STUMPF EX REL. SELZER v. Nintendo

601 N.W.2d 735, 257 Neb. 920
CourtNebraska Supreme Court
DecidedOctober 22, 1999
DocketS-98-376
StatusPublished

This text of 601 N.W.2d 735 (STUMPF EX REL. SELZER v. Nintendo) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STUMPF EX REL. SELZER v. Nintendo, 601 N.W.2d 735, 257 Neb. 920 (Neb. 1999).

Opinion

601 N.W.2d 735 (1999)
257 Neb. 920

James J. STUMPF, Chapter 7 Trustee On Behalf Of the Chapter 7 Bankruptcy Estate of Dennis SELZER and Wanda Selzer, appellant,
v.
NINTENDO OF AMERICA, INC., and Nintendo Co., Ltd., appellees.

No. S-98-376.

Supreme Court of Nebraska.

October 22, 1999.

*737 Thomas A. Grennan, of Gross & Welch, P.C., Omaha, for appellant.

Brian D. Nolan and Amy Sherman LaFollette, of Nolan, Roach, Olson, Fieber & Lautenbaugh, Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

This is a products liability action in which the plaintiff, James J. Stumpf, a trustee on behalf of the chapter 7 bankruptcy estate of Dennis Selzer and Wanda Selzer, sued the defendants, Nintendo of America, Inc., and Nintendo Co., Ltd. (hereinafter jointly referred to as "Nintendo"), for damage from a house fire allegedly caused by a rechargeable battery pack manufactured by Nintendo. This case presents an evidentiary issue: Did the trial court abuse its discretion in overruling Stumpf's motion in limine to exclude all references to Farm Bureau Insurance Company (Farm Bureau) and specifically by permitting one of Nintendo's witnesses, Colin Moss, to disclose that he worked for Farm Bureau? We answer this question in the affirmative and, accordingly, reverse, and remand for a new trial.

BACKGROUND

In December 1991, the Selzers purchased a Nintendo "Game Boy" video game and a Nintendo rechargeable battery pack. A fire severely damaged the Selzer home on January 10, 1992. The Selzers had an insurance policy with Farm Bureau, and on January 11, a Farm Bureau adjuster, Moss, visited the scene of the fire. Later, Moss hired Kenneth Ward to investigate the cause of the fire, and Ward hired James Belina as a consultant. The Selzers filed a products liability action, and Moss, Ward, and Belina testified at trial.

At trial, the cause of the fire was disputed. Stumpf's expert witness, Ward, opined that the Nintendo rechargeable battery pack caused the fire. Belina, another expert for Stumpf, stated that the overheating of the battery pack could have caused a fire. Nintendo's witness, Ron Liem, did not attribute the cause of the fire to the Nintendo battery pack.

Stumpf filed a motion in limine and made several arguments outside the presence of the jury to exclude any mention of *738 the Selzers' insurance coverage through Farm Bureau. Specifically, Stumpf requested that if Nintendo called Moss as a witness, Moss should be identified only as a representative of the Selzers, not as an employee of Farm Bureau. Nintendo wanted to call Moss to expose Moss' involvement, which had allegedly hampered the investigation, and any possible bias by Ward and Belina because of previous relationships with Moss. Although the motion in limine was overruled, the trial court did restrict the examination of Moss, stating:

I've had a chance to review the deposition of Mr. Moss and I'm going to limit it this way, because I don't know how you can steer around that area of danger that will result in the jury getting information on payment by an insurance company, insurance coverage, so that they get that idea.
So this is the limitation for when you call Mr. Moss. He can be called to the stand. You can ask who he's employed by and how long. You can ask did he hire Mr. Kenneth Ward, ask him when he was hired or — when he was hired to do the investigation. You can ask did he hire Mr. Belina, and when that was. You can ask him when he first had notice of any loss by the Selzers for the fire. You can ask how many times he's hired Mr. Ward, and in the deposition it says one time. You can ask him, to his knowledge, how many times that he knows he's been hired by Farm Bureau at any other times, because he indicated that other persons have hired him.
... You can go into that, that's about the extent, so that you don't get in the area other than hiring the person, how many times he has, and why he waited. So if you keep those in line, well, then you'll steer clear of any error that will cause this to mistrial.

Under these restrictions, Moss testified, in relevant part, as follows:

Q. Would you state your name for the record, please?
A. Colin Moss.
Q. Mr. Moss, where are you employed?
A. I work for Farm Bureau Insurance Company of Nebraska.
Q. And how long have you been employed there?
A. Eighteen years.
Q. When was your first notice as to this occurrence?
A. The morning after the fire, that Saturday morning.
Q. And, subsequently, did you hire a Mr. Ken Ward?
A. Yes, I did.
Q. And did you hire Mr. Belina?
A. Not directly, but I approved Mr. Ward's hiring of him, yes.
Q. And had you hired either of these gentlemen in the past?
A. Mr. Ward had worked on one arson fire for me previously, yes.
Q. Okay. Now, when you said you were first aware of it, on what date?
A. It would be the Saturday morning after. The fire was on Friday evening, January whatever. January 11th.
Q. And you were on the site or on the premises at that time, weren't you?
A. Well, when — my first knowledge of it, no. I was the agent who came to it.

Pursuant to the jury verdict, a judgment was entered in favor of Nintendo and against Stumpf. It is from this judgment that Stumpf appeals.

STANDARD OF REVIEW

[1,2] The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999). An abuse of discretion occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. *739 State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998); Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).

ASSIGNMENT OF ERROR

Stumpf's sole assignment of error is that the trial court abused its discretion in denying his motions to exclude evidence that Moss was affiliated with Farm Bureau from which the jury could infer that the Selzers were compensated for their loss by insurance.

ANALYSIS

[3] As a general rule, we give wide latitude to the trial judge in determining the admissibility of evidence because he or she is in the best position to address the impact and effect of evidence based upon what the trial judge perceives from the live proceedings of a trial, while we can review only a cold record. See State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992).

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Related

Kresha v. Kresha
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573 N.W.2d 771 (Nebraska Supreme Court, 1998)
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673 P.2d 799 (Court of Appeals of Arizona, 1983)
Greenwalt v. Wal-Mart Stores, Inc.
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State v. Perrigo
510 N.W.2d 304 (Nebraska Supreme Court, 1994)
State v. Dixon
482 N.W.2d 573 (Nebraska Supreme Court, 1992)
Patterson v. Swarr, May, Smith & Anderson
473 N.W.2d 94 (Nebraska Supreme Court, 1991)
Deuth v. Ratigan
590 N.W.2d 366 (Nebraska Supreme Court, 1999)
Delicious Foods Co. v. Millard Warehouse, Inc.
507 N.W.2d 631 (Nebraska Supreme Court, 1993)
Stumpf ex rel. Selzer v. Nintendo of America, Inc.
601 N.W.2d 735 (Nebraska Supreme Court, 1999)

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Bluebook (online)
601 N.W.2d 735, 257 Neb. 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stumpf-ex-rel-selzer-v-nintendo-neb-1999.