ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
ROBERT R. FOOS, JR. ROBERT HUNT
Terre Haute, Indiana
COURT OF APPEALS OF INDIANA
WILLIAM STONE, )
vs. ) No. 11A05-0008-CV-349
BARBARA STAKES, )
APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Ernest Yelton, Judge
Cause No. 11C01-0806-CT-163
June 21, 2001
OPINION - FOR PUBLICATION
Barbara Stakes sued William Stone for injuries she sustained in an automobile accident.
The case was submitted to a jury, and the jury returned a
verdict in favor of Stakes in the amount of $25,000. Stone now
appeals. We affirm.
Stone raises a single issue for our review, which we restate as whether
the trial court properly denied his motion for mistrial when the plaintiffs counsel
informed the jury pool during voir dire that the firm representing him was
the Litigation Section of an insurance company.
Facts and Procedural History
On July 29, 1996, an automobile in which Stakes was a passenger was
struck by an automobile operated by Stone. Stakes initiated a lawsuit against
Stone for injuries she sustained in the accident.
See footnote Stone failed to file
an answer or other responsive pleading, and Stakes made a motion for default
judgment. The trial court granted the motion for default and entered judgment
for Stakes. Thereafter, Stakes moved for a hearing on damages. A
jury trial on the issue of damages was scheduled. Mr. Robert Foos
of Conover & Foos filed an appearance on behalf of Stone and filed
a pre-trial motion in limine seeking to exclude, among other things, any reference
at trial to the fact that Stone carried liability insurance through any carrier
for any reason . . . . R. 49. This motion
in limine was granted with the exception of Voir Dire. R. 83.
The morning of trial, Mr. Marc Lloyd filed an appearance on behalf of
Stone which gave his address as Conover & Foos Litigation Section of Warrior
Insurance Group, Inc. R. 84. Jury selection began with Stakes counsel
introducing himself and his client and asking if any of the prospective jurors
knew him, his client, or members of his law firm.See footnote He also
introduced Stones counsel by saying, Mr. Stone is appearing here today by his
attorney from Indianapolis, Marc Lloyd. He is with the firm of Conover
and Foos of the Warrior Insurance litigation section of the Warrior Insurance
Group. R. 146. Lloyd objected, and his objection was overruled.
Stakes counsel asked if any of the prospective jurors knew Mr. Lloyd, any
member of his firm, or if they had any interest in or affiliation
with [Gallant] Insurance Company or the Warrior Insurance Group? R. 147.
When Stakes counsel completed his portion of the voir dire, Stones counsel asked
to approach the bench and moved for mistrial and the striking of the
jury due to [Stakes] counsel[s] statement relative to insurance. R. 127.See footnote
Stones motion was overruled, and the trial proceeded on the issue of damages.
The jury returned a verdict in favor of Stakes in the amount
of $25,000. Stone now appeals.
Stone contends that the trial court erred in denying his motion for mistrial
where the plaintiff, by introducing his counsel to the jury pool as a
member of the litigation section of an insurance company, impermissibly made reference to
the fact that Stone carried liability insurance.
I. Standard of Review
The trial courts determination of whether to grant a mistrial is afforded great
deference on appeal because the trial court is in the best position to
evaluate the relevant circumstances of a reference and its impact on the jury.
City of Indianapolis v. Taylor, 707 N.E.2d 1047, 1058 (Ind. Ct. App.
1999), trans. denied. To prevail on appeal from the denial of a
motion for mistrial, the movant must demonstrate that the statement in question was
so prejudicial and inflammatory that he was placed in a position of grave
peril to which he should not have been subjected. Id. However,
mistrial is an extreme remedy to be granted only when no other less
drastic measure can rectify the perilous situation. Id. We determine the
gravity of the peril by the probable persuasive effect of the misconduct on
the jurys decision rather than by the degree of impropriety of the conduct.
II. Reference to Insurance
Our supreme court has long held that evidence that a defendant has insurance
is not allowed in a personal injury action and that its admission is
prejudicial. Rausch v. Reinhold, 716 N.E.2d 993, 1002 (Ind. Ct. App. 1999),
trans. denied. See Pickett v. Kolb, 250 Ind. 449, 237 N.E.2d 105,
107 (1968); Martin v. Lilly, 188 Ind. 139, 121 N.E. 443, 445 (1919).
Normally, when inadmissible evidence of insurance coverage is interjected into a trial,
it is within the trial courts discretion to withdraw the case from the
jury or admonish the jury. Dukes GMC, Inc. v. Erskine, 447 N.E.2d
1118, 1120 (Ind. Ct. App. 1983). The rationale for not allowing evidence
regarding insurance is that if the jury becomes aware of the fact that
the defendant carries liability insurance and will not bear the brunt of any
judgment, the jury may be prejudiced in favor of an excessive verdict.
Rust v. Watson, 141 Ind. App. 59, 76, 215 N.E.2d 42, 51 (1966).
On the other hand, if the jury becomes aware of the fact
that the defendant does not have insurance and will bear the entire burden
of any judgment, the jury may be prejudiced in favor of a minimal
verdict. Strand v. Pederson Bros. Co., 140 Ind. App. 621, 623, 224
N.E.2d 689, 690 (1967).
A. Waiver of Claim
We first address Stakes contention that Stone has waived the issue of
the improper injection of information about insurance. The parties agree that at
a sidebar conference during voir dire, counsel for Stone moved for a mistrial
and asked that the jury be stricken. This motion was denied.
Stakes contends that in addition to moving for a mistrial, Stone should have
asked that the jury be admonished or tendered an instruction directing the jury
to disregard any reference to insurance. We acknowledge the case law which
would suggest that the remedy for the improper interjection of insurance into a
trial is to seek an admonishment or tender an instruction. See Dukes
GMC, 447 N.E.2d at 1121 ([I]f the trial court does not admonish the
jury regarding the interjection of insurance and an admonition is deemed necessary by
the injured party, then an instruction should be tendered.); Clouse v. Fielder, 431
N.E.2d 148, 153 (Ind. Ct. App. 1982) (When inadmissible evidence of insurance coverage
is interjected into a trial, the trial court may withdraw the case from
the jury or admonish the jury.). Stakes asserts that Stones failure to
request an admonishment waives any error. However, Stones counsel asserted at oral
argument that to request such an admonishment or instruction would only emphasize the
reference and compound the error. Because Stone did make a motion seeking
a remedy, albeit a drastic remedy, for the allegedly improper reference, we decline
to decide this case on the basis of waiver, and turn instead to
B. Interjection of Insurance
The crux of Stones argument is that he was prejudiced by Stakes reference
to insurance during voir dire because the jury verdict may have been compromised
or somehow influenced by the disclosure. It is important to note at
this juncture the precise timing of the reference. The reference was made
during voir dire, while the parties were questioning the prospective jurors, and not
made during the trial itself. The trial court is afforded broad discretion
in regulating the form and substance of voir dire examination. Antcliff v.
Datzman, 436 N.E.2d 114, 121 (Ind. Ct. App. 1982). The purpose of
allowing voir dire examination of prospective jurors is to permit the rational exercise
of the rights of challenge, peremptory and for cause. FMC Corp. v.
Brown, 551 N.E.2d 444, 447 (Ind. 1990). The motion in limine filed
by Stone in this case with respect to insurance was granted with the
specific exception of voir dire.
Stone does not contend that there is any error in allowing Stakes counsel
to question the prospective jurors about any interest they might have in Warrior
Insurance Group or Gallant Insurance Company. Stones allegation of error rests solely
on Stakes identification of Stones attorneys as members of the Conover and Foos
Litigation Section of the Warrior Insurance Group during voir dire. He alleges
that the identification immediately implies to the jury that the Defendant was covered
by liability insurance, which is not relevant to the issues in this case
and is prejudicial to Stone. Brief of the Appellant at 11.
He argues that Stone was prejudiced by the reference to insurance, such prejudice
being shown by the verdict rendered by the jury. At trial, Stakes
introduced evidence of $4,170.85 in medical expenses and $1, 289.00 in incidental expenses.
The jury verdict was in favor of Stakes in the amount of
$25,000. Stone contends that not only was this verdict excessive in light
of the evidence, but it is also the amount of the minimum liability
coverage in this state.See footnote
As stated above, it is generally true that allowing evidence of liability insurance
to be interjected into a personal injury action is error. Evidence Rule
411 states that [e]vidence that a person was or was not insured against
liability is not admissible upon the issue whether the person acted negligently or
otherwise wrongfully. However, this does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as . . .
ownership, or control, or bias or prejudice of a witness. Evid. R.
411. Although Rule 411 is an evidentiary rule not strictly applicable to
voir dire, it provides some guidance in this area regarding what categories of
inquiry are acceptable. Rule 411 does not limit the allowable evidence regarding
insurance only to financial interest, but also allows evidence going to bias or
prejudice. Thus, a question regarding a jurors relationship, financial or otherwise, with
a specific insurance company on voir dire examination is not error if the
question is asked in good faith. Rust, 215 N.E.2d at 52-53.
Stone, however, alleges that Stakes counsels reference to the full name of the
firm representing Stone was a deliberate attempt to interject the notion of insurance
into the jurors minds. Stone cites several examples of cases in which
a reference to insurance was held to be inadvertent, and argues that this
instance could not be called inadvertent. See Lamb v. York, 252 Ind.
252, 261-62, 247 N.E.2d 197, 203-04 (1969) (holding that when counsel asked a
witness his occupation, which revealed that he worked for an insurance company, it
was not a deliberate interjection of insurance because the witnesss occupation was apparently
unknown to counsel when he asked the question); Clouse, 431 N.E.2d at 153-54
(admonishment and not mistrial was appropriate remedy where plaintiff stated, in an answer
on direct examination, that the police officer at the scene of the accident
asked the defendant about her insurance because the reference was inadvertent and innocuous,
in that the answer did not disclose whether or not the defendant had
insurance); Herman v. Ferrell, 150 Ind. App. 384, 276 N.E.2d 858, 863 (1971)
(holding that witnesss mention that he had spoken to an insurance adjuster, elicited
in response to a question on re-direct examination, was not a deliberate attempt
to interject insurance). Cf. Gardner v. Lake Eliza Resort, 390 N.E.2d 666,
669 (Ind. Ct. App. 1979) (holding that even though defense counsel inadvertently obtained
information from a defense witness regarding the defendants lack of insurance, the fact
that counsel reiterated the lack of insurance with his next question constituted a
deliberate attempt to interject insurance and required a new trial).
That Stakes counsel referred to the attorney representing Stone as a member of
the Litigation Section of Warrior Insurance Group does not tie Stone any more
directly to insurance than the admittedly proper questioning of the jurors about a
financial interest in Warrior or Gallant. Any prejudice due to the reference
is entirely too speculative to require reversal in this case. There may
have been equally effective ways to find out if prospective jurors have had
any dealings with Stones attorney or attorneys in his office. However, we
do not believe that Stakes counsel, reading from an appearance form handed to
him that morning which, for the first time, identified Stones counsel as a
member of a captive law firm of Warrior Insurance, was deliberately attempting to
inform the jury that Stone was covered by liability insurance and prejudice the
venire in favor of a verdict for his client.
See footnote If this were
a case which involved two independent law firms, rather than an independent law
firm and a captive law firm, there is no question that it would
have been appropriate for Stakes counsel to have asked the venire if any
of them knew, had been represented by, or had dealings with not only
the attorney present in court, but any other member of his or her
firm, naming that firm. It is entirely conceivable, especially in this day
of increasingly common lateral moves from firm to firm, that a prospective juror
would not know any of the current attorneys in a firm, but would
have known attorneys previously associated with that firm. There could be prejudice
for or against not only individual members of a firm but also a
firm itself. In this particular instance, it just so happens that the
firm is actually an insurance company. Moreover, counsel for Stone acknowledged at
oral argument that if he were in-house counsel for an insurance company, rather
than a member of a captive law firm, it would have been appropriate
for Stakes counsel to identify him as in-house counsel for that insurance company.
We believe that the difference between in-house counsel and members of a
captive law firm is a difference without a distinction. In both situations,
counsel is employed by an insurance company and represents the interests of that
company. Thus, if it would be appropriate to identify in-house counsel by
his or her affiliation with a company, it is equally appropriate to identify
a member of a captive law firm in such a way.
Because this was a singular reference during voir dire to the fact that
the attorneys representing Stone were employed by an insurance company, and because any
prejudice from such a reference is speculative at best, we decline to hold
that Stakes counsel was deliberately attempting to interject the issue of insurance into
this trial. The trial court did not err in denying Stones motion
The trial court did not err in denying Stones motion for mistrial inasmuch
as Stone has failed to show a deliberate attempt to prejudice the jury
against him. Accordingly, the judgment is affirmed.
BROOK, J., and RILEY, J., concur.
Footnote: We heard oral argument on this case on May 18, 2001,
at Attica Junior/Senior High School in Attica, Indiana. We wish to express
our appreciation to the Warren and Fountain County Bar Associations for the invitation,
to the administration, faculty, and staff of Attica Schools for their hospitality, and
to the students for their attention and their challenging and insightful questions.
Footnote: The driver of the car in which Stakes was a passenger
also asserted a claim against Stone. That claim, however, was settled and
is not a part of this litigation.
Footnote: The jury pool was informed prior to the beginning of voir
dire that Stone had passed away from causes that were totally unrelated to
the issues involved in this lawsuit. R. 141.
Footnote: The sidebar conference was not recorded. This recitation of events
during the sidebar comes from the trial courts trial order reflecting the events
which occurred the first day of trial.
Footnote: We note that Stones brief contains the following assertion: there
is a presumed prejudice that probably will be created in the minds of
the jurors if they realize that the defendant is insured, citing
N.E.2d at 53. What Rust actually says, however, is that [t]he continued
recognition of such presumed prejudice can be seriously questioned today. Id.
Stone does not, however, raise the allegedly excessive verdict as a
separate issue on appeal.
Footnote: We note that Stones counsel fails to include any firm name
on the briefs filed with this court, a practice which could be interpreted
as holding oneself out as a sole practitioner. The Supreme Court in
Cincinnati Ins. Co. v. Wills, 717 N.E. 2d 151, 165 (Ind. 1999) prohibited
the use of a name by a captive law-firm that implies an independence
from the insurance company and is therefore misleading. We believe this rationale
applies to failing to list any law firm name which could be equally