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Hoff v. Faul11/3/2000
rial court discretion is appropriate in these circumstances because the 'trial judge's presence in the courtroom enables him to best determine the effect, if any, of such statements on the jury and if the statements were sufficient to deny the appellant a fair trial.' Rich, 29 Wn. App. at 247; see also Tincani v. Inland Empire Zoological Soc., 66 Wn. App. 852, 837 P.2d 640 (1992), aff'd in part, rev'd in part on other grounds, 124 Wn.2d 121 (1994).
Although on cursory review the cases cited by Hoff could be read to support his argument that the trial court lacked discretion in this instance, a closer examination reveals otherwise. The Church court, after noting that the deliberate injection of insurance as an issue was grounds for mistrial, stated 'the trial court is given the discretion to determine whether appellant has been deprived of a fair trial by reason of injection of an immaterial issue.' 75 Wn.2d at 506. In Lyster, the court held that the inadvertent mention of insurance was not prejudicial in that case as it was cumulative of other testimony properly presented. In Staton, the court reviewed the improper statement in the context of the entire case to determine whether it denied a litigant a fair trial. 64 Wn.2d at 840. In Anderson, the court found that the error was invited and that the trial court's corrective instruction cured any prejudice. 63 Wn.2d at 928. Finally, in Hofer, the court did not address the prejudicial effect on the jury of the injection of insurance into the case. 30 Wn.2d at 265-66.
Consequently, we conclude that the trial court had the discretion to determine whether a mistrial was warranted and was in the best position to determine prejudice. The trial court did not abuse that discretion in determining that the implicit reference to liability insurance denied Faul a fair trial and thus necessitated a new trial.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Seinfeld, J.
We concur:
Hunt, A.C.J.
Wang, J.
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