Appeal by plaintiff from judgment entered 23 March 2000 by
Judge Timothy L. Patti in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 28 March 2001.
Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin
Smith, for plaintiff-appellant.
Steven J. Colombo, P.A., by Steven J. Colombo, Kenneth M.
Gondek, and Marc H. Amin, for defendant-appellee.
TIMMONS-GOODSON, Judge.
Joanne C. Williams (“plaintiff”) appeals from a judgmententered pursuant to a jury's verdict finding Mia
McCoy
(“defendant”) negligent and awarding plaintiff $3,000.00 in
damages. Based upon our review of the record and arguments of
counsel, we reverse the judgment and remand for a new trial on all
issues.
Plaintiff filed an action against defendant claiming personal
injury resulting from a 1997 automobile accident between the two
litigants. Based upon a pre-trial motion by defendant, the trial
court instructed plaintiff not to testify “that there was liability
insurance, reference any conversations or contact with liability
insurance adjusters, etcetera[,] pursuant to [North Carolina Rule
of Evidence] 411.” Plaintiff objected to the court's pre-trial
ruling. Plaintiff informed the court that she first hired an
attorney “after meeting [defendant's] claims['] adjuster.”
Plaintiff contended that restricting her testimony pursuant to Rule
411 was prejudicial, arguing that she would not be allowed to
explain why she hired an attorney if defendant so inquired. The
court reserved ruling based upon plaintiff's objections until such
time as the question was raised at trial.
Pertinent to the issues presented on appeal, plaintiff
testified concerning the facts surrounding the alleged automobile
accident. Plaintiff further testified that she visited and was
subsequently released from the emergency room immediately following
the accident. According to plaintiff, at the urging of her
husband, she visited a chiropractor four days after being released
from the emergency room. Plaintiff explained that she did not
visit the doctor sooner because he was unavailable. Plaintifffurther testified that in two prior work-related accidents she had
injured her knee, and that following the collision with defendant,
she experienced difficulty walking and a “clicking” sensation in
her knee, which she had not previously noticed.
On cross-examination, defense counsel questioned plaintiff
extensively concerning the timing of her visit to the chiropractor,
the symptoms she related to the emergency room staff, and why she
did not return to the emergency room although her condition
worsened. At some point in plaintiff's testimony, defense counsel
inquired, “Would you agree that you retained your attorney prior to
going to the chiropractor?” Plaintiff objected to the defense's
inquiry, but the court overruled the objection and ordered
plaintiff to answer. Plaintiff then responded, “No.” Defense
counsel further inquired, “You dispute that[,]” to which plaintiff
answered, “No, in fact, I was told not to talk about insurance.”
Again, the attorney inquired, “I asked you a question and that is
did you retain your attorney prior to going to the chiropractor
during which time you said your condition --,” and plaintiff
responded, “I don't remember.”
Following the aforementioned exchange, the court excused the
jury and reiterated to plaintiff that she was not to testify
concerning insurance. Plaintiff's attorney requested permission to
allow plaintiff to explain why she hired an attorney, arguing that
defense counsel was attempting to prejudice plaintiff by suggesting
that she was litigious. Plaintiff's attorney explained that
defense counsel was “building his whole case” around plaintiff's
alleged litigious nature. Plaintiff's attorney then quoted thefollowing from defense counsel's opening statement: “We're going
to show you that she's here for profit and that she stated it by
hiring an attorney before she went to see a doctor.” According to
plaintiff's attorney, “that [was defendant counsel's] whole theme.
He led her into that. As a matter of fact, you hired a lawyer
before you went to a chiropractor.”
The court subsequently allowed plaintiff to explain her answer
on voir dire, outside the presence of the jury. Plaintiff offered
the following explanation as to why she hired an attorney:
[Defendant's claims' adjuster] came to my
house. And he tried to persuade me to take
some money. And he told me that because I had
had an injury in '76 that I was wasting my
time and that I needed money and let them
settle with me so that I can get medical help.
The court again refused to allow plaintiff's testimony and further
instructed plaintiff that if she mentioned “insurance” again, he
would declare a mistrial and hold her in contempt of court.
Following the presentation of evidence, arguments from
counsel, and jury instructions, the jury returned its verdict,
finding defendant negligent and awarding plaintiff $3,000.00 in
damages. The court denied a subsequent motion by plaintiff for a
new trial and entered judgment based upon the jury's verdict,
taxing the cost of the action to plaintiff. From this judgment,
plaintiff appeals.
[1]By her first assignment of error, plaintiff argues that
the court erred in failing to sustain her objection to defense
counsel's inquiry concerning the date upon which she retained an
attorney. As a preliminary issue, we note that the attorney-client
privilege is not violated when an attorney questions the plaintiff
concerning whether she had communications with an attorney on a
particular date, as long as such questioning does not probe the
substance of the client's conversation with her attorney.
State v.
Tate, 294 N.C. 189, 192-93, 239 S.E.2d 821, 824-25 (1978);
Blackmon
1999umgardner, 135 N.C. App. 125, 141, 519 S.E.2d 335, 344-45
(1999). As defense counsel's inquiry did not concern the substance
of plaintiff's conversation with her attorney, the only question
that remains is whether the date plaintiff hired her attorney was
relevant. We believe that it was.
Relevant evidence is “[any] evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401
(1999). The aforementioned “standard gives the [trial court] great
freedom to admit evidence because the rule makes evidence relevant
if it has
any logical tendency to prove any fact that is of
consequence.”
State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d
226, 228 (1991) (citation omitted).
This Court has previously indicated that inquiry into when a
plaintiff hired an attorney could be relevant, given certain limited
circumstances.
See Thompson v. James, 80 N.C. App. 535, 342 S.E.2d
577 (1986). In
Thompson v. James, the defendant sought to introduce
evidence that the plaintiff visited an attorney prior to visiting
a doctor and that he had filed two other lawsuits within a
relatively short time of filing the one at issue in
Thompson. ThisCourt found that the aforementioned evidence, solicited with
objection, “was relevant to an issue being tried . . . and it was
also admissible for the purpose of impeaching plaintiff's
credibility and showing his bias as a witness.”
Id. at 536, 342
S.E.2d at 578.
Plaintiff contends that
Thompson did not permit the challenged
inquiry by the defense. Plaintiff argues that because the
Thompson
court also found the admission of the evidence in question harmless,
that portion of the
Thompson decision concerning the date of hire
question was
dicta and therefore has no import. We disagree.
We recognize that the
Thompson court found, based upon the
plaintiff's failure to object to like evidence during the trial and
other evidence bearing on plaintiff's credibility, that the
admission of the evidence was harmless. However, we find that this
conclusion was stated in the alternative, while the essence of the
Thompson court's decision was that evidence concerning when a
litigant seeks legal counsel can, in some instances, be admissible.
Speaking to this issue, the Court stated:
An important issue in the case was the extent
of plaintiff's injury and even if he had one,
and contacting his lawyer before he did his
doctor could indicate that his injury was not
as severe as he claimed; it could also
indicate, along with the other evidence
discussed below, that he has an unduly
litigious nature, a proper ground for
impeachment, we believe, in a case based on
circumstances that suggest exaggeration.
Id. (citation omitted).
Plaintiff further argues that even if
Thompson is applicable
to the present case, evidence concerning the date she hired an
attorney was still inadmissible, because there was no evidence tootherwise support defendant's characterization of her as litigious.
According to plaintiff, defendant's inquiry amounted to no more than
a “cold question” intended only to infer that she was litigious in
nature. With plaintiff's contentions, we again disagree.
Plaintiff's argument misapprehends the law.
Thompson indicates
that inquiry concerning when plaintiff hired an attorney is
admissible to impeach a litigious plaintiff
and is relevant to rebut
the existence and extent of plaintiff's injuries from the accident,
if evidence exists to support the inquiry on either basis. Although
there was indeed no evidence that plaintiff was litigious, in that
she had a tendency to file lawsuits, the extent of her injuries was
a major issue at trial.
In fact,
the majority of plaintiff's
testimony during both direct and cross-examination concerned the
extent of her injuries--the injuries which she reported to the
emergency room personnel, the injuries she reported to the
chiropractor, what caused her to wait four days before going to the
chiropractor, and why she did not return to the emergency room when
her symptoms worsened. There was also a question concerning a
preexisting injury to plaintiff's knee, which she claimed to have
reinjured in the accident. Just prior to the question concerning
when she sought legal advice, plaintiff testified that her
“condition worsened from the date of the accident” and that she had
“not been the same,” although she did not revisit the emergency room
and instead waited until, as she claimed, the chiropractor was
available. Furthermore, during the pre-trial proceedings, defense
counsel specifically informed the court that the date of hire
question would be posed to discredit the severity of plaintiff'sinjuries, not to impeach her as litigious.
As there was a question concerning the extent of plaintiff's
injury at trial, we conclude, in accordance with
Thompson, that the
challenged inquiry was relevant, and therefore, the court did not
err in overruling objections to its admission at trial.
Compare
Corwin v. Dickey, 91 N.C. App. 725, 373 S.E.2d 149 (1988) (granting
new trial in negligence action because attorney's comments
concerning plaintiff's religious beliefs and criticizing the legal
system were blatant attempts to degrade plaintiff where no evidence
existed to support comments). Plaintiff's first assignment of error
is consequently overruled.
[2]By her next assignment of error, plaintiff contends that
the trial court erred in not permitting her to explain her answer
when asked whether she hired an attorney prior to visiting the
doctor. Plaintiff argues that her explanation was admissible for
a purpose other than to prove the existence of liability insurance
and that the court abused its discretion in not admitting it as
such. With plaintiff's arguments, we agree.
Rule 411 of our Rules of Evidence provides: “Evidence that a
person was or was not insured against liability is not admissible
upon the issue of whether he acted negligently or otherwise
wrongfully.” N.C. Gen. Stat. § 8C-1, Rule 411 (1999). Rule 411
represents a narrow exception providing for the exclusion of
otherwise admissible and relevant evidence.
See e.g., Medlin v.
Fyco, Inc., 139 N.C. App. 534, 539-40, 534 S.E.2d 622, 626 (2000)
(“where the reference to insurance is incidental and conveys, at
most, merely the idea that coverage exists, 'a mistrial would seem
rarely, if ever, to be justified'”),
disc. review denied, 353 N.C.
377, 547 S.E.2d 12 (2001). See generally 1 Kenneth S. Broun,
Brandis & Broun on North Carolina Evidence, § 108, p. 333 (5th ed.
1998). As such, the Rule does not absolutely bar the admission of
evidence concerning liability when that evidence is “offered for
another purpose, such as proof of agency, ownership, or control, or
bias or prejudice of a witness.” Id. The exceptions listed in the
Rule are nonexclusive, see Commentary to N.C.R. Evid. 411, as Rule
411 only excludes insurance evidence “as an independent fact, i.e.,
solely on the issue of negligent or wrongful conduct” but not if it
“is offered to achieve a collateral purpose.” Carrier v. Starnes,
120 N.C. App. 513, 516, 463 S.E.2d 393, 395 (1995) (citations
omitted).
In reviewing whether to admit or exclude evidence under Rule
411, the trial court must consider the mandate of North Carolina
Rule of Evidence 403. See Warren v. Jackson, 125 N.C. App. 96, 479
S.E.2d 278 (1997). Rule 403 specifies, in pertinent part, that
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 . . . .” N.C. Gen.
Stat. § 8C-1, Rule 403 (1999). The Rule 403 balancing test falls
within the exclusive purview of the trial court, and therefore the
court's decisions under Rule 403 will not be disturbed on appeal
absent an abuse of discretion. Warren, 125 N.C. App. at 99, 479
S.E.2d at 280. An abuse of discretion occurs when the court's
decision “is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision." State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413
(1998) (citation omitted).
It is clear to this Court that Rule 411 did not bar plaintiff's
explanation as to why she hired an attorney, in light of the
circumstances presented by the instant case. A review of the
transcript reveals that based upon pre-trial discovery, defense
counsel knew plaintiff would testify that her motivation for hiring
an attorney was a negative encounter with defendant's insurance
adjuster. It appears that during opening statements, defense counsel
then argued that plaintiff hired an attorney prior to seeing the
doctor. Plaintiff's explanation as to defense counsel's subsequent
question did not bear directly on defendant's liability or wrongful
conduct, but, as a collateral issue, simply explained the somewhat
confusing answer solicited by the defense. We therefore find that
plaintiff's examination should not have been excluded per Rule 411.
Concerning Rule 403, our review of the transcript reveals that
the court did not consider or balance the risk of unfair prejudice
to defendant's case with the above-noted probative value of
plaintiff's explanation. Pursuant to a pre-trial motion, the court
ruled there was to be no reference to insurance and reserved ruling
on whether plaintiff's explanation was admissible. When the issue
arose, the court allowed plaintiff to give voir dire testimony
concerning her explanation but instructed her, without reconsidering
its prior ruling, that any mention of insurance would result in a
mistrial and even contempt of court.
Certainly, we recognize, as pointed out by defendant, that had
plaintiff been allowed to explain why she hired an attorney, it mayhave had some prejudicial effect on defendant. However, this
prejudice does not outweigh the probative value of plaintiff's
testimony and the prejudice she suffered in not being allowed to
explain her answer. This is true especially in light of the clear
implication that plaintiff only visited her doctor after seeking an
attorney's advice, the fact that the extent of plaintiff's injuries
was a major issue at trial, and the apparent trial strategy by
defendant to characterize plaintiff as blatantly seeking profit.
In fact, we wholeheartedly agree with plaintiff: “Without [] being
allowed to explain herself, the total weight of [defendant's] attack
. . . fell on [plaintiff] and affected the verdict. The [trial
court's] denying her explanation allowed the jury to assume the
worst, that she had an improper motive in hiring an attorney, was
litigious, and therefore lacked credibility.”
Furthermore, in assessing the prejudice to defendant which may
have resulted from plaintiff's testimony, we note the realities of
what the jury already assumes about defendants in motor vehicle
cases. The jurors, who more than likely drive automobiles, would
also more than “likely [] know that in all probability there is
insurance, that the matter has been investigated by the insurer's
claim agent or attorney, and that insurer has employed the trial
counsel.” Broun, supra at 333. More importantly, having taken voir
dire testimony of plaintiff's explanation, the court could have
further limited any prejudice to defendant by restricting the import
of plaintiff's testimony and giving a limiting instruction, if so
requested. See N.C. Gen. Stat. § 8C-1, Rule 105 (1999) (“When
evidence which is admissible as to one party or for one purpose butnot admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly.”). Because
none of the aforementioned was considered by the trial court, we
find its decision to exclude plaintiff's explanation unsupported by
reason. We therefore conclude that the trial court abused its
discretion in failing to admit plaintiff's explanatory testimony,
and considering the obvious prejudice suffered by plaintiff, the
court's abuse of discretion constituted reversible error.
As we determine plaintiff is entitled to a new trial based on
the aforementioned reasoning, we find it unnecessary to address
plaintiff's remaining arguments. Accordingly, the judgment of the
trial court is reversed, and we remand the case for a new trial.
Reversed and remanded.
Judges WYNN and HUDSON concur.
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