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Hoff v. Faul11/3/2000
Kimberly and Larry Hoff (Hoff) appeal a mistrial order, contending the trial court erred in ruling that the 'inadvertent' mention of liability insurance during closing argument prejudiced Stephen Faul's right to a fair trial. Faul cross-appeals issues relating to the amount of the verdict. We affirm the trial court's order of mistrial and therefore do not reach Faul's cross-appeal.
Facts
Hoff sued Faul for injuries sustained in an automobile accident. Faul was represented by an attorney selected by his insurance carrier. This attorney hired a doctor to examine Kimberly Hoff. At trial, this doctor generally opined that Kimberly Hoff's lower back pain was not the result of the accident and that any injuries she actually sustained in the accident would not be permanent.
During closing argument, Hoff's counsel strenuously attacked the doctor's credibility, essentially arguing he was a 'hired gun' for defense counsel. In so doing, Hoff's counsel said the doctor's 'job is to work for all these insurance defense firms . . . .'
With the jury excused, Hoff's counsel stated: 'In my closing argument, I said, 'insurance defense firm.' . . . I had meant to say 'defense firm.'' Faul's counsel moved for mistrial; the court reserved ruling on the motion. The jury returned a substantial verdict in favor of Hoff.
Faul's counsel filed a written motion for mistrial. The court held that the reference to 'insurance defense firms' was inadvertent, but that its effect was 'devastating' and could not have been cured by a jury instruction. It granted mistrial. Hoff appeals.
Analysis
The trial court exercised its discretion in determining that the reference to insurance had a 'devastating' effect on the jury and unduly prejudiced Faul's rights to a fair trial. Hoff contends that the trial court had no discretion and should have decided as a matter of law that the inadvertent mention of liability insurance is not grounds for mistrial. He cites numerous cases to support this argument. See Church v. West, 75 Wn.2d 502, 452 P.2d 265 (1969); Lyster v. Metzger, 68 Wn.2d 216, 223-24, 412 P.2d 340 (1966); Miller v. Staton, 64 Wn.2d 837, 394 P.2d 799 (1964); Anderson v. Dobro, 63 Wn.2d 923, 389 P.2d 885 (1964); Williams v. Hofer, 30 Wn.2d 253, 191 P.2d 306 (1948).
The decision to grant or deny a mistrial is left to the trial court's sound discretion. See Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 136 n.9, 750 P.2d 1257, 756 P.2d 142 (1988) (citing Anderson, 63 Wn.2d at 928). An appellant must make a much stronger showing of abuse of discretion to set aside an order granting a new trial than to set aside an order denying a new trial because the denial of a new trial ''concludes {the parties'} rights.'' Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997) (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 437, 397 P.2d 857 (1964)).
The fact that a personal injury defendant carries liability insurance is entirely immaterial to the questions of negligence and damages. Todd v. Harr, Inc., 69 Wn.2d 166, 417 P.2d 945 (1966); see also ER 411. Thus, the willful, deliberate, or collusive interjection of such evidence at trial is grounds for a new trial. Church, 75 Wn.2d at 505-06; Todd, 69 Wn.2d at 168- 69; Staton, 64 Wn.2d at 840; King v. Starr, 43 Wn.2d 115, 118, 260 P.2d 351 (1953).
But when there is an inadvertent mention of liability insurance, the trial court may exercise its discretion in deciding whether to order mistrial. Rich v. Starczewski, 29 Wn. App. 244, 247, 628 P.2d 831 (1981) (citing Church, 75 Wn.2d 502 and Harr, 69 Wn.2d 166). T
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