On appeal, Plaintiff contends the trial court erred by (I)
allowing Defendant's motion in limine excluding impeachment
evidence during the compensatory phase of the trial; (II)
permitting counsel for the unnamed defendant underinsured motorist
carrier, State Farm Insurance Company, to participate fully as if
it were a named party without identifying such party; (III)
allowing Defendant's oral motion to amend her answer to admit
negligence after the start of the trial; and (IV) excluding
evidence of injuries and damages sustained by Plaintiff which were
not disputed by Defendant.
Plaintiff first contends the trial court erred in allowing
Defendant's motion in limine excluding evidence during the
compensatory phase of the trial that Defendant consumed alcohol
before the wreck, and that shortly after the wreck, Defendant fileda police report falsely claiming her car had been stolen. We
Preliminarily, we note that Section 1D-30 of the 2003 North
Carolina General Statutes permits, upon motion of a defendant, the
issues of liability and compensatory damages to be tried separately
from the issues of liability and punitive damages. In such
bifurcated trials, [e]vidence relating solely to punitive damages
shall not be admissible until the trier of fact has determined that
the defendant is liable for compensatory damages and has determined
the amount of compensatory damages.
N.C. Gen. Stat. § 1D-30
Here, during the compensatory phase of the trial, Defendant,
testifying as Plaintiff's witness, stated:
I would say . . . everybody was probably
doing 25 to 35, and then the light turned
yellow and I saw his brake lights . . . . I
just couldn't get stopped in time.
Defendant was unable to offer more on her speed at the moment of
impact. Regarding Defendant's observations of Plaintiff during the
accident, Defendant testified:
[a]t the very moment that I struck
[Plaintiff's] car I did not observe his body
in [the] car . . . .
And, regarding damages to Plaintiff's car, Defendant testified:
I did not see [Plaintiff's] car. I left the
scene. I'm sure there was damage because I
struck the rear of his car.
As to whether she agreed that Plaintiff was injured in the
collision, Defendant responded: At the time of the accident I really didn't
see how anybody could be hurt. But if he's
hurt, he's hurt.
Counsel for Defendant objected, the jury was excused, and counsel
for Plaintiff conducted a voir dire of Defendant focusing on her
level of intoxication at the time of the accident, as well as her
false report to police that her car had been stolen. Defendant
acknowledged that she made a statement to police that she had
consumed a beer and a half to three beers on the day of and prior
to the accident, and that police found as many as ten empty beer
cans in her car. Defendant also confirmed that she falsely
reported her vehicle stolen. At the conclusion of the voir dire,
the trial court ruled that Plaintiff could not elicit evidence of
Defendant's impairment at the time of the accident nor of her false
claim to police.
In general, Section 1D-30 of the North Carolina General
Statutes precludes the admission of evidence relating solely to
punitive damages during the compensatory damages phase of a
bifurcated trial. N.C. Gen. Stat. § 1D-30 (2003); e.g., Boykin v.
148 N.C. App. 98, 557 S.E.2d 583
Plaintiff argues that admission of this evidence was relevant to
impeach the credibility of Defendant's testimony regarding her
perception of the impact's severity.
Under North Carolina Rule of Evidence 607, [t]he credibility
of a witness may be attacked by any party, including the party
calling him[,] N.C. Gen. Stat. § 8C-1, Rule 607 (2003);
[t]he impeaching proof must be relevant within the meaning of Rule401 and Rule 403 . . . . State v. Bell,
87 N.C. App. 626, 633,
362 S.E.2d 288, 292 (1987)
(citation, quotation, and emphasis
omitted). Rule 403 states that relevant evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice . . . . N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
Here, Defendant testified before the jury that she rear-ended
Plaintiff's car. However, she disputed the force of the impact,
stating, at the time of the accident I really didn't see how
anyone could be hurt. Moreover, in prior testimony before the
jury, she stated she did not observe Plaintiff's movements within
his vehicle and she left the scene before she could see the damage
she had done to Plaintiff's car. So, while Defendant testified to
the fact of an impact, her statements regarding the severity or
force of the impact had little probative value and were tempered by
her admission that she did not observe the effect of the impact on
Plaintiff or his vehicle.
The extent to which cross-examination for impeachment is to
be permitted rests largely in the discretion of the trial judge.
McCorkle v. Beatty
, 226 N.C. 338, 341, 38 S.E.2d 102, 105 (1946)
(citations omitted). This Court may reverse for abuse of
discretion only upon a showing that the trial court's order is
manifestly unsupported by reason.
Clark v. Pendland
, 146 N.C.
App. 288, 291, 552 S.E.2d 243, 245
(2001) (citation and quotation
Here, given the relatively low probative value of Defendant's
testimony and the inflammatory nature of her collateral acts, wecannot say the trial court's ruling was beyond the scope of reason.
Accordingly, we hold that the trial court did not abuse its
discretion by excluding this evidence under Rule 403.
Plaintiff next argues the trial court erred in permitting
counsel for the unnamed defendant underinsured motorist carrier,
State Farm Insurance Company, to participate fully as if it were a
named party without identifying such party. We disagree.
Under Section 20-279.21(b)(4) of the 1999 North Carolina
General, a party seeking underinsured motorist coverage, must
notify the underinsured motorist insurer of the action.
[u]pon receipt of notice, the underinsured motorist
insurer shall have the right to appear in defense of the claim
without being named as a party therein, and without being named as
a party may participate in the suit as fully as if it were a
. N.C. Gen. Stat. § 20-279.21(b)(4) (1999).
Plaintiff contends that while the underinsured motorist
statute states that an underinsured motorist carrier may
participate as fully as if it were a named party, the legislative
intent was not to provide insurance carriers an unfair advantage at
trial by allowing counsel for the defendant and
counsel for the
unnamed insurance carrier to participate at trial simultaneously.
Plaintiff cites Church v. Allstate Ins. Co.
, 143 N.C. App. 527, 547
S.E.2d 458 (2001) and Sellers v. North Carolina Farm Bureau Mut.
, 108 N.C. App. 697, 424 S.E.2d 669 (1993), as focusing on
the underinsured motorist insurance carrier's right to participateat trial, after
the tortfeasor had been released. Plaintiff argues
that these cases indicate it is appropriate for the underinsured
motorist insurance carrier to participate at trial, after the
tortfeasor's release, because the tortfeasor no longer has a
financial interest in the outcome. He contends, in contrast, that
when the tortfeasor continues to participate along side the
underinsured motorist insurance carrier, the plaintiff is
prejudiced by simultaneous confrontation from counsel for the
defendant as well as counsel for the underinsured motorist
insurance carrier. We do not find this argument persuasive.
Section 20-279.21(b)(4) of the 1999 North Carolina General
Statutes requires a party, injured by the operation of an
underinsured car, who sues to recover, to give the underinsured
motorist insurance carrier notice
when the claim is filed.
Gurganious v. Integron
108 N.C. App. 163, 423 S.E.2d 317 (1992).
Section 20-279.21(b)(4) further states that upon receipt of notice,
the underinsured motorist insurance carrier may participate as
fully as if it were a party, without being named as a party.
also Church v. Allstate Ins. Co.
143 N.C. App. 527, 547 S.E.2d 458
(2001) (holding it is a substantial right to appear at trial and
remain unnamed during the liability phase). And, even when the
tortfeasor is released from the action, the underinsured motorist
insurance carrier may continue the case in the tortfeasor's name.
E.g., Sellers v. N.C. Farm Bureau Mut. Ins. Co.
108 N.C. App. 697,
424 S.E.2d 669
(1993). Thus, the underinsured motorist insurance
carrier has the right to participate, at trial, as an unnamedparty, and our precedent holds that this right is not dependent
upon the participation of the tortfeasor.
Accordingly, we hold the trial court did not err in permitting
counsel for the unnamed defendant, the underinsured motorist
insurance carrier - State Farm Insurance Company, to participate
fully as if it were a named party, without identifying such party,
prior to the release of the tortfeasor or the primary insurance
carrier. We, therefore, reject this assignment of error.
Plaintiff next argues that the trial court erred in allowing
Defendant to amend her answer to admit negligence at the start of
the trial because it was untimely and prejudicial. We disagree.
Under Rule 15(a) of the North Carolina Rules of Civil
Procedure, a trial judge has broad discretion to grant or deny a
party's motion to amend his pleading by leave of the court. N.C.
Gen. Stat. § 1A-1, Rule 15(a) (2005); e.g., Watson v. Watson
N.C. App. 58, 270 S.E.2d 542
. A party objecting to the
grant or denial of an amendment made by leave of the court has the
burden of establishing how the grant or denial would result in
undue prejudice to that party. Id.
at 60, 270 S.E.2d at 544
Court can review the trial court's exercise of discretion only for
a clear showing of abuse. Id.
at 60-61, 270 S.E.2d at 544
abuse of discretion being a trial court order manifestly
unsupported by reason. Clark v. Penland
146 N.C. App. 288, 291,
552 S.E.2d 243, 245
(2001). Similar to the issue here, in Watson v. Watson
the trial court
granted the defendant's motion to amend his answer on the day trial
calendar was called, when the plaintiff had subpoenaed witnesses
from out of town.
49 N.C. App. 58, 270 S.E.2d 542
Court noted that North Carolina Civil Procedure Rule 15 had no time
limit, and the trial judge was given broad discretion
15(a) to grant or deny a motion to amend the pleading by leave of
the court. Id.
Thus, this Court held the trial judge was within
his sound discretion to grant the defendant's motion to amend his
Here, Plaintiff argues that the trial court's grant of
Defendant's motion to amend her answer prejudiced his ability to
present his case, as he had already prepared an opening statement,
trial themes, and a tentative witness order. However,
controls the issue in t
his case, we hold that
court was within its discretion to allow the amendment,
has not demonstrated undue prejudice. Accordingly, we
hold the trial court did not err in granting Defendant' motion to
amend her answer.
Plaintiff next contends the trial court erred in excluding
relevant testimony by Defendant regarding the injuries and damages
sustained by Plaintiff, which was not disputed by Defendant.
We summarily reject this argument. At trial, Defendant
testified, that at the time of the accident, she did not see
Plaintiff in the car nor did she see the damage done to Plaintiff'svehicle. In fact, no evidence was adduced to indicate that
Defendant could competently testify to Plaintiff's injuries
sustained in the accident. Accordingly, we hold that the trial
court did not err in precluding testimony by Defendant as to the
extent of injuries and damages sustained by Plaintiff.
We have examined Plaintiff's remaining arguments and find them
Appellee-Defendant's Cross Arguments on Appeal
On cross-appeal, Defendant contends the trial court erred by
(I) denying her motion in limine to exclude all testimony and
evidence related to Plaintiff's independent medical examination by
Dr. Gualtieri; (II) denying her partial Rule 50 motion regarding
Plaintiff's claim for lost wages as an element of damages; and
(III) excluding evidence of Plaintiff's casino gambling.
Defendant first argues the trial court erred in denying her
motion in limine excluding all testimony and evidence related to
Plaintiff's independent medical examination by Dr. Gualtieri, an
expert witness. We disagree.
Regarding the admission of expert testimony, our Supreme Court
in Howerton v. ARAI Helmet, LTD.
reiterated that trial courts are
afforded a wide latitude of discretion. 358 N.C. 440, 597 S.E.2d
674 (2004). The Court stated, [g]
iven such latitude, it follows
that a trial court's ruling on the qualifications of an expert or
the admissibility of an expert's opinion will not be reversed on
appeal absent a showing of abuse of discretion. Id.
458, 597S.E.2d at 686 (citations and quotations omitted); see also, State
, 341 N.C. 513, 528, 461 S.E.2d 631, 640 (1995) (Indices of
reliability include the expert's use of established techniques,
the expert's professional background in the field, the use of
visual aids before the jury so that the jury is not asked to
sacrifice its independence by accepting [the] scientific hypotheses
on faith, and independent research conducted by the expert.
Here, Dr. Gualtieri testified that in evaluating Plaintiff, he
allowed Plaintiff to take home and complete psychological exams.
Defendant contends that Dr. Gualtieri's methods of proof were not
sufficiently reliable because he could not verify that Plaintiff
actually completed the examinations. Defendant further argues Dr.
Gualtieri failed to adequately investigate the circumstances
surrounding the accident, citing Dr. Gualtieri's failure to review
the police accident report, interview witnesses, view photographs
of the vehicles, or obtain medical records from Plaintiff's regular
physicians. In addition, Defendant argues that in measuring
changes in Plaintiff's cognitive level pre- and post-accident, Dr.
Gualtieri failed to evaluate Plaintiff's pre-accident cognitive
level by use of formal psychological instruments. Last, Defendant
argues that Dr. Gualtieri's use of office staff, none of whom were
licensed psychologists, to administer and score psychological
exams, was a violation of the North Carolina Psychology Practice
At trial, Dr. Gualtieri testified that he worked thirty-six
years in the practice of medicine - including twenty-eightspecializing in the practice of neuropsychiatry, with approximately
one-hundred and twenty published articles in the field, as well as
three books. The trial court then received Dr. Gualtieri as an
expert witness in the field of neuropsychiatry.
Here, Defendant does not criticize the examinations given
Plaintiff, only the manner in which Dr. Gualtieri administered
those examinations. Thus, Defendant's contention regarding the
control of the exam environment applies to the weight that should
be given to Dr. Gualtieri's testimony, not its admissibility.
Since the weight is a jury matter and not a question for this court
to decide, we reject this argument.
Next, Defendant argues that Dr. Gualtieri failed to adequately
investigate the effects of the accident by failing to review police
accident reports, interview witnesses, view photographs of the
vehicles, or obtain medical records from Plaintiff's regular
physicians. We note that Dr. Gualtieri testified that in the
course of a routine medical evaluation he asks patients for a
medical history, and it is not his practice to contact prior
treating doctors, unless the patient is present because of a
referral. However, Dr. Gualtieri testified that regarding
Plaintiff's examination, he did obtain medical reports, through
Plaintiff's attorney, and Plaintiff's symptoms were consistent with
the accident information Plaintiff supplied. Dr. Gualtieri found
no indication Plaintiff was feigning illness. As we find that Dr.
Gualtieri's testimony regarding his investigation of the
circumstances surrounding the accident applies to the weight thatthe jury should have given his testimony and not its admissibility,
we reject this assignment of error.
Defendant also contends that in evaluating changes in
Plaintiff's cognitive level, Dr. Gualtieri failed to evaluate
Plaintiff's pre-accident cognitive level by use of a formal
psychological instrument. At trial, Dr. Gualtieri testified that
while there were formal tests for cognitive ability, he felt they
were not necessary or relevant in Plaintiff's case. Dr. Gualtieri
described what he knew about Plaintiff's educational and
professional attainment - a college graduate who had climbed to the
position of corporate executive. Dr. Gualtieri further testified,
that based on these achievements, he estimated Plaintiff's pre-
accident cognitive level to have been at least average and maybe a
little above average, but Plaintiff's post-accident performance was
average or slightly below. Dr. Gualtieri further tempered his
opinion by acknowledging that he could not conclude Plaintiff's low
cognitive level performance was the result of injury sustained in
an accident or due to some other cause.
Given that on appeal, no argument was made stating that a
cognitive level test was not appropriate in determining brain
injury in the field of neuropsychiatry, and given that Dr.
Gualtieri explained the manner in which he conducted the test, we
uphold the trial court's determination to allow the jury to
determine for itself its reliability.
Defendant further argues that Dr. Gualtieri's use of office
staff, none of whom were licensed psychologist, to administer andscore psychological exams was a violation of the 2003 North
Carolina General Statutes Psychology Practice Act. That Act
defines psychology in pertinent part as psychological testing and
the evaluation or assessment of personal characteristics such as
intelligence, personality, abilities, interests, aptitudes, and
neuropsychological functioning; counseling, psychoanalysis,
psychotherapy, hypnosis, biofeedback, and behavior analysis and
therapy[.] N.C. Gen. Stat. § 90-270.2(8) (2003). Section 90-
270.16 states that [e]xcept as provided in G.S. 90-270.4 . . ., it
shall be a violation of [the Psychology Practice Act] for any
person not licensed in accordance with the provisions of [the
Psychology Practice Act] to practice or offer to practice
psychology . . . . N.C. Gen. Stat. § 90-270.16(b) (2003).
However, Section 90-270.4(e), titled Exemptions to the Psychology
Practice Act, states in pertinent part that [n]othing in [the
Psychology Practice Act] shall be construed to prevent qualified
members of other professional groups from rendering services
consistent with their professional training and code of ethics[.]
N.C. Gen. Stat. § 90-270.4(e) (2003).
At trial, Dr. Gualtieri testified that the battery of
psychological exams given to Plaintiff were procedures
psychiatrists have traditionally performed. Absent evidence to the
contrary, we can make no finding that the psychological examination
supervised by Dr. Gualtieri, a board certified neuropsychiatrist,
was not consistent with his professional training and code of
ethics. In sum, we hold the trial court did not err in denying
Defendant's motion to exclude Dr. Gualtieri's testimony.
Defendant next argues the trial court erred in denying her
Rule 50 motion, regarding Plaintiff's claim for lost wages as an
element of damages, as Plaintiff failed to present competent
evidence in support of any such claim, thereby entitling Defendant
to directed verdict. We disagree.
A motion for a directed verdict tests the legal sufficiency
of the evidence. Lee v. Rice
, 154 N.C. App. 471, 474, 572 S.E.2d
219, 221 (2002) (citation omitted). But, [a] defendant is not
entitled to a directed verdict or a judgment notwithstanding the
verdict unless the evidence, viewed in the light most favorable to
the plaintiff, establishes its defense as a matter of law.
Goodwin v. Investors Life Ins. Co.
, 332 N.C. 326, 329, 419 S.E.2d
766, 767 (1992) (citations omitted).
This Court noted in Iadanza v. Harper
damages include general and special damages, stating:
[G]eneral damages are such as might accrue to
any person similarly injured, while special
damages are such as did in fact accrue to the
particular individual by reason of the
particular circumstances of the case. . . .
Special damages are usually synonymous with
pecuniary loss. Medical and hospital expenses,
as well as loss of earnings . . . are regarded
as special damages in personal-injury cases.
Iadanza v. Harper
, 169 N.C. App. 776, 779, 611 S.E.2d 217, 221
(2005) (quotations and citations omitted). In the light most favorable to Plaintiff, the record provides
that he established a record of performance with his employer as a
sales representative and then a regional vice president until his
termination in 2000, after the accident. Evidence showed that
before the accident, Plaintiff was energetic but changed
significantly after the accident. Plaintiff had constant
headaches, moments of forgetfulness, and a general inability to
concentrate or focus, consistent with the effects of a mild
concussion. At best, this condition caused Plaintiff's work
performance to suffer ultimately resulting in his removal as sales
manager. As such, we cannot say the trial court's denial of
Defendant' Rule 50 motion for a directed verdict was error.
Accordingly, this assignment of error is rejected.
Defendant next argues the trial court erred in excluding the
testimony of Dr. Granager (an expert in the fields of psychiatry,
neuropsychiatry, and forensic psychiatry) regarding Plaintiff's
past gambling. Dr. Granager testified that by creating a budget,
an amount of money he was willing to lose, when gambling in 2001,
2003, and 2004, Plaintiff evidenced planning, an executive brain
function inconsistent with traumatic brain injury.
Under Rule 403 of the North Carolina Rules of Evidence, a
trial court may exclude even relevant evidence if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needlesspresentation of cumulative evidence. N.C. Gen. Stat. § 8C, Rule
Here, the trial court weighed the probative value of Dr.
Granager's opinion as well as the value the evidence held in
sustaining the opinion, against the prejudicial affect of
submitting evidence involving gambling to the jury. The trial court
In light of . . . plaintiff's business
activities and starting a new business,
founding the corporation, the franchise,
retaining a lawyer and (sic) have considered
those factors together with the prejudicial
effects (sic) that the evidence with regard to
gambling on the part of the plaintiff.
And, based upon that evidence, those
considerations and Rule 403, the balancing
requirement by the trial court, the [c]ourt
finds that the probative value of this
evidence is outweighed by the prejudicial
effect of the evidence . . . .
In light of the trial court's reasoning, we find no abuse of
discretion by the trial court in excluding the proffered evidence
under Rule 403. Accordingly, we uphold the trial court's ruling to
exclude the testimony of Plaintiff's gambling under Rule 403 as
substantially more prejudicial than probative.
We have examined Defendant's remaining arguments on cross-
appeal and find them to be unpersuasive.
Chief Judge MARTIN and Judge MCGEE concur.
Report per rule 30(e).
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