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Alfa Mutual Insurance Co. v. Cascio8/23/2005
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 08/23/2005
BEFORE KING, C.J., MYERS AND ISHEE, JJ.
. On February 6, 2002, Alfa Insurance, as subrogee of Belinda Patterson, ("Alfa") brought a subrogation suit against Glenda Cascio. On April 11, 2003, after Alfa's case-in-chief, the County Court of Forrest County granted Cascio's motion to dismiss and directed a verdict in favor of Cascio. Alfa appealed that judgment to the Circuit Court of Forrest County, which affirmed the judgment of the county court.
. Aggrieved by the judgment of the circuit and county courts, Alfa now appeals, raising the following issues:
I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT?
II. WHETHER THE PRESENCE OF THE DEFENDANT AT THE TRIAL ON THE MERITS WAS REQUIRED IN THE ABSENCE OF A SUBPOENA OR COURT ORDER?
III. WHETHER THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR DIRECTED VERDICT?
. Finding reversible error, we reverse and remand in part, and affirm in part the trial court's judgment.
FACTS
. On December 24, 2002, Patterson was involved in a rear-end collision. She suffered personal injuries and damage to her vehicle, for which her insurance company, Alfa, reimbursed her. Alfa, as subrogee of Patterson, sought to obtain a judgment against Glenda Cascio, the party alleged to be at fault in the accident. At the trial on the merits in the county court, an Alfa representative and Belinda Patterson were both present. When the proceedings commenced, the trial judge asked counsel for Cascio if he intended to call any witnesses. Counsel for Cascio responded that he might possibly call his client, Cascio, as a witness but that she was not present. Alfa objected to the absence of Cascio from the proceedings and moved for a default judgment or a judgment in the nature of a directed verdict for the plaintiff, since the defendant would not be present to put on any evidence. The court, not finding there to be any strict requirement of the defendant's presence in the absence of a subpoena, denied these motions and proceeded with the trial. Alfa renewed these motions periodically during the trial, but the court continued to deny them.
. This particular case was, basically, a run-of-the-mill subrogation case; thus, Alfa came prepared with certain standard documents, in addition to the testimony of its representative and its insured, Patterson. Among those documents were copies of checks demonstrating Alfa's payments to Patterson, an Agreement, Assignment and Release, a Mississippi Uninsured Motorist Release and Subrogation Agreement, and various bills detailing expenses incurred by Patterson as a result of the car accident. The trial court excluded all of this documentary evidence citing, most often, Rules 403 and 901 of the Mississippi Rules of Evidence. The trial court also excluded the medical bills, declaring that they had not been "authenticated" pursuant to Mississippi Code Annotated ยง 41-9-119 (Rev. 2001). The trial court also excluded any testimony regarding the amount of money Alfa paid to Patterson. The trial court did allow into evidence a photograph of Patterson's vehicle, showing the damage to the rear of her vehicle, and the trial court allowed Patterson to testify that her deductible was $200.
. The trial court also allowed Patterson to testify to the particulars of the accident and how it occurred. In this regard, Patterson testified that, as she was slowing to turn, with her turn signal on, she was rear-ended by the driver of the other vehicle and that th
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