Reeves v. Gentile , 161 Utah Adv. Rep. 14 ( 1991 )

ZIMMERMAN, Justice

(concurring):

I concur in parts I, II, and III of the Chief Justice’s opinion. I also agree with the substance of part IV.

As for part IV, I agree that the trial court should not have permitted the mention of insurance, and I agree that the error was not harmful. I want only to make an observation about the harmless-error standard quoted by the Chief Justice.

The proper test for determining whether an improper admission of evidence was harmless is set forth in Utah Rule of Evidence 103(a). We have interpreted this standard as being congruent with those set elsewhere in the rules for determining the harmfulness of errors. State v. Verde, 770 P.2d 116, 121 (Utah 1989) (equating the standards for harmless error in Utah R.Crim.P. 30(a), Utah R.Civ.P. 61, and Utah R.Evid. 103(a)). Under that standard, “we label ‘harmless’ ... errors which ... are sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings.” Verde, 770 P.2d at 120 (citations omitted).

The standard set forth in Robinson v. Hreinson, 17 Utah 2d 261, 409 P.2d 121 (1965), quoted by the Chief Justice, predates the promulgation of Utah Rule of Evidence 103(a) and our recent attempts to bring some consistency to our phrasing of the harmless error tests. E.g., Verde, 770 P.2d at 120-21; State v. Knight, 734 P.2d 913, 919-20 (Utah 1987). I assume that the Chief Justice relies on Robinson only because it is a case involving evidence of insurance and because the standard quoted does not differ materially from our post-rule 103(a) articulations. There is certainly nothing in our cases or rules that would suggest that some unique standard applies in insurance policy situations.