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Harris v. Alessi5/20/2005
2005 Opinion No. 31
Judgment awarding damages, costs, and attorney fees in personal injury action, affirmed.
Faith A. Alessi appeals from a judgment awarding damages, costs, and attorney fees in a personal injury action. Specifically, Alessi challenges the district court's order denying her motions for a new trial, judgment notwithstanding the verdict (J.N.O.V.), a new trial conditioned upon remittitur, and the court's order awarding attorney fees to Long. We affirm.
I. FACTS
Abigail Harris, now known as Abigail Long, and Alessi were involved in an automobile accident that occurred on June 9, 2000. Long suffered injuries as a result of the accident and filed a lawsuit against Alessi. In a pre-trial conference, Alessi admitted liability leaving as the only issue for trial the amount of damages.
The case proceeded to trial before a jury. During voir dire, Long's attorney asked the jury panel, "Are any of you sitting here or members of your family employed by Allstate Insurance Company?" Alessi moved for a mistrial, arguing that the question was prejudicial because it implied that Allstate (Alessi's automobile liability insurer) was involved in the case. The district court took the motion under advisement. Alessi then made a motion in limine to prevent further references to insurance. The district court granted the motion and warned that a mistrial would be granted if there were any references to insurance. Upon the resumption of voir dire, a prospective juror asked Alessi's attorney, "Are you representing [Alessi] or are you representing the insurance company?" Before Alessi's attorney could respond, the district court struck the question. At the close of voir dire, the district court denied the motion for a mistrial.
On direct examination, Long was asked how she felt from the time of the accident until she sought medical attention. Long provided a lengthy explanation stating in part, "I was trying to find a doctor who would see me because . . . after, you know, nine or ten days I wasn't feeling better. So I called around and I didn't have health insurance at the time so I tried getting into several doctors." Later when asked why she sought medical attention at the emergency room over four months after the accident Long responded, "I went to the emergency room because up until that day I was having a lot of back pain that was coming up into my neck and I did not have health insurance. My Farm Bureau benefits were exhausted." Alessi again moved for a mistrial on the ground that insurance had been referenced in the presence of the jury and those references violated the district court's order in limine. The district court denied the motion, finding that the references to insurance were references to Long's insurance and not references to insurance Alessi may have had.
Long's chiropractor testified about his treatment of Long. Alessi objected to the chiropractor's testimony with respect to whether he could provide an opinion on the causation of Long's injuries. The district court ruled that the chiropractor could not express a medical opinion regarding whether Long's injuries arose from the June accident. The district court noted that, although the chiropractor could not testify as to causation, he could testify that Long's injuries were consistent with that type of accident. Three other witnesses testified as to Long's health and medical condition prior to the accident and after the accident.
At the close of Long's case, Alessi moved for a directed verdict on the ground that Long failed to prove all of the elements of her case, specifically that her alleged injuries were caused by the June accident. The district c
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