Osborne v. Wenger

572 N.E.2d 1343, 1991 Ind. App. LEXIS 947, 1991 WL 101664

• Court: Indiana Court of Appeals
• Decided: June 13, 1991
• Docket: 50A03-9001-CV-19
• Status: Published

Opinions

GARRARD, Judge.

Roberta A. Osborne appeals a judgment for $147,000 compensatory and $1 punitive damages, presenting us with the following four issues for our review:

I. Whether the trial court erred in excluding from evidence a portion of a medical expert's opinion as to plaintiff's insurability and employa-bility where no objection was raised at that expert's deposition.

II. Whether the trial court erred in permitting the defendant to testify as to his minimal net worth without being required to disclose that the admitted compensatory damages in this case were covered by insurance.

III. Whether the trial court erred in not permitting plaintiff to impeach defendant with evidence that the reason he lied to the accident investigator is that he believed he had no insurance for the accident.

IV. Whether the trial court erred in ruling that treble damages under IC 34-4-80-1 did not apply to all of plaintiff's compensatory damages and in forcing plaintiff to elect in advance of trial whether she would proceed under punitive damages or under IC 380-4-8-L.

We affirm.

On January 27, 1987, Roberta Osborne was returning home from her job as an aide in a group home for retarded adults. It was late in the evening, and snow was blowing across the roadway. The defendant, Eric D. Wenger, was also returning home after work; however, he had visited two bars in the interim. At the intersection of County Roads 7 and 80 in Elkhart County, Wenger, who was later found to have blood alcohol content of .19%, ran a stop sign and struck Osborne's vehicle. She sustained numerous injuries, including a broken hand, broken foot, and shattered vertebrae.

Osborne brought suit against Wenger, which culminated in a four-day trial wherein Wenger admitted fault. The jury found compensatory damages in the amount of $150,000 and punitive damages in the amount of $1. It assigned 98% of the fault for the accident to Wenger and 2% of the fault to Osborne, resulting in a judgment for Osborne for $147,001. She appeals.

I.

Exclusion of Deposition Testimony

Pursuant to Indiana Rules of Procedure, Trial Rule 85, Wenger retained Dr. Roman Filipowicz to examine Osborne. Dr. Filipowicz's deposition was taken by Osborne and was, subsequently, offered in evidence at trial. One question and one answer were excluded, however, on the basis of a motion in limine filed by Wenger and granted by the court. The excluded portion read:

Q. I think that your report made mention of some conclusions about Mrs. Osborne's insurability and employability if I can find it. I think it's at the bottom of the first page:

'The main problem with this patient is that she is essentially uninsurable and therefore unemployable.

Would you explain that conclusion?

A. I've had many patients that have had injuries like this. They cannot get any insurance and in turn they will not get hired to a decent job. I've seen this many times. The insurance companies are seared that the patient is more prone to injury or damage and they don't want to take that patient as a risk. If they don't have insurance a lot of companies don't want to hire them. {emphasis added)

The ground for exclusion claimed in the motion in limine was that Dr. Filipowicz was not qualified to give an opinion on insurability and the testimony was prejudicial. No objection had been posed during the taking of the deposition when the question was asked. Osborne contends the court erred in excluding the above-quoted passage because any objection to its admissibility was waived for failure to assert it at the time the question was asked during the deposition.

We disagree. The excluded testimony consisted of the doctor's assertion that Osborne was essentially uninsurable and therefore unemployable. The objection was that no foundation had been laid during the deposition to qualify the doctor as an expert to give such an opinion. Thus, the objection addressed the competency of the evidence, 4.e., admissibility of the opinion. It was therefore governed by Trial Rule 82(D)(8)(a) which provides:

Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. (Emphasis added)

The general rule pertaining to objections covered by TR 38(D)(8)(a) is that they are not waived by the failure to raise them before or during the taking of the deposition. Then the rule permits an exception: if the ground of objection is one which might have been obviated or removed if presented at that time.

Where the deposition of an expert is taken expressly for use at trial, counsel is certainly charged with the knowledge that a proper foundation is necessary to render the opinion of the expert admissible. Counsel are no less aware where, as apparently occurred here, the deposition is taken essentially for discovery purposes. On such occasions counsel may wish to explore variety of the witness' opinions as a gauge on the worth of the witness. Sound policy considerations support permitting such depositions to be taken without the disruptive effect of numerous objections. - Those same considerations undergird the right of opposing counsel to make any appropriate objections to the substantive value of the testimony should it subsequently be offered as evidence at trial.

In view of the fact that errors concerning the form of questions are dealt with in a different subsection of the rule, the exception to subsection (a) must be narrowly taken. In the context of this appeal, in order to show that the ground of the objection might have been obviated if promptly presented, it was incumbent on Osborne to show to the court that the witness possessed the necessary credentials to render his opinion admissible. That is in keeping with the standard approach which requires that a party seeking to employ an exception carry the burden of establishing that he or she comes within the exception. See, e.g., Common Council v. Peru Daily Tribune, Inc. (1982), Ind.App., 440 N.E.2d 726. Yet Osborne's offer of proof consisted only of the omitted testimony, and her argument on appeal merely asserts that if an objection had been interposed during the deposition, counsel might have established a foundation.

In order to show that the ground of the objection might have been obviated if promptly presented (and thereby invoke the exception), it was incumbent on Osborne to show to the court that the witness possessed the necessary credentials to render his opinion admissible. She did not, and the court properly excluded the testimony.¹

IL.

Testimony Regarding Insurance

Osborne next contends that the trial court erred in allowing the defendant to testify regarding his minimal net worth, without allowing her to cross-examine him on the availability of insurance to cover any compensatory damage award.

The financial status of a defendant is admissible for the purpose of determining what amount of punitive damages would be appropriate to punish and deter him. Archem, Inc. v. Simo (1990), Ind.App., 549 N.E.2d 1054, 1058, transfer denied. Evidence of insurance coverage, on the other hand, is generally not admissible, although there are exceptions. Duke's GMC, Inc. v. Erskine (1988), Ind. App., 447 N.E.2d 1118, transfer denied.

In this case, we find no error in the exclusion of evidence relating to insurance coverage. Given that Wenger admitted liability, there was a strong possibility that the disclosure of the one million dollar coverage limits on Wenger's policy would influence the jury's finding as to compensatory damages.

In addition, a party must demonstrate that an error impinges upon and prejudices a substantial right such that a fair trial was not accorded before reversal is warranted. FMC Corp. v. Brown (1990), Ind., 551 N.E.2d 444, 447. Osborne has not made such a demonstration. The trial court correctly gave a limiting instruction indicating that evidence as to Wenger's net worth was to be considered only for purposes of determining the proper amount of punitive damages, if they applied. In closing argument, Osborne's counsel indicated to the jury that Osborne wished them to return a verdict for $1 in punitive damages "to send a message." The jury complied with that request.

III.

Impeachment

Osborne argues that the trial court erred in refusing to allow her to impeach Wenger's statement that he did not tell the truth to the accident investigator because he was ashamed of his actions. Wenger assertedly stated prior to trial that he lied because he was afraid he did not have insurance.

Our standard of review was set out in City of Indianapolis v. Swanson (1988), Ind., 448 N.E.2d 668, 671:

The trial court has the discretion to determine the scope of cross-examination, and only a clear abuse of that discretion warrants reversal. - [Citations omitted] Such determinations by the trial court necessarily entail making judgments on the admissibility of controversial evidence. The Court of Appeals properly stated that the trial judge's specific duty is to weigh the probative force of any evidence sought to be introduced against the danger of prejudice, in consideration of those trial conditions and circumstances which the trial judge can observe. [Citations omitted] We will reverse the trial court only when the trial court's judgment is clearly against the logic and effect of the facts and circumstances before the trial court.

We find no abuse of discretion. Wenger admitted several times that he lied to the investigator, so his credibility was already impeached. The introduction of insurance coverage has the potential for much misuse, and the court could properly determine that this outweighed its marginal value as an additional challenge to Wenger's already damaged credibility. Moreover, in light of the jury's finding that Wenger was 98% at fault for the accident, any error would appear to have been harmless.

IV.

Treble Damages

Osborne's final attack on the trial court's judgment is two-pronged-first, the trial court erred in ruling that treble damages under IC $4-4-30-1 apply only to property damage, and second, the trial court erred in requiring her to elect between treble damages under the statute and common law punitive damages.

Osborne concedes that we decided the issue making up the first prong of her attack adversely to her in our opinion in Seifert v. Bland (1989), Ind.App., 546 N.E.2d 1242, transfer pending, but contends our opinion was in error and invites us to reconsider the issue. We decline her invitation.

In support of the second prong of her attack, Osborne contends that she should have been permitted to submit the choice of remedy to the jury, rather than being forced to elect between punitive damages and statutory treble damages.

The doctrine of election of remedies has application only where remedies are inconsistent. - Loving v. Ponderosa Systems, Inc. (1985), Ind., 479 N.E.2d 531, 537. The legislature has unambiguously indicated that a litigant may not recover both treble damages and punitive damages. IC 34-4-30-2. Thus, an action for both treble damages and punitive damages is inconsistent as a matter of law. A litigant may be required to elect between inconsistent theories or remedies. Sickels v. Aetna Securities Co. (1942), 220 Ind. 347, 41 N.E.2d 947, 948; 11 LLB. Election of Remedies § 2. The trial court did not err in requiring Osborne to elect between punitive and treble damages.

Affirmed.

SULLIVAN, J., concurs. STATON, J., dissents and files separate opinion.

1 . Even if we determined the testimony was improperly excluded, the error would no doubt have been harmless because it is undisputed that Osborne, in fact, remained insured and employed.