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Aluminum Co. of America v. Aetna Casualty & Surety Co.5/4/2000
ution damage to be covered by the DIC policies in the first instance. Failing of this third prong of the test for misrepresentation, the insurers have not met their burden to sustain a motion for JNOV.
We hold, therefore, there was sufficient evidence before the jury to sustain its verdict, and conclude the trial court did not err in denying the insurers' motion for JNOV.
We next turn to the insurers' contention they are entitled to a new trial because of misconduct by Alcoa's counsel in closing statements to the jury. After the jury verdict, the insurers moved for a new trial, referencing four allegedly improper and prejudicial comments by Alcoa's counsel during closing argument. The trial court denied the motion for a new trial in a written order.
Abuse of discretion is the standard of review for an order denying a motion for a new trial: 'An order denying a new trial will not be reversed except for abuse of discretion. The criterion for testing abuse of discretion is: '{H}as such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a litigant from having a fair trial?' ' Moore v. Smith, 89 Wn.2d 932, 942, 578 P.2d 26 (1978) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932)). See also Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997) ('A much stronger showing of abuse of discretion will be required to set aside an order granting a new trial than an order denying one because the denial of a new trial 'concludes {the parties'} rights.' ' (alteration in original)) (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 437, 397 P.2d 857 (1964)); Seattle Operating Co. v. Cavanaugh, 14 Wash. 701, 701, 44 P. 266 (1896). This rule of abuse of discretion specific to motions for a new trial stands in juxtaposition to the general test for abuse of discretion set forth in State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971): 'that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'
The grounds for granting a new trial are set forth at CR 59(a). The insurers rely on only one of the nine listed grounds, CR 59(a)(2): 'Misconduct of prevailing party or jury.' Br. of Cross-Appellants as to Misrepresentation at 31. Such misconduct must 'materially affect{} the substantial rights' of the moving party. CR 59(a).
Washington law on the standard for counsel misconduct as grounds for a new trial in a civil case is scant. In Godley v. Gowen, 89 Wash. 124, 129- 30, 154 P. 141 (1916), a case predating adoption of our Civil Rules for Superior Court, we said:
It is finally claimed that, in the opening statement of counsel for the plaintiff, a statement was made to the effect that, shortly after the accident, the defendant discharged the plaintiff from his employ and refused to pay his doctor's bill, and that this was misconduct which would warrant the granting of a new trial. When counsel made this statement it was objected to, and the court told the jury, in substance, that they should not consider statements of counsel unless the same were supported by the evidence. We think this was not such misconduct of counsel as would warrant the granting of a new trial. See also Freeman v. Intalco Aluminum Corp., 15 Wn. App. 677, 552 P.2d 214 (1976) (curative instruction sufficient to address alleged misconduct of counsel).
We have spoken at some length, however, on the criteria for mistrials in criminal cases. In State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S. Ct. 2004, 131 L. Ed. 2d 1005 (1995), we stated:
Trial courts are accorded discretion in de
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