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Posts tagged "jury selection"

Personal Injury Trial: Evidence of Automobile Insurance

One of the most difficult things to explain to a client is that at a personal injury trial in North Carolina you cannot mention the defendant's automobile insurance.   The jury is only told the dispute between the injured party and the actual defendant who created the situation.   The actual rules of evidence only prohibit the mention of automobile insurance for issues involving ability to pay; however, practically if insurance is mentioned judges are very reluctant to allow any testimony on those issues. Evidence that a person was or was not insured against liability is not admissible upon the issue whether he 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.  N.C. R. Evid. § 8C-1,8C-1411N.C. Gen. Stat. Ann. § 8C-1,§ 8C-1,8C-1 Rule 411 The above is the actual rule of evidence used by the courts in determining what witness are allowed to discuss. In Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965) the court discussed the general reason why the rule was promulgated and what the court looked at in deciding that you cannot mention automobile insurance in North Carolina. 'Ordinarily, in the absence of some special circumstance, it is not permissible under our decisions to introduce evidence of the existence of liability insurance or to make any reference thereto in the presence of the jury in the trial of * * * cases' where the relief sought is damages for injuries caused by negligence. Taylor v. Green, 242 N.C. 156, 87 S.E.2d 11; Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26; Duke v. Crippled Children's Comm., 214 N.C. 570, 199 S.E. 918; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726; Stanley v. Whiteville Lumber Co., 184 N.C. 302, 114 S.E. 385; Lytton v. Marion Manufacturing Co., 157 N.C. 331, 72 S.E. 1055. This rule is almost universal. 21 Appleman: Insurance Law and Practice, s. 12832; Anno.-Informing Jury of Liability Insurance,  **31956 A.L.R. 1418; Anno.-Showing as to Liability Insurance, 4 A.L.R.2d 761. Since the enactment of compulsory insurance statutes, it has been held in a few jurisdictions, including California, Georgia and South Carolina, that reference to liability insurance is not error. A.L.R.2d Supplement Service (1960) p. 297. However, our decisions, since the enactment of the Vehicle Financial Responsibility Act of 1957 (G.S. §§ 20-309 to 20-319), have adhered to the general rule above stated. Whitman v. Whitman, 258 N.C. 201, 128 S.E.2d 249 (1962); Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961); Hoover v. Gregory, 253 N.C. 452, 117 S.E.2d 395, 100 A.L.R.2d 341 (1960). From the opinion in Hoover, Stansbury finds 'indications that a departure from the rule will not always be censured as severely in the future as it has in the past.' Stansbury: North Carolina Evidence, 2d Ed. s. 88. The existence of insurance covering defendant's liability in a negligence case is irrelevant to the issues involved. It has no tendency to prove negligence or the quantum of damages. It suggests to the jury that the outcome of the case is immaterial to defendant and the insurer is the real defendant and will have to pay the judgment. It withdraws the real defendant from the case and leads the jury 'to regard carelessly the legal rights' of the real defendant.  *69 'No circumstance, a court has said, is more surely calculated to cause a jury to render a verdict against a defendant, without regard to the sufficiency (weight) of the evidence, than proof that the person against whom such verdict is sought is amply protected by indemnity insurance.' 56 A.L.R. 1422. These reasons for exclusion are as valid under compulsory coverage as under voluntary insurance. But it is argued that it is unrealistic to attempt to conceal from juries a fact of common knowledge-the compulsory requirement that all vehicles be insured. Liability insurance coverage is required by law in this State, and such requirement is, of course, a matter of common knowledge, but there are many valid reasons for excluding evidence of, or reference to, such coverage in addition to those mentioned above. There are instances in which insurance exists but under the particular circumstances there is no coverage. The limits of coverage vary-the law requires $5000 coverage for injury to one person; all coverage in excess of this amount is voluntary. The jury might infer from the mention of insurance that there is coverage to the extent of the damages prayed for, or they might guess from some reference made that the coverage is only $5000 and be thereby influenced to award inadequate damages. Furthermore, the Vehicle Financial Responsibility Act of 1957 permits the possibility of time gaps in insurance coverage, that is, short periods in which vehicles are uninsured. Faizan v. Grain Dealers Mutual Insurance Co., 254 N.C. 47, 55, 118 S.E.2d 303. If it is realistic to allow testimony and references to liability insurance, it would be more realistic to permit the introduction of the terms of the policy and all questions of coverage in the particular case. Such injection of irrelevant issues would be insupportable. The courts cannot, of course, control the deliberations of the jury when they have retired to make up their verdicts, and cannot 'black out' segments of their thinking related to matters of common knowledge. But the courts can now, just as effectively as before the enactment of compulsory liability insurance laws, control the trial and exclude irrelevant facts and confine the evidence and the matters arising during the course of the trial to the issues involved. Where testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor aptly made, withdraw a juror and order a mistrial. Luttrell v. Hardin, supra; Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66; Stanley v. Whiteville Lumber Co., supra; Lytton v. Marion Manufacturing Co., supra. But there are circumstances in which it is  **320 sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it.  *70 Keller v. Caldwell Furniture Co., 199 N.C. 413, 154 S.E. 674; Lane v. Paschall, 199 N.C. 364, 154 S.E. 626; Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9; Gilland v. Carolina Crushed Stone Co., 189 N.C. 783, 128 S.E. 158; Bryant v. Welch Furniture Co., 186 N.C. 441, 119 S.E. 823; Norris v. Holt-Morgan Mills, 154 N.C. 474, 70 S.E. 912. Fincher v. Rhyne, 266 N.C. 64, 68-70, 145 S.E.2d 316, 318-20 (1965). In 2004 the court still considered the Fincher case as controlling as to automobile insurance.Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004) Generally, "[w]here testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor *557  aptly made, withdraw a juror and order a mistrial." Fincher v. Rhyne, 266 N.C. 64, 69, 145 S.E.2d 316, 319 (1965). However, " there are circumstances in which it is sufficient for the court, in its discretion, because of the incidental nature of the reference, to merely instruct the jury to disregard it." Id. at 69, 145 S.E.2d at 319-20. " The decision of whether a mistrial is required to prevent undue prejudice to a party or to further the ends of justice is a decision vested in the sound discretion of the trial judge." Medlin v. FYCO, Inc., 139 N.C.App. 534, 540, 534 S.E.2d 622, 626 (2000), disc. rev. denied, 353 N.C. 377, 547 S.E.2d 12 (2001) (holding that the trial court did not abuse its discretion in denying defendant's motion for a mistrial based on a witness' mention at trial of defendant's relationship with defendant's insurer).  Campbell v. McIlwain, 163 N.C. App. 553, 556-57, 593 S.E.2d 799, 802 (2004)

Spoliation: when Defendants Destroy Relevant Evidence

A defendant or at fault party cannot destroy evidence.  It is the duty of a party not to take action that will cause the destruction or loss of relevant evidence that will hinder the other side from making its own examination and investigation of all potentially relevant evidence.  McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000). Spoliation of evidence is not a new concept and a party's duty to protect material evidence has been considered valid for 100 years in North Carolina jurisprudence.  See, Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). Spoliation of evidence is where a party is on notice of a claim or potential claim, destroys or negligently loses the evidence that is relevant to the non-spoliator's allegations.  McLain, 137 N.C. App at 186-187, 527 S.E.2d at 717-718. "Where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control . . . there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case."  Jones v. GMRI, Inc., 144 N.C. App. 558, 565 (2001) (cert. granted 354 N.C. 218, 554 S.E.2d 339 (2001); cert. improvidently allowed 355 N.C. 275, 559 S.E.2d 787 (2002)), citing Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). A jury instruction on spoliation of evidence is required and failure to so instruct is reversible error when a party demonstrates that: (1) the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed; and (2) the missing evidence was relevant to the non-spoliator's allegations.  McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. The law requires the trial court to instruct the jury on the law arising from the evidence presented.  N.C. Gen. Stat. § 1A-1, Rule 51; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715; Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989).  When a party requests a specific instruction, correct in itself and supported by evidence, the trial court must give that instruction.  Calhoun v. Highway Comm., 208 N.C. 424, 426, 181 S.E. 271, 272; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715.  Thus, if there is evidence that the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed, and the missing evidence was relevant to the non-spoliator's allegations, the failure to give the spoliation instruction is reversible error.  See, McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. In the unpublished case of Elliott v. Food Lion the North Carolina Court of Appeals held that the admission of certain depositions was relevant to the issue of spoliation where Food Lion had failed to follow their own policies and procedures to secure relevant videotape and pictures. UNPUBLISHED Elliott v. Food Lion, L.L.C., 605 S.E.2d 742 (N.C.App. Dec 21, 2004) (WESTLAW, NO. COA03-1705). Thus, a party that attempts to destroy or hide evidence in a case to protect itself merely creates a later problem.  The punishment for withholding or destroying evidence is a presumption that the withheld or destroyed evidence WOULD have helped the other party.

Car wreck while on the job: Do I have to repay workers' compensation?

If you were involved in an automobile wreck, not your fault, while  workering for your employer in North Carolina, you may not have to pay the workers' compensation back the full amount of their lien.  Often the question comes down to fairness and the amount of the recovery, the relative fairness of the recovery and the the future medical expenses are just some of what must be considered. If you are in such an accident, please see an attorney who handles both workers' compensation and personal injury law as per N.C.G.S. 97-10.2 often a hearing can be held with your local judge to determine what, if any, that judge would require you to repay workers' compensation. N.C.G.S. §97-10.2(j) gives the trial court discretion to determine how settlement proceeds are to be distributed.  The trial court may reduce or even completely eliminate a workers' compensation lien if the facts warrant, and appellate courts may not interfere with such an exercise of discretion -- except in extreme circumstances in which discretion has been abused.  Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990); Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). LEGGETT v. AAA COOPER TRANSPORTATION INC was one of the most recent cases on this issue and handled by O'Malley Tunstall, PLLC.  In this case the workers' compensation carreir had their lien reduced to zero and appealed.  The North Carolina Court of Appeals upheld the judges' ruling. In deciding whether to reduce or eliminate a workers' compensation lien, the trial court "is to make a reasoned choice, a judicial value judgment which is factually supported...[by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review."  Id. Our Supreme Court has often stated the test to be used when determining whether discretion has been abused: Generally, '[t]he test for abuse of discretion is whether a decision' is manifestly unsupported by reason.' White v. White, 312 N.C.770, 777, 324 S.E.2d 829, 833 (1985), or, 'so arbitrary that it could not have been the result of a reasoned decision[,] State v. Wilson, 313 N.C. 516, 538,330 S.E.2d 450, 465 (1985).'  Little v. Penn Ventilator Company, 317 N.C. 206,218,345 S.E.2d 204, 212 (1986). Most recently the Court found no abuse in discretion in Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004).  In Sherman, the lien was $168,000.00 and the plaintiff had expended $169,806.00 in recovering $1,300,000.00 - the trial court reduced the lien to $55,667 (a third) and required the workers' compensation carrier pay their fair share of the costs in the amount of $56,602.  Id. In Allen v. Rupard, 100 N.C. App 490, 397 S.E.2d 330 (1990), rev. allowed, 328 N.C. 270, 400 S.E.2nd 449 (1991), the lien amount was $40,000.00; and the settlement was $25,000.00.  The court divided the settlement in half, with $12,500.00 going to the workers' compensation carrier and $12,500.00 going to the employee.  The Allen court considered the nature and the circumstances of the incident in which Plaintiff was injured, the nature and extent of Plaintiff's injury (a crushed vertebra which necessitated three surgical procedures on his back), and other circumstances in rendering its decision.  The Supreme Court found no abuse of discretion. In Wiggins v. Busranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), Travis Wiggins was killed when a gate fell on him at the Raleigh-Durham International Airport.  It was anticipated that Mr. Wiggins' family would receive approximately $200,000.00 from his employer in workers' compensation benefits.  Mr. Wiggins' estate sued two fence companies claiming that their negligence proximately caused Mr. Wiggins' death.  The case settled for $900,000.00 prior to trial.  The trial court held that Mr. Wiggins' employer could not recover anything from the settlement and had no lien on the third party settlement funds.  The Court of Appeals found no abuse of discretion. In United States Fidelity and Guar. Co. v. Johnson, 128 N.C. App 520, 495 S.E.2d 388 (1998), Melvin Johnson, an employee of the Department of Transportation, died in an automobile accident during the course and scope of his employment.  The Department of Transportation provided workers' compensation benefits to Mr. Johnson's family totaling $148,955.00.  Mr. Johnson's estate filed suit against the third-party tort-feasor to recover damages for his wrongful death.  Mr. Johnson's estate received a total of $372,825.00 in settlement.  At the time of the settlement, the Department had paid $47,045.51 in workers' compensation benefits to Mr. Johnson's family.  The trial court completely extinguished the Department of Transportation's lien, finding that it would be inequitable under the facts and circumstances of the case to allow the Department of Transportation to recover the workers' compensation lien from the settlement proceeds.  The Court of Appeals found no abuse of discretion. In the case of In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), Kimberly Biddix was injured in an automobile collision caused by the negligence of a third party.  Ms. Biddix received workers' compensation benefits in the amount of $16,844.03 and temporary total disability benefits in the amount of $1,874.40.  Ms. Biddix subsequently entered into a settlement with the third party tort-feasor for $25,000.00, which were the limits of the tort-feasor's automobile liability insurance.  The trial court entered an order finding that the settlement did not adequately compensate Ms. Biddix for her injuries and eliminated her employer's lien.  On appeal, the Court of Appeals found no abuse of discretion.      

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Personal Injury Trial: Jury Selection in an Automobile Collision Case

As I picked a jury this afternoon in an automobile accident collision case, I thought of the basics.  What am I trying to tell this jury about my case?  What am I trying to explore in this jury panel? If you ask attorneys who actually try a lot of cases, they will explain that voire dire or jury selection is part science  but mostly an art, developed by actually picking juries.  Some people are born to talk to twelve people about their client's case and can do so in such a natural way that the jury is drawn to them like a moth to a flame... Others, and I fall into this category, must work on picking a jury and constantly feel awkward and unnatural.  Asking questions and keeping the jury discussing issues when they would like to be doing anything but sitting there answering your questions is difficult.  Jury selection so that the jury stays interested ramps up the difficulty. You pick a civil jury after lots of hours of case preparation, development, depositions of all the parties and a really informed idea as to what you want to do with your case... or at least that is the preferable idea.  In many cases, the issues present themselves over time or dissolve or fail to dissolve as the evidence is pulled out of the various witnesses. When I'm picking a jury I am constantly having to slow myself down as I want the best jurors possible, I also, due to all the preparation, want to get started with my trial.  That is a mistake and one I deal with in every trial.  You cannot move past jury selection or for that matter any other part of a trial.  Each part, opening, closing, jury selection or each witness interviewed must be given whatever amount of time it takes to finish. What questions are really relevant?  After over fifty automoible trials, I'm more interested in the people on the panel and how they are going to interact with each other and what those people are going to think about my client than specific questions.  Nice, hard working people with a good work history who do not have a history of causing automobile accidents are honestly who I want, I want people like my clients.  Many of my clients have great work histories, work hard and try to get better and back to their normal lives as quickly as possible - just looking for more people just like they are

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