Hansen v. State Farm Mutual Automobile Insurance Co. , 936 P.2d 584 ( 1997 )

Judge RULAND

dissenting.

I respectfully dissent from the majority’s holding that the trial court erred in failing to redraft State Farm’s instruction addressing the condition precedent to payment of benefits under the policy. I further disagree with the majority’s conclusion that the instruction on inducing a breach of contract constitutes error here. Accordingly, I would affirm the judgment.

I agree with the majority’s analysis of the deficiencies in the proposed instruction. However, I would characterize those deficiencies in stronger terms. Specifically, the policy terms granted State Farm the right to make the request for an independent medical examination, and there is no suggestion in this record that State Farm’s initial request was unreasonable. Further, it is undisputed that plaintiff “failed” to be examined. Thus, the jury could read the instruction as mandating a verdict for State Farm.

Plaintiff properly objected to the form of this instruction because it failed to address the issue of bad faith and, thus, made it appear as if the case involved only one claim. The court agreed and the following exchange occurred between the court and defense counsel:

THE COURT: This instruction submitted by the defendant is not a successful attempt to explain this area of the law yet, so—

[DEFENSE COUNSEL]: Well, I guess my problem is, I don’t know how to explain the concept of condition precedent without explaining what the effects of failure to satisfy are.

THE COURT: Well, if you just stated the terms of the contract and you just stated the terms of the case [Jensen ], that might be sufficient without drawing the conclusions. My suggestion—

[DEFENSE COUNSEL]: At this point in time, I really don’t have time to redraft this, so I guess this is the instruction that I’m submitting.

THE COURT: Okay. So, if this is what you want to stand on, the Court will reject this instruction for the reasons I indicated.

The court later confirmed its position on the tendered instruction by noting on the instruction form: “Court would have (1) accepted a statement of the contract term and (2) the holding in Jensen [Defendant chose not to submit such an instruction.”

I recognize that, under some circumstances, the trial court has a duty to instruct the jury properly on a defendant’s defenses in the case if such are supported by competent evidence. This is so even though counsel fails to submit an “entirely suitable instruction.” Davis v. Cline, 177 Colo. 204, 210, 493 P.2d 362, 365 (1972).

However, it is also well established that if counsel injects error into a case, then he or she must abide by the consequences of such act. People v. Zapata, 779 P.2d 1307 (Colo.1989). Further, this rule clearly extends to jury instructions. People v. Collins, 730 P.2d 293 (1986).

Here, defense counsel was provided the opportunity to redraft the instruction so as to address the court’s concerns. He chose not to do so. Counsel’s claim of time constraints rings hollow given the court’s suggestion as to the necessary revisions. Obviously, the court would have granted counsel sufficient time to make needed revisions. Under these circumstances, I view the invited error doctrine as fully applicable.

In addition, if we do not apply that doctrine under the circumstances here, then the burdens on trial courts in future cases will become onerous. Counsel will be able to tender an instruction or series of instructions that are totally deficient and then transfer to the court the obligation to redraft the documents in the proper form by simply announcing that he or she elects to “stand” on those instructions.

Further, I do not view the error in the form of the instruction discussed in part III of the majority opinion as warranting reversal of the judgment. This instruction in effect incorporated State Farm’s assertion that plaintiff was precluded from the receipt of benefits based upon her failure to be examined by the physicians in question. The instruction then confirms that her failure was excused if State Farm caused her to miss those examinations. Hence, in my view, the error was harmless.

Accordingly, for these reasons, I would affirm the judgment.