Dias v. Healthy Mothers, Healthy Babies, Inc. ( 2002 )

No. 00-451
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 323MARCIA DIAS,
Plaintiff and Respondent,
v.
HEALTHY MOTHERS, HEALTHY BABIES, INC.,
a Montana Corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffery M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert R. Throssell, Keller, Reynolds, Drake, Johnson & Gillespie, P.C.,
Helena, Montana
For Respondent:
Joseph C. Engel, III, P.C., Attorney at Law, Great Falls, Montana
Submitted on Briefs: May 2, 2002
Decided: December 19, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Plaintiff, Marcia Dias, filed a complaint in the District
Court for the First Judicial District in Lewis and Clark County in
which she sought damages from the Defendant, Healthy Mothers,
Healthy Babies, Inc., for wrongful discharge from employment and
for unpaid wages, pursuant to §§ 39-3-201 through 217, MCA, wage
and hour claim. Following trial the jury found that Dias was
wrongfully discharged and awarded damages. HMHB filed a motion for
a new trial which was denied by the District Court. HMHB appeals
the District Court’s denial of its motion for a new trial. We
affirm the Order of the District Court.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court abuse its discretion when it denied
HMHB’s motion for a new trial?
¶4 2. Is Dias entitled to recover attorney fees pursuant to §
39-3-214, MCA?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On February 18, 1994, Marcia Dias was terminated from her
employment as a general project director for Healthy Mothers,
Healthy Babies, Inc. HMHB claimed it was having financial
difficulties and could no longer afford her position. On June 3,
1995, Dias and four co-workers, who were also fired, filed a pro se
complaint against HMHB, in which they alleged that they had been
wrongfully discharged, in retaliation and without cause, in
violation of HMHB’s personnel policy and Montana law. The
Plaintiffs requested compensatory damages for lost and unpaid wages
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and punitive damages for retaliatory discharge.
¶6 On February 14, 2000, a six day jury trial commenced in the
District Court regarding the claims of Dias and Amy Palmer. During
jury selection, in response to a question by Palmer’s attorney, a
prospective juror commented that she would have difficulty
returning a verdict for the Plaintiffs if it could limit HMHB’s
ability to continue its programs or expose HMHB’s volunteers to
personal liability. Palmer’s attorney explained that the “noble
volunteers” were protected from personal liability by the corporate
shield. The juror still expressed that she could be biased and
Palmer’s attorney moved to strike the juror for cause.
¶7 The District Court permitted Dias’ counsel to question the
juror before ruling. Dias’ counsel explained:
Q. (By Mr. Engel) Well, the question that occurs to me
in response to what you’ve stated, ma’am, is that when
you sit as a juror, you’re serving as a fact finder.
You’re supposed to base your opinion in the case upon
what comes from the witness stand and is introduced into
evidence. And when you would be considering whether or
not the defendant in any case has any wherewithal to
respond to a judgment by paying, you would be considering
something outside of that evidence. So the general
instruction - - the trials that I’ve participated in,
when jurors are concerned about whether or not there may
be insurance or some other - -
MR. THROSSELL: Objection, Your Honor.
THE COURT: Sustained.
MR. THROSSELL: And I would like the record to reflect
that counsel has tainted this matter and would like this
objection on the record.
THE COURT: That will be so noted.
Q. (By Mr. Engel) Well, you’re not supposed to concern
yourself with the source of the payment for any judgment.
So my question to you then, ma’am, would you be able to
set aside that stated concern that you’ve indicated and
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base your - - your service on the jury based upon the
evidence and what your required to do?
A. I’m not certain that I could if it became apparent
that the program would suffer. . . .
Following a short discussion among counsel and the court, the juror
was stricken.
¶8 At the first recess subsequent to the exchange the following
discussion took place outside the presence of the jury.
MR THROSSELL: . . . I wanted to make, for the record,
now the defendant’s objection that the availability of
insurance has been interjected into this matter. It has
tainted the entire jury pool. The defendants Healthy
Mothers Healthy Babies asks for a mistrial and also would
ask for the dismissal of the plaintiff’s [sic] case in
this matter, both the plaintiffs, Palmer and Dias.
. . . .
MR. ENGEL: Well, Your Honor, I was called out of order to
address an issue that a juror raised with respect to her
inability to be fair and impartial because she was
concerned about the wherewithal of the defendants to
respond. And in attempting to elicit from her that she
was not to be concerned about the source of the payment
for any prospective judgment, I mentioned the word
insurance. And I don’t think it prejudiced, I think, or
tainted the panel in any respect. It was not mentioned
in - - in any other context in that, Your Honor. And I
will not mention it again.
. . . .
THE COURT: The motion will be denied. . . . And I don’t
know about giving a cautionary instruction at this point.
It might bring more emphasis to it. So what I’ll do,
Mr. Throssell, if you still want a cautionary
instruction, we can issue one at the end with the rest of
the instructions. But I think you should think about
whether it will emphasize this thing. At this point it’s
probably a minor issue, and lets not let it happen again.
¶9 In his remarks, Dias’ counsel did not state that HMHB was
insured, nor did he misstate any fact or rule of law to the jury.
The word insurance was not uttered again. A curative instruction
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was neither requested, nor was one given at the end of the trial.
On February 22, 2000, the jury found that Dias had been wrongfully
discharged from her employment without good cause and in violation
of HMHB’s own written personnel policy. The jury found that Dias
was entitled to $91,595.84 for lost wages and benefits, and
$4,380.00 for her wage and hour claim. The jury found HMHB had not
acted in retaliation or engaged in actual fraud nor malice when it
discharged Dias and, therefore, punitive damages were not awarded.
The District Court subsequently awarded $6,658.77 for attorney
fees incurred to pursue the wage and hour claim.
¶10 A verdict was also returned in favor of Palmer. That case has
been settled and is not the subject of this appeal.
¶11 HMHB filed a motion for a new trial on April 5, 2000, and
alleged that there were four irregularities during trial that
prevented HMHB from having a fair trial. The first alleged
irregularity was counsel’s use of the word insurance in front of
the jury during voir dire examination. HMHB argued it had been
prejudiced by the remark.
¶12 On May 4, 2000, the District Court denied HMHB’s motion and
stated in part that: “The first stated reason for a new trial is
that insurance was mentioned during voir dire. While this is true,
the Court sees no evidence of any prejudice. The Court offered
defense counsel to present a curative instruction, but non was
requested.”
STANDARD OF REVIEW
¶13 The decision whether to grant a new trial is committed to the
sound discretion of the district court and will not be disturbed
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absent a showing of manifest abuse of discretion. Newbauer v.
Hinebauch, 1998 MT 115, ¶ 15, 288 Mont. 482, ¶ 15, 958 P.2d 705, ¶
15.
DISCUSSION
ISSUE 1
¶14 Did the District Court abuse its discretion when it denied
HMHB’s motion for a new trial?
¶15 HMHB contends that the District Court abused its discretion
when it refused to order a new trial because counsel’s reference to
insurance during trial is strictly forbidden by prior cases of this
Court and that the District Court abused its discretion when it
found there was no prejudice to HMHB from the reference. We are
not told whether HMHB had liability insurance which covers the
claims made by Dias and, if it did, why it would not be prejudicial
to Dias for the jury to mistakenly assume that the claim would
force this struggling non-profit organization out of business.
¶16 Rule 411, M.R.Evid., provides:
Liability Insurance.
Evidence that a person was or was not insured against
liability is not admissible upon the issue of whether the
person 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.
¶17 Whether or not a reference to insurance during voir dire
violates Rule 411 is a subjective determination which is left
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to the district court’s discretion. A district court is not
required to grant a new trial simply because the word
insurance is spoken during trial.
[T]he mere mention of insurance does not in every
instance constitute reversible error. The important and
controlling question is, How and under what circumstances
was it brought into the case? . . . Each case however,
must, generally speaking, stand on its own particular
facts and incidents and be determined by the manner and
circumstances in which the question of insurance was
brought into the case. Circumstances vary–likewise will
the general rule and it exceptions also vary.
Francis v. Heidel (1937), 104 Mont. 580, 587-88, 68 P.2d 583, 585.
The restriction imposed by Rule 411 is narrow. It prohibits
evidence of insurance to prove liability but specifically provides
that it may be admissible for other purposes and then offers a non-
exclusive list of examples. The notion that the mere mention of
insurance can move a jury to ignore the law and award a windfall to
the plaintiff is an ancient myth unsupported by any empirical data
which has been brought to this Court’s attention. Common sense
dictates that the opposite is true. Jurors concerned that an
individual might not have insurance are more likely to protect that
individual and his or her assets from damages which, unless
personal to the individual, often seem abstract and theoretical.
For example, in Million v. Rahhal (Okl. 1966), 417 P.2d 298, 300,
cited in Sioux v. Powell (1982), 199 Mont. 148, 153, 647 P.2d 861,
864, the Oklahoma court stated:
The prejudice created by a showing of the absence of
insurance is likely to be greater than when the existence
of insurance coverage is shown. Sympathy is one of the
most controlling human emotions. In City of New Cordell
v. Lowe [Okl., 389 P.2d 103], this court said:
‘Such information encourages sympathy for a party who
presumably has no way of being reimbursed for his loss
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than by a favorable verdict.’
¶18 During voir dire examination, a prospective juror spoke at
length about her difficulty returning a verdict in favor of the
plaintiffs because she did not want to hamper the defendant’s
ability to continue its good work. Fearful that she may have
evoked the sympathies of the entire jury, Dias’ counsel attempted
to explain that a jury is only permitted to base its factual
findings on the witnesses and evidence presented at trial. He
explained that a non-profit organization’s ability to pay will not
be in evidence, and should not be considered. He did not state
that the defendant was insured. The defendant objected, but there
was no lengthy discussion of the issue in front of the jury.
¶19 In those cases relied on by the defendant, (for example Avery
v. City of Anaconda (1967), 149 Mont. 495, 428 P.2d 465, and
D’Hoodge v. McCann (1968), 151 Mont 353, 443 P.2d 747) insurance
was repeatedly referred to in an obvious effort to influence the
jury’s decision. In the present case, there was one reference to
“insurance” in an effort to avoid prejudice to the plaintiff. We
conclude that it did not occur in a manner that is prohibited by
Rule 411.
¶20 The District Court is responsible for determining whether the
reference to insurance is sufficiently prejudicial to warrant a new
trial based on the circumstances and manner in which insurance is
mentioned. The District Court concluded that the use of the word
insurance during voir dire examination was a minor issue and
concluded that there was no evidence of prejudice when it denied
HMHB’s motion for a new trial.
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¶21 Based on the facts of this case, we conclude that the District
Court did not abuse its discretion when it denied HMHB’s motion for
a new trial.
ISSUE 2
¶22 Is Dias entitled to attorney fees pursuant to § 39-3-214, MCA?
¶23 In her respondent’s brief, Dias contends that she is entitled
to attorney fees incurred to respond to HMHB’s appeal from the wage
and hour claim. HMHB asserts that Dias was required to file a
cross-appeal to recover additional attorney fees incurred on appeal
and that she did not do so.
¶24 Section 39-3-214, MCA, provides that a judgement in favor of
the plaintiff in an action for unpaid wages must include all costs
that were reasonably necessary to enter or maintain the wage claim,
including attorney fees. We cited the legislature’s intent to
make the employee whole when we concluded that an employee was
entitled to recover attorney fees for an action to pierce the
corporate veil because the action was necessary to pursue the
underlying wage claim. Glaspey v. Workman (1987), 230 Mont 307,
309, 749 P.2d 1083, 1084-85. In Glaspey II v. Workman (1988), 234
Mont. 374, 377, 763 P.2d 666, 668, we held that the mandatory
language of § 39-3-214, MCA, required that reasonable attorney fees
be awarded to an employee who successfully appealed a wage claim
action. Once again, the legislature’s intent to make the employee
whole was cited in our holding. Glaspey II, 234 Mont. at 379, 763
P.2d at 672. Dias was awarded attorney fees for successful
prosecution of her wage claim in the District Court. There was
nothing for her to appeal. Her entitlement to attorney fees on
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appeal is a separate issue for consideration by this Court.
¶25 We conclude that the mandatory language in § 39-3-214, MCA,
and the legislature’s intent to make an employee who prevails in a
wage claim whole, requires that Dias recover attorney fees incurred
to defend her judgment for wages on appeal.
¶26 We affirm the Order of the District Court and remand this
case to the District Court for further proceedings to determine the
amount Dias is entitled to for attorney fees incurred on appeal.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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