offered in settlement were more than four
times the amount recovered by the plaintiff at trial. We hold
that under these circumstances the trial court did not abuse its
discretion in denying plaintiff's motion for an award of attorney
fees.
Costs Awarded to Defendants
[2]Plaintiff next contends the trial court erred in
awarding a portion of their costs to defendants. In the judgment
dated 27 July 1998, the trial court awarded "[c]osts incurred
subsequent to October 8, 1997, including Defendants' post-Offer
of Judgment costs of $275.85, are taxed to the Plaintiff." It
appears the trial court based the award on N.C. Gen. Stat. § 1A-
1, Rule 68(a), which provides in pertinent part:
At any time more than 10 days before the
trial begins, a party defending against a
claim may serve upon the adverse party an
offer to allow judgment to be taken against
him for the money or property or to the
effect specified in his offer, with costs
then accrued. . . . An offer not accepted
within 10 days after its service shall be
deemed withdrawn and evidence of the offer isnot admissible except in a proceeding to
determine costs. If the judgment finally
obtained by the offeree is not more favorable
than the offer, the offeree must pay the
costs incurred after the making of the offer.
Id. (1990) (emphasis added). "The purpose of Rule 68 is to
encourage settlements and avoid protracted litigation. The offer
operates to save the defendant the costs from the time of that
offer if the plaintiff ultimately obtains a judgment for less
than the sum offered." Scallon v. Hooper, 58 N.C. App. 551, 554,
293 S.E.2d 843, 844, disc. review denied, 306 N.C. 744, 295
S.E.2d 480 (1982). Defendants made an offer of judgment to
plaintiff on 8 October 1997 in the amount of $4,100.00.
Plaintiff recovered a judgment in the amount of $900.00, which is
less than defendant's offer of judgment. Consistent with Rule
68(a) and the holding in Scallon, plaintiff must bear defendants'
costs incurred since the making of the offer on 8 October 1997.
The trial court did not err in awarding post-offer of judgment
costs to defendants. This assignment of error is overruled.
Expert Witness Fees
[3]Plaintiff contends the trial court erred in failing to
award plaintiff expert witness fees. A review of the record on
appeal reveals that plaintiff failed to assign error to the trial
court's denial of plaintiff's request for expert witness fees.
The “'scope of review on appeal is confined to a consideration ofthose assignments of error set out in the record on appeal in
accordance with this Rule.'" Wicker v. Holland, 128 N.C. App.
524, 528, 495 S.E.2d 398, 400-01 (1998); N.C.R. App. P. 10(a).
Even assuming arguendo that plaintiff properly assigned error, we
hold that the trial court did not err in denying plaintiff's
motion.
The decision whether to award expert witness fees lies
within the court's discretion. N.C. Gen. Stat. § 7A-314 provides
in pertinent part:
(a) A witness under subpoena, bound
over, or recognized, other than a salaried
State, county, or municipal law-enforcement
officer, or an out-of-state witness in a
criminal case, whether to testify before the
court, Judicial Standards Commission, jury of
view, magistrate, clerk, referee,
commissioner, appraiser, or arbitrator shall
be entitled to receive five dollars ($5.00)
per day, or fraction thereof, during his
attendance, which except as to witnesses
before the Judicial Standards Commission,
must be certified to the clerk of superior
court.
. . . .
(d) An expert witness, other than a
salaried State, county, or municipal
law-enforcement officer, shall receive such
compensation and allowances as the court, or
the Judicial Standards Commission, in its
discretion, may authorize. A law-enforcement
officer who appears as an expert witness
shall receive reimbursement for travel
expenses only, as provided in subsection (b)
of this section.
Id. (Cum. Supp. 1998) (emphasis added). Our Supreme Court has
interpreted the above statute and held that
Sections (a) and (d) must be considered
together. Section (a) makes a witness fee for
any witness, except those specifically
exempted therein, dependent upon his having
been subpoenaed to testify in the case, and
it fixes his fee at $5.00 per day. As to
expert witnesses, Section (d) modifies
Section (a) by permitting the court, in its
discretion, to increase their compensation
and allowances. The modification relates only
to the amount of an expert witness's fee; it
does not abrogate the requirement that all
witnesses must be subpoenaed before they are
entitled to compensation.
State v. Johnson, 282 N.C. 1, 27-28, 191 S.E.2d 641, 659 (1972).
There is no evidence in the record to suggest that plaintiff's
expert witnesses appeared in court in response to a subpoena.
However, even if subpoenas were issued, the court has discretion
on whether to award expert witness fees. We cannot say under
these circumstances that the trial court abused its discretion,
or that its ruling was “manifestly unsupported by reason” or so
arbitrary that it could not have been the result of a “reasoned
decision." See Trull, 349 N.C. at 445, 509 S.E.2d at 190. This
assignment of error is overruled.
II. JNOV and New Trial
[4]Plaintiff next contends the trial court erred in denying
her motions for judgment notwithstanding the verdict and for anew trial. Rule 50 of the North Carolina Rules of Civil Procedure
provides in pertinent part:
(b) Motion for Judgment Notwithstanding the Verdict. -
(1) Whenever a motion for a directed verdict
made at the close of all the evidence is
denied or for any reason is not granted,
the submission of the action to the jury
shall be deemed to be subject to a later
determination of the legal questions
raised by the motion. Not later than 10
days after entry of judgment, a party
who has moved for a directed verdict may
move to have the verdict and any
judgment entered thereon set aside and
to have judgment entered in accordance
with his motion for a directed verdict;
or if a verdict was not returned such
party, within 10 days after the jury has
been discharged, may move for judgment
in accordance with his motion for a
directed verdict. In either case, the
motion shall be granted if it appears
that the motion for directed verdict
could properly have been granted.
N.C. Gen. Stat. § 1A-1, Rule 50 (1990). A motion for judgment
notwithstanding the verdict tests the legal sufficiency of the
evidence to go to the jury.
Jacobsen v. McMillan, 124 N.C. App.
128, 131, 476 S.E.2d 368, 369 (1996).
A motion for judgment
notwithstanding the verdict is cautiously and sparingly granted.
Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329
S.E.2d 333, 338 (1985). Further, “'[i]t has been long settled in
our jurisdiction that an appellate court's review of a trial
judge's discretionary ruling either granting or denying a motionto set aside a verdict and order a new trial is strictly limited
to the determination of whether the record affirmatively
demonstrates a manifest abuse of discretion by the judge.'”
Id.
at 380, 329 S.E.2d at 343 (citations omitted). “In considering a
motion for [judgment notwithstanding the verdict], the trial
court is to consider all evidence in the light most favorable to
the party opposing the motion; the nonmovant is to be given the
benefit of every reasonable inference that legitimately may be
drawn from the evidence; and contradictions must be resolved in
the nonmovant's favor.”
Smith v. Price, 315 N.C. 523, 527, 340
S.E.2d 408, 411 (1986).
In support of her position, plaintiff relies upon the case
of
Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974). In
Robertson, the minor plaintiff and his father sued the defendant
for damages resulting from defendant's alleged negligence. The
minor plaintiff sought to recover for personal injuries, and the
father sought recovery for medical expenditures incurred by
reason of his son's personal injuries. The medical expenses were
stipulated to be in the amount of $1,970.00. The jury answered
the issues of negligence in favor of the plaintiffs and awarded
$1,970.00 to the father and nothing to the minor plaintiff. The
trial court denied the plaintiff's motion for a new trial, and
this Court found no error in the trial. Our Supreme Court heldthat the jury arbitrarily ignored the minor plaintiff's proof of
pain and suffering, reasoning that "[i]f the minor plaintiff was
entitled to a verdict against defendant by reason of personal
injuries suffered as a result of defendant's negligence, then he
was entitled to
all damages that the law provides in such case."
Id. at 566, 206 S.E.2d at 194.
Defendant contends that the case
sub judice and
Robertson are
distinguishable. We agree. Here, defendants stipulated to the
issue of negligence, but not to the issues of proximate cause or
damages. We note that
[a] stipulation is an agreement between
the parties establishing a particular fact in
controversy. The effect of a stipulation is
to eliminate the necessity of submitting that
issue of fact to the jury. Where facts are
stipulated, they are deemed established as
fully as if determined by jury verdict. A
stipulated fact is not for the consideration
of the jury, and the jury may not decide such
fact contrary to the parties' stipulation.
Smith v. Beasley, 298 N.C. 798, 800-01, 259 S.E.2d 907, 909
(1979) (citations omitted). Because the parties did not
stipulate to the issues of proximate cause and damages, these
issues were to be considered by the jury. In
Beasley, as in this
case,
there was no stipulation removing any element
of damages from the consideration of the
jury. The testimony of plaintiff's witnesses
remained mere evidence in this case to beconsidered by the jury. It is the function of
the jury alone to weigh the evidence,
determine the credibility of the witnesses
and the probative force to be given their
testimony, and determine what the evidence
proves or fails to prove. In weighing the
credibility of the testimony, the jury has
the right to believe any part or none of it.
Id. at 801, 259 S.E.2d at 909 (citation omitted). In the case
before us, the jury considered plaintiff's evidence with regard
to her medical expenses, lost wages, and pain and suffering. The
jury performed its function of hearing the testimony and weighing
the credibility of plaintiff's witnesses. In weighing
credibility, the jury had the right to believe any part or none
of the testimony concerning plaintiff's injuries, the
reasonableness of her medical expenses, and the extent of her
pain and suffering. We hold the trial court did not abuse its
discretion in denying plaintiff's motion for judgment
notwithstanding the verdict.
[5]Plaintiff further contends that the trial court erred in
denying her motion to set aside the verdict. She relies on N.C.
Gen. Stat. § 1A-1, Rule 59, which provides in pertinent part:
(a)
Grounds. A new trial may be granted
to all or any of the parties and on all or
part of the issues for any of the following
causes or grounds:
* * * *
(6) Excessive or inadequate damagesappearing to have been given
under
the influence of passion or
prejudice[.]
Id. (1990). Plaintiff also cites a relevant North Carolina
statute which provides:
Whenever an issue of hospital, medical,
dental, pharmaceutical, or funeral charges
arises in any civil proceeding, the injured
party or his guardian . . . is competent to
give evidence regarding the amount of such
charges, provided that records or copies of
such charges accompany such testimony. The
testimony of such a person establishes a
rebuttable presumption of the reasonableness
of the amount of the charges.
N.C. Gen. Stat. § 8-58.1 (1986). At trial, plaintiff's medical
records were admitted into evidence. Plaintiff testified that
her medical expenses amounted to $2,379.00. This Court has
interpreted the language of N.C. Gen. Stat. § 8-58.1 and held,
among other things,
when plaintiff proffers the evidence required
by section 8-58.1, the finder-of-fact must
find the total amount of the alleged medical
charges is reasonable, unless defendant
carries its burden of going forward by
rebutting the presumed fact of
reasonableness.
Nonetheless, to recover medical expenses
plaintiff bears the ultimate burden of
proving "both that the medical attention
[plaintiff] received was reasonably necessary
for proper treatment of [plaintiff's]
injuries and that the charges made were
reasonable in amount." Put simply, an
aggrieved party must satisfy a two-prong test- the claimed medical charges were (1)
reasonably necessary, and (2) reasonable in
amount.
. . . The medical expenses presumption
does not, however, operate to preclude the
jury from finding that [plaintiff's] medical
expenses were not reasonably necessary for
the proper treatment of his injuries. In
fact, to hold otherwise would infringe on the
unassailable right of the jury to weigh
evidence and assess the credibility of
witnesses.
Jacobsen, 124 N.C. App. at 134-35, 476 S.E.2d at 371-72
(citations omitted). Therefore, "it remains entirely within the
province of the jury to determine whether certain medical
treatment was reasonably necessary . . . ." Id. at 135, 476
S.E.2d at 372.
Counsel for defendant elicited the following from
plaintiff's expert witness, Dr. Peindl:
Q: And, in fact, there were no complaints
with respect to the neck?
A: No.
Q: And no complaints with respect to the
back?
A: No.
* * * *
Q: So in your opinion at the time you saw
her there was no reason for her not to
return to work or her usual activities;
is that right?
A: No.
The testimony of Dr. Peindl could be considered by the jury in
assessing the nature of plaintiff's injury and the amount of her
damages. Plaintiff contends that defendant failed to rebut the
presumption under N.C. Gen. Stat. § 8-58.1 because defendant
failed to offer any evidence to challenge the testimony of
plaintiff's expert witnesses. We disagree. See Smith v.
Beasley, 298 N.C. 798, 259 N.C. 907 (where defendant offered no
evidence, the trial court did not err in denying plaintiff's
motion to set aside the jury verdict of $3,350.00 as an
inadequate award of damages; and there was no merit to
plaintiff's contention that because defendant offered no evidence
her evidence was uncontradicted and should be treated as a
stipulation, since the testimony of plaintiff's witnesses was
merely evidence to be considered, weighed, and believed or not
believed by the jury). We do not find any evidence of passion or
prejudice in the jury's exercise of its fact-finding functions.
The trial court did not abuse its discretion in denying
plaintiff's Rule 59(a) motion for a new trial. Plaintiff's
assignment of error is overruled.
III. Instruction to Jury on Matters Not in Evidence
[6]Plaintiff contends the trial court erred in failing to
instruct the jury that it was not to consider matters ofinsurance in reaching its verdict. The record reveals the
following questions by the jury and the judge's response:
THE COURT: The jury has a question.
Well, they actually have three questions and
I will read those to you now. The first one
"Was the emergency room bill paid by
insurance?" The second question, "If so,
what percentage of the bill was paid?" The
third question, "Were any other medical
treatments paid by the defendant's
insurance?" Do y'all wish to be heard with
regard to a response?
After hearing counsel for both parties, the trial court adopted
defense counsel's position to instruct the jury to consider only
the evidence presented:
THE COURT: All right. Members of the
jury, I have received three written questions
from you. I am going to ask you to recall
and keep in mind all the evidence presented
during the trial. I am going to ask you to
recall and keep in mind and apply the
instructions that I gave to you after the
attorneys made their closing arguments and
instruct you that, members of the jury,
you
are to consider only the evidence presented.
You are specifically instructed not to
consider matters not presented and outside
the scope of the evidence presented in open
court during this trial. At this time I am
going to ask you to resume your
deliberations.
Plaintiff objected in the absence of the jury to the trial
court's failure to specifically instruct the jury that it was not
to consider the matter of insurance in its deliberations. We
disagree. Plaintiff cites
Spivey v. Wilcox Company, 264 N.C. 387, 141
S.E.2d 808 (1965), for the proposition that evidence as to
liability-insurance coverage is inadmissible because it is not
only irrelevant but also incompetent.
Id. at 390, 141 S.E.2d at
811-12. In
Spivey, the trial court permitted defense counsel to
elicit information from the plaintiff that he had received
workmen's (now worker's) compensation benefits as a result of the
accident. The Supreme Court reversed the case on other grounds,
and pointed out that on retrial the existence of liability
insurance or the receipt of worker's compensation benefits was
not a proper subject of inquiry before the jury.
Spivey does not
inform our decision in this case. Here, the trial court properly
instructed the jury to limit its deliberations only to matters in
evidence. Plaintiff cites no other authority in support of her
position.
Here, prior to the submissions of the questions about
insurance by the jury, the judge adequately instructed the jury
on the plaintiff's burden of proof, the law of negligence, and
consideration of expert testimony. The decision whether to give
the jury additional instructions about matters of insurance was
one within the trial court's sound discretion, and its decision
will not be overturned absent an abuse of that discretion.
It is well settled in this State thatthe court's charge must be considered
contextually as a whole, and when so
considered, if it presents the law of the
case in such a manner as to leave no
reasonable cause to believe the jury was
misled or misinformed, this Court will not
sustain an exception on the grounds that the
instruction might have been better.
Hanks v. Insurance Co., 47 N.C. App. 393, 404, 267 S.E.2d 409,
415 (1980). Here we hold there was no abuse of discretion by the
trial court in its further instruction to the jury. Plaintiff's
assignment of error is overruled.
IV. Expert Witness Instruction
[7]Plaintiff contends the trial court erred in failing to
instruct the jury that a chiropractor is an expert witness in
accordance with N.C. Gen. Stat. § 90-157.2. That statute reads
as follows:
A Doctor of Chiropractic, for all legal
purposes, shall be considered an expert in
his field and, when properly qualified, may
testify in a court of law as to:
(1) The etiology, diagnosis, prognosis, and
disability, including anatomical,
neurological, physiological, and
pathological considerations within the
scope of chiropractic, as defined in
G.S. 90-151; and
(2) The physiological dynamics of contiguous
spinal structures which can cause
neurological disturbances, the
chiropractic procedure preparatory to,
and complementary to the correction
thereof, by an adjustment of thearticulations of the vertebral column
and other articulations.
Id. (1997). In his charge to the jury, the trial judge
instructed the jury on the issue of expert testimony as follows:
In this case you have heard evidence
from witnesses who have testified as expert
witnesses. An expert witness is permitted to
testify in the form of an opinion in a field
where he purports to have specialized skill
or knowledge.
As I have instructed you, you are the
sole judges of the credibility of each
witness and the weight to be given to the
testimony of each witness. In making this
determination as to the testimony of an
expert witness, you should consider . . . the
evidence with respect to the witness'
training, qualifications and experience or
the lack thereof, the reasons, if any, given
for the opinion, whether or not the opinion
is supported by the facts you find from the
evidence, whether or not the opinion is
reasonable, and whether or not it is
consistent with other believable evidence in
the case.
You should consider the opinion of an
expert witness but you are not bound by it.
In other words, you are not required to
accept an expert witness' opinion to the
exclusion of the facts and circumstances
disclosed by other testimony.
The judge's charge to the jury is taken from the Pattern Jury
Instructions on expert witness testimony. N.C.P.I. Civil 101.25.
With regard to jury instructions, this Court
has held the use of the N.C.P.I. to be "the
preferred method of jury instruction."However, a new trial may be necessary if a
pattern instruction misstates the law.
Barber v. Constien, 130 N.C. App. 380, 385, 502 S.E.2d 912, 915
(citation omitted),
disc. review denied, 349 N.C. 351, 515 S.E.2d
699 (1998). We note that after Dr. Keith was qualified and
tendered as an expert witness during the trial, the trial court
instructed the jury that Dr. Keith “is accepted by the Court as
an expert in the field of chiropractic.” In the case before us,
we hold the trial court adequately instructed the jury on the
issue of expert testimony. The trial court did not err in failing
to instruct the jury that a chiropractor is an expert witness in
accordance with N.C. Gen. Stat. § 90-157.2 (1997). This
assignment of error is overruled.
V. Confidential Communications
[8]Plaintiff finally contends that the trial court erred in
allowing defense counsel to cross-examine plaintiff and then to
argue to the jury about privileged communications between
plaintiff and her attorney. On recross-examination defense
counsel questioned plaintiff concerning communications she had
with her attorney:
Q: The question was[,] is it your testimony
that you had no contact with your
attorney from the period of July '95
through November of '96?
MR. MOORE: Objection.
THE COURT: Overruled. You may answer.
A: Probably only in letter form from his
office.
Q: Okay, and during that time maybe through
letter form did you update your attorney
before November, '96 with respect to
your conditions?
MR. MOORE: Objection, Your Honor.
THE COURT: Overruled. You may answer.
* * * *
Q: Okay. So you never updated your
attorney with respect to your physical
condition before November of '96?
A: No.
MR. MOORE: Objection as to any
communication between this client and her
attorney.
THE COURT: Overruled.
With regard to the attorney-client privilege, our Supreme Court
has held that
It is well established that the
substance of communications between attorney
and client is privileged under proper
circumstances. See generally 1 Stansbury's
North Carolina Evidence § 62 (Brandis rev.
1973); McCormick on Evidence § 87-95 (2nd ed.
1972). Not all facts pertaining to the
lawyer-client relationship are privileged,
however. "[T]he authorities are clear that
the privilege extends essentially only to the
substance of matters communicated to an
attorney in professional confidence. Thus theidentity of a client or the fact that a given
individual has become a client are matters
which an attorney normally may not refuse to
disclose, even though the fact of having
retained counsel may be used as evidence
against the client." Colton v. United States,
306 F.2d 633, 637 (2nd Cir. 1962). We are of
the opinion that the fact that an attorney
did communicate with his client in a certain
manner on a certain date is likewise not
normally privileged information. "It is the
substance of the [attorney-client]
communication which is protected, however,
not the fact that there have been
communications." United States v. Kendrick,
331 F.2d 110, 113 (4th Cir. 1964). . . .
* * * *
It is well settled that the privilege
afforded a confidential communication between
attorney and client may be waived by the
client when he offers testimony concerning
the substance of the communication.
State v. Tate, 294 N.C. 189, 192-93, 239 S.E.2d 821, 824-25
(1978). Here, there was no violation of the attorney-client
privilege. Defendants' questions on cross-examination address
whether plaintiff had communications at all with her attorney on
the dates in question. Defendants did not seek to elicit the
substance of those conversations from plaintiff. Further, on
redirect examination, plaintiff's attorney opened the door about
communications plaintiff had with his firm prior to the filing of
the complaint:
Q: And is that when you met with the
lawyers in my office?
A: Yes.
Q: And is that when you provided us with
the information on which we based our
pleadings in this case?
A: Yes, sir.
Q: Had you come back in November and
visited us again?
A: No.
* * * *
Q: So you came and provided us with
information in July and it took my
office that much time to get it filed;
is that right?
A: Yes.
Since plaintiff opened the door about any contact she had with
her attorney and the dates such contact occurred, it was not
improper for defense counsel to cross-examine plaintiff aboutthis issue. This assignment of error is overruled.
Plaintiff was afforded a fair trial before a jury and an
able trial judge. In that trial we find
No error.
Judge TIMMONS-GOODSON concurs.
Judge GREENE dissents in part.
=====================
GREENE, Judge, dissenting in part.
I believe the trial court failed to exercise its discretion
in denying Plaintiff's request for attorney's fees under N.C.
Gen. Stat. § 6-21.1 and therefore that denial must be reversed
and remanded for reconsideration. Otherwise, I fully concur with
the majority.
The trial court denied Plaintiff's request for a section 6-
21.1 award of attorney's fees on the explicit grounds that the
"[j]ury award was substantially less than the offered judgment."
This is an indication the trial court may have believed it was
required to deny Plaintiff's request for attorney's fees on the
ground the jury verdict was less than the offered judgment. This
is simply not the law and also reveals the trial court did not
exercise its discretion in ruling on Plaintiff's section 6-21.1attorney's fees request.
(See footnote 1)
See Calloway v. Motor Co., 281 N.C.
496, 505, 189 S.E.2d 484, 490-91 (1972) (motion denied as a
matter of law when it should have been decided as a matter of
discretion must be reversed and remanded); N.C.G.S. § 6-21.1
(1997) (attorney's fee award in discretion of court).
Rule 68 of our Rules of Civil Procedure does require the
trial court to assess plaintiff with "the costs incurred after"
the offer, if the plaintiff rejects an offer from the defendant
and the "judgment finally obtained" by the plaintiff is "not more
favorable than the offer." N.C.G.S. § 1A-1, Rule 68(a) (1990).
The "judgment finally obtained" is the final judgment entered by
the trial court, including the amount of the jury verdict and any
attorney's fees assessed pursuant to section 6-21.1. Poole v.
Miller, 342 N.C. 349, 354, 464 S.E.2d 409, 412 (1995). In this
case, a denial of attorney's fees on the basis of Rule 68 would
have thus been premature if based simply on the comparison of the
$900.00 jury verdict with the $4,100.00 offer. Furthermore, even
if the offer is determined to be more favorable than the
"judgment finally obtained," the trial court retained theauthority under N.C. Gen. Stat. § 6-21.1 to award attorney's fees
for legal services rendered to Plaintiff prior to the offer.
Purdy v. Brown, 307 N.C. 93, 98-99, 296 S.E.2d 459, 463 (1982).
Footnote: 1