Appeal by plaintiffs from judgment entered 10 April 2003 by
Judge Lindsay R. Davis, Jr. in Rowan County Superior Court. Heard
in the Court of Appeals 16 September 2004.
Plaintiffs appeal the trial court's ruling excluding evidence
of an insurance policy of defendant, American Bass Fishing Club,
Inc. (American). Plaintiffs also appeal the trial court's denial
of their motion for judgment notwithstanding the verdict, in which
they requested the trial court hold as a matter of law that an
agency relationship existed between defendants Bell and American.
For the reason discussed herein, we hold there was no error
committed in the trial of this case.
On 20 June 2001, the Williams family went to High Rock Lake in
Davidson County for a family outing. Shortly after arriving,
sisters Tiffany and Candace Williams went on a boat ride with their
mother's boyfriend, John Long. The three were on High Rock Lake,
leaving the Buddle Creek access area, as Bell's boat approached the
access area. Bell's boat collided with Long's boat, throwing both
girls into the water. Long was able to rescue Tiffany, who was
injured, but Candace drowned as a result of the accident.
The personal representatives of the Estate of Candace Williams
brought this action pursuant to N.C. Gen. Stat. § 28A-18-2, seeking
damages for wrongful death. Tonya Williams also sought damages for
personal injuries suffered by the minor child, Tiffany Williams.
Each of these claims was based on the negligence of defendant Bell.
Plaintiffs also asserted that at the time of the accident, Bell was
acting as an agent of American.
Since 2000, Bell was American's director for the Western
District of North Carolina. As the district director, Bell oversaw
the administration of local tournaments in his district. However,Bell was not an employee of American, he received no salary, and
had no full-time duties as district director.
The accident took place during American's national
championship tournament, which was held at High Rock Lake, starting
on 17 June and ending three days later on 20 June 2001
. Bell was
the principal organizer of the tournament. He arranged for
sponsorships, as well as for food and lodging for the contestants.
However, once the tournament began, Bell participated in the
tournament as a contestant and paid a registration fee. He 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, he 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.
On the day of the accident, Bell arrived at the tournament
towing his personal boat. There were at least two boat access
areas for High Rock Lake;
Southmont, where the main tournament
activities took place, and Buddle Creek. Bell put his boat into
the lake at Buddle Creek to avoid the crowds at the Southmont
access. The tournament began at approximately 5:30 a.m. Bell
fished until around 3:30 p.m., when he returned to the Southmont
dock to weigh the fish he had caught that day. In this tournament,
at the conclusion of each day's fishing, the fish were released
back into the lake following the weigh-in. Dan Jackson asked Bell
and a volunteer, Max Neal, to return the fish to the lake. Around4:15 p.m., Bell and Neal took a pontoon boat out onto High Rock
Lake and released the fish. Bell then returned to the Southmont
dock, where his wife was waiting. At about 5:00 p.m. Bell and his
wife got into Bell's personal boat, and proceeded from the
Southmont access to the Buddle Creek access, where Bell's boat
trailer was located. It was while Bell was going to the Buddle
Creek access that the collision with the boat containing Candace
and Tiffany Williams occurred.
The trial court submitted six issues to the jury, including
the issue of whether Bell was acting as an agent of American at the
time of the accident. At the conclusion of a ten-day trial, the
jury: (1) found that Bell's negligence was the sole cause of the
accident, (2) found that at the time of the accident Bell was not
acting as the agent of American; and (3) awarded substantial
damages to plaintiffs. Plaintiffs appeal.
 In plaintiffs' first assignment of error, they contend the
trial court erred in sustaining the objection of American to two
separate proffers made by plaintiffs. In order to discuss this
assignment of error, it is necessary to review the proffers made by
During Bell's testimony, plaintiffs made a proffer outside of
the presence of the jury that: (1) Bell had no personal insurance
applicable to the accident; and (2) Bell saw on the Internet the
amount of insurance coverage that American had in effect. Later in
the trial, plaintiffs sought to introduce answers to
interrogatories identifying American's insurance coverage, and to
also introduce a copy of the insurance policy. Before the trialcourt, plaintiffs argued that the existence of the insurance policy
goes to the issue of whether this gentleman [Bell] was in fact his
agent . . . . On appeal, plaintiffs contend the mere fact the
alleged principal obtained insurance which covered 'executive
officers and directors
', was evidence enough to weigh and influence
the jury's decision on this issue[,] based on the following
language contained in the insurance policy (emphasis in original).
Section II: - WHO IS AN INSURED
d. An organization other than a partnership,
joint venture or limited liability company,
you are an insured. Your executive officers
and directors are insureds, but only with
respect to their duties as your officers and
Rule 401 of the Rules of Evidence provides the general test
for relevant evidence. 'Relevant evidence' means 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 (2004).
Rule 404 and the rules that follow in Article 4 of Chapter 8C,
deal with situations that occur with sufficient frequency to
justify a specific rule. N.C. Gen. Stat. § 8C-1, Rule 401 official
commentary (2004). Rule 411 is such a rule, dealing with the
admissibility of evidence of liability insurance. N.C. Gen. Stat.
§ 8C-1, Rule 411 (2004). The general rule is that the existence of
liability insurance is not admissible to show a party acted
negligently or wrongfully. Id
. However, the rule does not require
the exclusion of evidence of insurance for other purposes, such as
proof of agency. Id
. The official commentary to Rule 411 statesthat [a]t best the inference of fault from the fact of insurance
coverage is a tenuous one, as is its converse. More important, no
doubt, has been the feeling that knowledge of the presence or
absence of liability insurance would induce juries to decide cases
on improper grounds. N.C. Gen. Stat. § 8C-1, Rule 411 official
commentary (citing McCormick on Evidence
§ 168 (John W. Strong gen.
While Rule 411 does not prohibit the admission
of evidence of liability insurance to establish agency, the
evidence must still meet the relevancy requirements of Rule 401 to
In deciding whether evidence of insurance should be received
under Rule 411, a trial court should engage in the following
analysis: (1) Is the insurance coverage offered for a purpose other
than to show that a person acted negligently or otherwise
wrongfully (Rule 411); (2) If so, is the evidence relevant to show
that other purpose (Rule 401); and (3) If so, is the probative
value of the relevant evidence substantially outweighed by the
factors set forth in Rule 403.
While plaintiffs' first proffer is encompassed in their first
assignment of error, it is not argued in their brief, and is
therefore deemed abandoned. N.C. R. App. P. 28(b)(6). Even had
plaintiffs properly argued this matter, whether defendant Bell had
insurance is irrelevant to the issue of agency. Furthermore, the
amount of coverage provided by the insurance policy, standing
alone, in no way establishes that defendant Bell was an agent for
American. Such evidence could only serve to induce the jury to
decide the case on improper grounds. This evidence was notrelevant to the issue of agency and was properly excluded by the
 Plaintiffs' second proffer was of the insurance policy.
On appeal, our review is limited to whether the trial court abused
its discretion in excluding the evidence. Carrier v. Starnes
N.C. App. 513, 519, 463 S.E.2d 393, 397 (1995). In order for this
Court to conclude that the trial court abused its discretion, we
must find that the judge's decision 'lacked any basis in reason,'
or 'was so arbitrary that it could not have been the result of a
reasoned decision.' Id
. at 520, 463 S.E.2d at 397 (citations
omitted). The issue presented to the jury was not whether Bell was
a director of American. The evidence was uncontradicted that he
was a director. Rather, the issue to be decided by the jury was
whether Bell was acting as a director or agent of American at the
time of the collision. Neither the existence of the insurance
policy, nor the terms of that policy make the existence of agency
more or less probable. In this case, the insurance policy was not
relevant to the issue of agency under Rule 401, and therefore, the
trial court properly excluded this evidence. While the policy does
state that directors are insured, it is subject to the express
limitation: but only with respect to their duties as your officers
and directors. This limitation eliminates any possible relevance
of the insurance policy to the issue of agency. Instead, this
provision merely restates the issue to be decided by the jury.
The evidence of insurance, as presented to the trial court in
the context of the particular facts of this case, was not relevant
to the issue of agency. The evidence not being relevant, it wasunnecessary for the trial court to perform the balancing test under
The trial court did not err in sustaining American's objection
to this evidence, as this ruling did not lack for any basis in
reason, nor was it so arbitrary that it could not have been the
result of a reasoned decision. Carrier
, 120 N.C. App. at 520, 463
S.E.2d at 397.
 In plaintiffs' second assignment of error, plaintiffs
contend the trial court erred in denying their motion for judgment
notwithstanding the verdict and for a new trial. We disagree.
Initially, we note that plaintiffs failed to argue in their
brief that the trial court erred in denying their motion for a new
trial, and that contention is deemed abandoned. N.C. R. App. P.
In reviewing the denial of a judgment notwithstanding the
verdict, our review is limited to whether, upon examination of all
the evidence in the light most favorable to the non-moving party,
and giving the non-moving party the benefit of every reasonable
inference, the evidence is sufficient to be submitted to the jury.
Monin v. Peerless Ins. Co.
, 159 N.C. App. 334, 340, 583 S.E.2d 393,
397 (2003). If there is more than a scintilla of evidence to
support the non-movant's position, the court should deny a motion
for judgment notwithstanding the verdict. Id
. at 340, 583 S.E.2d
398. Stated another way, if there was conflicting evidence as to
whether defendant Bell was acting as an agent of American at the
time of the accident, then the trial court was required to submitthis issue to the jury for resolution. See McLamb v. Beasley
N.C. 308, 320, 11 S.E.2d 283, 291 (1940).
It is undisputed that Bell was a director for American and was
one of the primary organizers of the National Tournament held in
2001 at High Rock Lake. However, Bell was not in charge of the
tournament, and in fact played no part in the tournament other than
as a contestant. The only assistance Bell provided was to return
the fish caught that day back into the lake, at the request of the
national tournament director. After Bell and a volunteer finished
this task, they returned to the Southmont dock. Bell and his wife
then got into Bell's personal boat and proceeded to the Buddle
Creek access, where Bell had left his boat trailer. It was while
returning to the Buddle Creek access area that the collision with
the Williams boat occurred.
Bell's activities on 20 June 2001 were of a personal nature,
as a contestant in the tournament, with the exception of the time
that he returned the fish to the lake on behalf of American. There
was ample evidence from which the jury could have found that Bell's
activities on behalf of American had terminated once he returned to
the Southmont access area, got into his personal boat with his
wife, and proceeded to the Buddle Creek access area. See McIlroy
v. Motor Lines
, 229 N.C. 509, 512-13, 50 S.E.2d 530, 530-31 (1948)
(reversing the jury's verdict against the employer because the
evidence showed the employee was acting solely for his own purpose
where the employee was driving the company truck to visit his aunt
when the accident occurred, thus there was a total departure from
the employer's business).
The evidence reveals that Bell had completed the task of
returning the fish to the lake for American and had resumed his own
personal activities at the time of the accident. As a result,
there was more than a scintilla of evidence from which the jury
could have concluded that Bell was not acting as the agent of
American at the time of the collision. The trial court properly
denied plaintiff's motion for judgment not withstanding the
Plaintiffs cite the case of Keziah v. Monarch Hosiery Mills
71 N.C. App. 793, 323 S.E.2d 356 (1984) in support of the
proposition that Bell was acting as an agent of American at the
time of the accident. In Keziah
, the plaintiff's deceased husband
attended a golf tournament for the stated purposes of promoting
golf socks sold by his employer, making future business contacts,
and to play golf. On his way home from the tournament, the
employee died in a plane crash and the deceased's widow filed a
workers' compensation claim. The issue presented was whether the
employee died while on a business trip or a personal trip. The
employer filed a workers' compensation form, which stated the
employee died on a business trip. Although the employer pointed
to evidence tending to show it was a personal trip, this Court held
there was competent evidence to support the Industrial Commission's
finding that the employee died in the course and scope of his
employment. There is no holding in Keziah
that is controlling on
the issues presented in this case. Rather, this Court reached its
decision in Keziah
based upon the application of the appropriatestandard of review for appellate courts regarding decisions of the
Industrial Commission. This assignment of error is without merit.
Judge CALABRIA concurs.
Judge ELMORE concurs in result with separate opinion.
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 ofthe 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.
Question: 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
Question: And they can volunteer also to
assist with the nationals tournament?
Question: But there is no official duties of a
local tournament, duties related to a national
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
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
While the proffered evidence of insurance may not be highly
probative of whether Bell was American's agent at the time of the
accident, it does, however, have a tendency to show that Bell might
actually be an agent of American, a point I see as hardly
uncontradicted 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 authorizedrelationship that never existed.
(See footnote 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
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 andduring 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
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 actions 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
North Carolina Rule of Evidence 411 states:
Evidence that a person was or was not insured
against liability is not admissible upon theissue 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.
(See footnote 2)
Finally, 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
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.