State Farm Mutual Automobile Insurance Co. v. Shrader

MACY, Justice,

dissenting in part and concurring in part.

I disagree with part of the majority opinion and with the disposition of this ease. I would affirm the trial court’s judgment in all respects except that I would reverse the trial court’s judgment notwithstanding the punitive damages verdict.

Before trial, State Farm moved for separate trials because, in part, the evidence of its offers to settle was not admissible to prove the Shraders’ claim for damages under the uninsured motorist policy. W.R.C.P. 42(b); W.R.E. 408. The trial court denied the motion. Although State Farm filed a detailed motion in limine to exclude twelve other categories of evidence, it never moved to exclude the evidence of its settlement offers. Nor did State Farm request that instructions be given to the jury which would caution it that the evidence was inadmissible to prove one of the Shraders’ claims.

The majority holds that the trial court abused its discretion by denying the motion for separate trials because State Farm was thereby prejudiced by the introduction of the evidence of its settlement offers. I disagree for several reasons.

First, a district court has only limited discretion under W.R.C.P. 42(b) to allow separate trials of multiple claims. Carlson v. Carlson, 836 P.2d 297, 305 (Wyo.1992). We have held: “A trial may be bifurcated only when the issues are clearly distinct and the bifurcation will not work a hardship against either party.” Id. The issues are rarely, if ever, clearly distinct when, as here, a case combines a tort claim for breach of an implied contractual duty of good faith and fair dealing with a breach-of-contract claim, both of which arose from a breach of the same contract term. Cf. Ames v. Sundance State Bank, 850 P.2d 607 (Wyo.1993) (party asserting a tort claim of bad faith must prove that the contract was enforceable).

In this case, I would not second-guess the trial court’s sound decision. The issues at trial were unavoidably interwoven, and State Farm has demonstrated no hardship which was caused by the trial court’s ruling. I cannot reconcile the majority’s holding with our opinion in Carlson . Considering the rule in Carlson which favors consolidated trials, I cannot agree with the majority that the trial court abused its discretion. The majority’s holding leaves an aftermath of uncertainty for a judge who has been presented with a motion for separate trials.

Second, the trial court committed no cognizable error by admitting the evidence of State Farm’s settlement offers. “We adhere to the rule that a limiting instruction, if desired, must be clearly requested by counsel.” Carlson v. BMW Industrial Service, Inc., 744 P.2d 1383, 1389 (Wyo.1987). See W.R.E. 105. “As a matter of trial strategy, counsel may decide against a limiting instruction to avoid emphasizing unfavorable testimony. ... It is not the function of the trial judge to second-guess the strategy of counsel.” Sybert v. State, 724 P.2d 463, 467 (Wyo.1986).

At trial, State Farm never moved to exclude the evidence of its settlement offers, although it did file an extensive motion to exclude other evidence. Nor did State Farm request, either during trial or at the close of the case, that instructions be given to the jury which would inform the jury that the evidence of its settlement offers was not to be considered on the breach-of-contract claim. Instead, State Farm utilized an all- or-nothing strategy toward the evidence; If the trial court denied its motion for separate trials, State Farm would permit the introduction of the evidence without making an objection.

We should not expect a trial court, on its own motion, to caution the jury when the trial attorneys have failed to alert the trial court to the need for a cautionary or limiting instruction. I would hold that the trial court committed no error by admitting the evidence of State Farm’s settlement offers.

Third, excluding State Farm’s offers to settle, found by the jury to have been extended in bad faith, would in no way further the purpose of W.R.E. 408. Both W.R.E. 408 *839 and the tort of breach of duty of good faith and fair dealing were adopted, in part, to encourage dispute settlement. Hursh Agency, Inc. v. Wigwam Homes, Inc., 664 P.2d 27, 36 (Wyo.1983); McCullough v. Golden Rule Insurance Co., 789 P.2d 855, 859 (Wyo.1990).

I see no reason to encourage the making of settlement offers of the sort made by State Farm in this case. Yet, by remanding the case for a second trial, the majority rewards State Farm with a second chance to avoid liability for its actions.

I also disagree with the majority’s holding that the instructions which mentioned fiduciary duty constituted prejudicial error. An improper jury instruction is reversible error only when an appellant demonstrates that he has been prejudiced. Kemper Architects, P.C. v. McFall, Konkel & Kimball Consulting Engineers, Inc., 843 P.2d 1178, 1182 (Wyo.1992). The factors which are considered in determining the degree to which an appellant was prejudiced are:

‘“(1) the extent to which there is conflict in the evidence on critical issues; (2) whether or not the respondent’s argument to the jury may have contributed to the instruction’s misleading effect; (3) whether or not the jury requested a rereading of the erroneous instruction or of related evidence; (4) the closeness of the jury’s verdict; and (5) the effect of other instructions in curing the error.’ ”

Condict [v. Whitehead, Zunker, Gage, Davidson & Shotwell, P.C.], 743 P.2d [880,] 886 [ (Wyo.1987) ] (quoting 1 California Forms of Jury Instruction, Procedures and Instructions § 1.13[3] (1987) (footnotes omitted)).

843 P.2d at 1182 ..

State Farm has failed to meet its burden to show prejudice. Instruction No. 23, which mentioned fiduciary duties, when considered alone, is misleading. State Farm does not cite to anything in the record which indicates that it was prejudiced. State Farm does not even allege that it was prejudiced by the jury instructions. Apparently, and without any authority, State Farm asks us to conclude that the instructions which were given were per se reversible error. I cannot agree.

The jury did not ask any questions about the challenged instructions. No evidence indicates that the vote on the verdict was close. Instruction No. 24 clarifies Instruction No. 23 by indicating that an insurer is not a fiduciary. None of the other Kemper Architects, P.C. factors seems to favor State Farm’s contention in this case. I, therefore, must disagree with the majority’s conclusion that these instructions constituted prejudicial error.

Finally, I would affirm the trial court’s award of attorney’s fees as being a proper exercise of discretion under Wyo.Stat. § 26-15-124(c) (1991).

I concur in the remaining portions of the majority opinion. I would affirm the trial court’s judgment and reverse only the ruling on punitive damages, and I would allow the verdict, along with the punitive damages award, to stand.