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Smith v. Crawford9/6/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED: 09/06/2005
BEFORE KING, C.J., IRVING AND BARNES, JJ.
. This appeal arises from a personal injury action by Dewey and Sylvia Smith against Hattie Crawford. At the trial below, Crawford's attorney suggested during his closing argument that Crawford did not have liability insurance in that she would be personably responsible for paying whatever amount the jury determined that she owed. The Smiths' attorney then told the jury during his closing argument that Crawford would not personally pay for any judgment against her. The trial judge instructed the jury to disregard this statement. Feeling aggrieved, the Smiths now appeal, asserting that the judge's instruction to the jury to disregard the statement constituted reversible error. We agree and reverse and remand for a new trial consistent with this opinion.
FACTS
. Dewey Smith and Hattie Crawford were involved in a motor vehicle accident. There is no issue as to responsibility for the accident because Crawford admits the accident was her fault. Therefore, the only issue below was as to damages. During closing argument, Crawford's attorney stated that "while Mrs. Crawford wanted the Smiths to be compensated for any damages that were caused by her admitted negligence, she did not want to pay for or be responsible for any damage which her negligence did not cause." The Smiths' counsel did not object to this statement when it was made, but chose instead to respond in kind during his own closing argument by saying: "I covenant with the jury that not a dime of any sum the jury might award the Smiths would come from the pocket of Mrs. Crawford." Crawford objected to this statement and asked for a mistrial. The trial court did not grant a mistrial, but did instruct the jury to disregard the statement. At the close of the trial, the jury awarded Smith $3,213 in damages. Smith's wife also alleged damages due to loss of consortium, but the jury awarded her nothing. The Smiths appeal, contending that the court's instruction to the jury to disregard the statement constitutes reversible error and that their motion for a new trial should have been granted.
STANDARD OF REVIEW
. Since the Smiths are appealing from an order denying their motion for a new trial, the standard of review is whether or not there was an abuse of discretion in failing to grant a new trial. Sports Page, Inc. v. Punzo, 900 So. 2d 1193 ( ) (MisS.Ct. App. 2004) (citing Redhead v. Entergy Miss., Inc., 828 So. 2d 801 ( ) (MisS.Ct. App. 2001)).
ANALYSIS AND DISCUSSION OF THE ISSUES
. Although there are numerous cases addressing the impermissibility of references to liability insurance in Mississippi, there is no case directly on point with the issue now before us. Under well-established Mississippi law, references to liability insurance are generally impermissible and constitute reversible error. See Jackson v. Daley, 739 So. 2d 1031 ( ) (Miss. 1999); Morris v. Huff, 238 Miss. 111, 117-20, 117 So. 2d 800, 802-03 (1960); Snowden v. Skipper, 230 Miss. 684, 697, 93 So. 2d 834, 840 (1957); Herrin v. Daly, 80 Miss. 340, 341-42, 31 So. 790, 791 (1902); Toche v. Killebrew, 734 So. 2d 276 ( ) (MisS.Ct. App. 1999). This prohibition includes not only references or intimations to the jury by a plaintiff that a defendant carries liability insurance (and thus the jury should feel free to return a large judgment for the plaintiff), but also references or intimations by a defendant that he lacks insurance (and thus will have to pay out of his own pocket any judgment returned by the jury). Avent v. Tucker, 188 Miss. 207, 225-26,
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