JAMES, J., for the Court:
¶ 1. Cheri Heflin appeals the decision of a jury in the Harrison County Circuit Court awarding her $32,500 in damages for injuries sustained in a vehicle accident. Arguing that she was entitled to $76,000, she appeals, raising four issues: (1) the circuit court erred in granting Nationwide Insurance Company's motion in limine and excluding from evidence Nationwide's name and the existence of Heflin's uninsured-motorist policy, but permitting counsel for Nationwide to participate in the trial; (2) the circuit court erred in excluding testimony regarding the speed at which Stephen Merrill was traveling at the time of the accident; (3) the circuit court erred in excluding statements made by Merrill to Heflin's husband, Mike Heflin, immediately following the accident; and (4) the circuit court erred in denying Heflin's motion for a new trial due to cumulative errors. Upon review, we find no error and affirm.
¶ 2. On January 21, 2005, Mike was driving his 2005 Ford F-150 truck with his wife, Heflin, in the passenger seat. While the Heflins were at a complete stop, Merrill hit the Heflins' truck from behind. Merrill was driving a 2004 Mercedes ML 350 SUV owned by Frank Ciuffetelli. Ciuffetelli's SUV was covered by an Allstate insurance policy. The Heflins' truck was covered by an uninsured/underinsured motorist (UM) policy with Nationwide.
¶ 3. On August 29, 2007, Heflin filed a complaint against Merrill and/or Merrill's estate,
¶ 4. According to Heflin, she suffered from temporomandibular joint disorder (TMJ) as a result of the accident. Heflin claims that she presented evidence that her out-of-pocket medical bills were $40,000, and that she anticipated $100,000 in future medical bills. On February 5, 2010, Nationwide filed its designation of an expert witness, which was subsequently joined by Merrill's estate and Ciuffetelli, designating Robert T. Watts, DMD., as an expert. On February 10, 2010, Heflin filed her designation of expert witnesses, designating the following experts: Dr. Elmer Gaudet Jr., Helfin's treating orthodontist; and Dr. Edward Boos, DDS, Heflin's treating dentist and oral surgeon.
¶ 5. On October 3, 2011, Nationwide filed a motion in limine, which stated:
On October 5, 2011, the circuit court granted Nationwide's motion in limine, preventing any mention to the jury of Nationwide's presence as a party to the lawsuit and any mention of the existence of the Heflins' UM policy with Nationwide. On October 6, 2011, the parties entered into a stipulation, which read:
This stipulation was signed by counsel for each party and the circuit court judge.
¶ 6. On October 6, 2011, a trial was held on damages only. Heflin sought $76,000 in damages. On October 7, 2011, the jury returned a $32,500 verdict for Heflin. On October 14, 2011, the circuit court entered a judgment on the jury's verdict, awarding Heflin $32,500, plus eight percent interest per year until paid.
¶ 7. On October 25, 2011, Heflin filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for an additur or a new trial. She argued that the jury's verdict of $32,500 did not fairly represent the evidence presented and evinced prejudice, passion, or bias. The motion was denied. Heflin now appeals.
¶ 8. This Court "will reverse [the circuit] court's denial or grant of a motion in limine only if the court abused its discretion in denying or granting the motion." Wright v. Royal Carpet Servs., 29 So.3d 109, 115 (¶ 13) (Miss.Ct.App.2010). When granting a motion in limine, the circuit court must first find the following two factors present: "(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury." Id. (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)).
¶ 9. Under Rule 401 of the Mississippi Rules of Evidence, "`[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Further, "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible." M.R.E. 402. However, "[a]lthough relevant, evidence may be excluded if its probative value is
¶ 10. In the case before us, the Mercedes driven by Merrill was insured by Allstate. Nationwide was named as a defendant in the suit because it provided UM coverage to the Heflins. Nationwide filed a motion in limine to exclude any mention of Nationwide's presence as a party to the lawsuit and to exclude the existence of the Heflins' UM policy with Nationwide. In support of its motion in limine, Nationwide noted the stipulation agreed to by the parties, which stated "that any final judgment for [Heflin], if any, in excess of the insurance carrier by [Merrill], if any, would be the responsibility of [Nationwide] up to the policy limits of $600,000.00."
¶ 11. After hearing arguments from both sides, the circuit court granted Nationwide's motion in limine, finding as follows:
(Emphasis added).
¶ 12. We find that the circuit court was within its discretion to exclude Nationwide's policy because the parties stipulated that Nationwide would be responsible for any amount not covered by Allstate up to Heflin's policy limits. Additionally, liability was not an issue in the case. Instead, the only issue litigated and presented to the jury was the amount of damages. Therefore, there was no reason for the jury to consider the Nationwide UM policy. Admitting such evidence could only serve to possibly inflate or deflate a verdict or confuse the jury. As such, we find that the Nationwide policy was properly excluded.
¶ 13. "A circuit court's admission or exclusion of evidence is reviewed
¶ 14. Heflin argues that the speed of Merrill's vehicle was relevant to her damages, and that the circuit court erred in excluding such evidence. At trial, the following exchange took place while Mike was on the witness stand:
At that point, counsel for Merill's estate objected, arguing the following:
The direct examination of Mike continued as follows:
¶ 15. After reviewing the transcript, it appears that no proffer was made regarding the speed of Merrill's vehicle. "When a trial court prevents the introduction of certain evidence, it is incumbent on the offering party to make a proffer of the potential testimony of the witness or the point is waived for appellate review." Redhead v. Entergy Miss., Inc., 828 So.2d 801, 808 (¶ 20) (Miss.Ct.App.2001); see also M.R.E. 103(a)(2) ("Error may not be predicated upon a ruling which ... excludes evidences unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."). "To preserve the excluded testimony for appeal, a proffer would have to [be] made so this Court would know what testimony was excluded." Redhead, 828 So.2d at 808 (¶ 20). We find that the speed issue is waived because it was not properly preserved for appeal. Accordingly, we affirm the circuit court's holding on this issue. In response to the dissenting opinion, the circuit court did not allow testimony concerning speed based on what Mike observed by "glanc[ing]" in his rearview mirror. However, the circuit court did allow Mike to testify about the objective evidence of speed that he observed, such as the tire marks shown in Plaintiff's Exhibit Number 20. The car was traveling behind Heflin, and Heflin only saw the car at a glance. There is nothing apparent in the record that shows that Mike had a chance to observe the speed of the car and that he was prevented from testifying about it. Also, there was no proffer on anything Mike objectively observed.
¶ 16. Heflin argues that the circuit court erred in excluding as hearsay statements made by Merrill to Mike right after the accident. Merrill's estate argues that the statements were properly excluded because Merrill was not available for cross-examination, and the statements were not relevant since liability was not an issue.
¶ 17. Under our rules of evidence, "`[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." M.R.E. 801(c). "Hearsay is not admissible except as provided by law." M.R.E. 802. Under Rule 801(d)(2)(A) of the Mississippi Rules of Evidence, a statement is "not hearsay" if it qualifies as an admission by
¶ 18. At trial, the following exchange took place while Mike was on the witness stand:
(Emphasis added). A proffer of Mike's testimony was made as follows:
¶ 19. In the case before us, the circuit court properly found that the statements made by Merrill to Mike were not hearsay because they qualified as admissions by a party-opponent under Rule 801(d)(2). However, the circuit court was within its discretion to exclude such statements under Rule 403 because Merrill was not available for cross-examination and because liability was not an issue. We cannot say that the circuit court abused its discretion in excluding such evidence. The dissenting opinion admits that the circuit court was within its discretion under Rule 403 to exclude the admission of a party-opponent since liability is not an issue. However, since liability is not an issue, further confusion would also exist if the evidence were not excluded because Merrill was unavailable for cross-examination. The circuit court, however, placed great weight on the fact that liability had been admitted. This issue is without merit.
¶ 20. Heflin argues that she should have been granted a new trial because of the cumulative effect of the errors cited above. Our standard of review for the grant or denial of a motion for a new trial is as follows:
White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (¶ 7) (Miss.2004) (internal citations omitted).
¶ 21. Heflin argues that she should have been granted a new trial based on cumulative errors. Under the cumulative error doctrine, multiple errors at trial, which individually are not reversible, may combine to make reversible error. Blake v. Clein, 903 So.2d 710, 718-19 (¶ 16) (Miss.2005). Because we find no error in the issues raised and addressed above, there can be no cumulative error. Therefore, this issue is without merit.
¶ 22.
CARLTON, J., CONCURS. IRVING, P.J., BARNES AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., MAXWELL AND FAIR, JJ. ISHEE, J., NOT PARTICIPATING.
GRIFFIS, P.J., dissenting:
¶ 23. I find reversible error. Therefore, I respectfully dissent.
¶ 24. Nationwide filed a motion in limine that stated:
¶ 25. At the hearing, Nationwide argued that the stipulation resolved any issue for the jury to decide about the Nationwide policy. Counsel argued that the mention of the policy would "inject a lot of emotion into this and make it a case against the big old bad Nationwide Insurance Company." Nationwide also argued that the policy be excluded because it:
Nationwide's counsel then acknowledged "there's no Mississippi law that we can ascertain, and it's kind of a flip of the coin which way the court wants to go, either the Virginia plan where there is no evidence as to the insurance policy or the Florida plan and everything is admissible...."
¶ 26. Heflin's counsel objected to the motion. Her counsel argued that had they not brought Nationwide in as a party, then Nationwide would have complained that it did not have the opportunity to participate and protect its rights. Now that it had participated and protected its rights, it wanted to "be hidden from the jury." She also argued that Nationwide was a proper defendant and the claim was a contractual claim, which the jury is entitled to know about. Thus, the exclusion of Nationwide would mislead the jury and would prejudice Heflin because the jury would think that her claim was only against a dead man's estate, when it is really a contractual claim against her own insurance company for benefits. Her counsel argued that it was critical to accurately portray the situation and the relationship of the parties to the jury.
¶ 27. Interestingly, the circuit court asked Nationwide's counsel, "How will we explain the style of the case to the jury if your motion is granted?" Counsel responded: Nationwide would simply come off the pleadings. It would not be there. Then it would be a suit reflecting the true dispute, that being the amount of damages that the plaintiff is entitled to. So Nationwide would not be — the jury would not need to know why Nationwide is here because
¶ 28. The circuit judge held:
¶ 29. The majority affirmed and held that "the circuit court was within its discretion to exclude Nationwide's policy because the parties stipulated that Nationwide would be responsible for any amount not covered by Allstate up to Heflin's policy limits." I respectfully disagree with and dissent from this conclusion.
¶ 30. The parties and the circuit court recognize that this is an issue of first impression in Mississippi. The majority cites no Mississippi case authority for this holding.
¶ 31. The circuit court and the majority have treated this issue as an evidentiary issue, governed by the Mississippi Rules of Evidence. I believe that the circuit court's decision involved a procedural issue, and there is no authority for the circuit court to exclude the mention of a properly named party from the venire or the jury. Heflin properly brought a claim against Nationwide, Nationwide was present at the trial, Nationwide participated in the trial, and as a result, Nationwide should be disclosed as a party in the litigation.
¶ 32. Considering this case from an evidentiary perspective, we must note that this case is not an issue about the admissibility of liability insurance. Mississippi Rule of Evidence 411 provides:
Rule 411 does not decide this issue. Similarly, this is not an issue about the admissibility of evidence to show possible bias of a witness. See Wells v. Tucker, 997 So.2d 908, 914-17 (¶¶ 22-30) (Miss.2008); M.R.E. 616.
¶ 33. Mississippi Rule of Evidence 402 provides that "[a]ll relevant evidence is admissible.... Evidence which is not relevant is not admissible." Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." The circuit court determined "that introducing that issue along with the existence of Nationwide Insurance Company to the jury would potentially prejudice [the] jury as to a determination of damages." Clearly, the circuit court used an incorrect standard. The question to decide is not whether the evidence would, as the circuit court held, "potentially prejudice" the jury; instead, Rule 403 allows the court to exclude evidence where "the probative value is substantially
¶ 34. We must recognize that Nationwide was a properly named defendant in the lawsuit. Nationwide was sued for payment under its insurance policy, to provide underinsured motorist coverage. Heflin had a viable direct action against Nationwide. I am aware of no case that has held that a court, under the Mississippi Rules of Evidence, may exclude the mention of a party's name because it may potentially prejudice the jury.
¶ 35. Heflin's complaint asserted two separate claims. She brought a negligence claim against Merrill, as the person who caused the accident. She also brought what is called a "direct action" against Nationwide, her insurance carrier. This was a contractual claim for uninsured or underinsured benefits.
¶ 36. The joinder of Merrill and Nationwide as defendants in the same action was proper under Mississippi Rule of Civil Procedure 20. Therefore, she was entitled to present both claims to the jury. Nationwide could have, but did not, filed a motion for a separate trial under Rule 20(b) or to sever the claims under Mississippi Rule of Civil Procedure 21. Nationwide did not.
¶ 37. The question here, which has not been addressed in any Mississippi decision, is whether an uninsured or underinsured motorist insurer should be identified to the jury at trial when it has been named a party to a lawsuit. The parties recognized that other states have considered this issue and reached different results.
¶ 38. Virginia does not allow an uninsured motorist insurer to be revealed to the jury in a lawsuit for personal injuries arising from an automobile accident where the tortfeasor is uninsured or underinsured. In Travelers Ins. Co. v. Lobello, 212 Va. 534, 186 S.E.2d 80 (1972), the plaintiff sued three defendants on the basis of negligence for personal injuries suffered from a four-car accident. One of the defendants, Alfred Shelton, was uninsured. As a result, the plaintiff served a copy of the complaint on his own uninsured motorist carrier, Travelers Insurance Company. Travelers then filed an answer and defenses and participated as a defendant in the case.
¶ 39. At trial, Travelers received permission from the trial court to inform the jury that it was the plaintiff's uninsured motorist carrier, that Shelton was an uninsured motorist, and that Travelers was assisting Shelton in his defense of the matter. Id. at 82. The jury was further informed that Travelers would be responsible for the payment of any verdict rendered against Shelton in favor of the plaintiff. Id. Following the trial, the jury awarded $15,000 against Shelton and a second defendant, jointly and severally.
¶ 40. The Virginia Supreme Court found that it was error "to permit the injection of insurance into the case," stating that "where two or more defendants may be jointly and severally liable, to say that one defendant has `insurance backing' is to create a situation permitting the return of a possibly inflated verdict binding upon all defendants so liable." Id. The court also held that Travelers' attorney should have only been permitted to tell the jury, without identifying himself as insurance counsel, that he was present to assist Shelton in his defense. The court found that this would have sufficiently explained his presence and would have not have prejudiced any of the litigants. Id.
¶ 41. Virginia does not allow a direct action by an insured against his or her uninsured motorist insurer for alleged personal injuries suffered as a result of an
Va.Code Ann. § 38.2-2206(A) & (F) (2012). The courts of Virginia have interpreted this section to mean that an injured party seeking to recover through uninsured motorist coverage must show that a judgment has been obtained against an uninsured motorist before there can be any recovery against an insurer. Macci v. Allstate Ins. Co., 917 A.2d 634, 636 (D.C.2007). "[S]ection 38.2-2206 effectively bars direct action solely against an insurance carrier for uninsured motorist coverage." Conteh v. Allstate Insurance Co., 782 A.2d 748, 751 (D.C.2001)
¶ 42. Unlike Mississippi, in Virginia, an insured has no right to bring a direct action against his or her uninsured motorist insurer until there has been a judgment against the uninsured tortfeasor. This leads to the conclusion that an uninsured motorist carrier should not be identified to the jury during a trial because the carrier is not a named party to the action and the insured only has an action against the carrier once a judgment has been rendered against the tortfeasor.
¶ 43. Under Florida law, the jury should always be made aware that the uninsured motorist carrier is a party to the lawsuit when the carrier is properly sued and/or joined in the action. Smith v. Baker, 704 So.2d 567, 568 (Fla.Dist.Ct.App. 1997). In fact, it is reversible error for a trial court to exclude from the jury the identity of the uninsured motorist carrier when that carrier has been made a party. Medina v. Peralta, 724 So.2d 1188, 1190 (Fla.1999). An uninsured motorist carrier that is lawfully sued by a plaintiff and properly joined as a party to the lawsuit must be disclosed to the jury as a party defendant (as opposed to being identified as a co-counsel for the tortfeasor). Id. at 1189.
¶ 44. The reasoning behind such a rule is:
¶ 45. Florida, like Mississippi, allows an insured to bring a direct action against his or her uninsured motorist carrier. See Fla. Stat. § 627.727(8) (2006) ("The provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident."); see also Krawzak, 660 So.2d at 309 ("By contract, as well as by statute, plaintiff has a direct action against GEICO as her underinsured motorist carrier.").
¶ 46. I am of the opinion that Mississippi should follow the reasoning followed by Florida. Mississippi allows an insured to bring a direct action against his or her own uninsured motorist carrier without first having to obtain a judgment against the uninsured tortfeasor. See, e.g., Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 226 (Miss.1984); Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456, 460 (Miss.1971); Farned v. Aetna Cas. & Sur. Co., 263 So.2d 790, 791 (Miss.1972); Hodges v. Canal Ins. Co., 223 So.2d 630, 634 (Miss.1969).
¶ 47. Heflin's complaint asserted a negligence claim against Merrill and a contractual claim against Nationwide. Nationwide has defended its interests and fully participated throughout the litigation. Nationwide, even after this ruling, participated at trial by cross-examining a witness and making objections. The interests of justice require that the identity and role of Nationwide be revealed to the jury.
¶ 48. Heflin was completely within her right, under Mississippi law, to name Nationwide as a party to the action and seek relief against Nationwide. Similarly, Nationwide was completely within its right to defend this action and attempt to limit its liability. To allow Nationwide to participate in the trial, yet not be disclosed to the jury, in my opinion was reversible error. It seems to me that Nationwide's motion in limine was not an evidentiary motion, but instead was an attempt to sever the claims under Rule 21. The circuit judge could have severed the claims, but I do not believe it was within the circuit judge's discretion to exclude all references to Nationwide from the jury.
¶ 49. As to this issue, I would reverse and remand for a new trial.
¶ 50. In this issue, Heflin argues that the circuit court was in error when it excluded Mike's testimony as to his opinion of the speed at which Merrill was traveling when he hit the vehicle from behind. The majority concluded that "the speed issue is waived because it was not properly preserved for appeal." I disagree with this conclusion.
¶ 51. To preserve an error involving the exclusion of evidence, the substance of the evidence must either be made known by an offer of proof (proffer) or must be apparent from the context of the record. Lacy v. State, 700 So.2d 602, 606 (Miss.1997) (citing M.R.E. 103(a)(2)). Here, there was no proffer of Mike's testimony. However,
¶ 52. At trial, the objection to this evidence was that it was improper opinion evidence and speculation. Mississippi law on this issue is well settled: "[A] layperson is competent to offer an opinion as to the rate of speed of a moving car. However, such testimony must pertain to the speed of the offending vehicle at the time, or just prior to the collision." Moore v. State, 816 So.2d 1022, 1028 (¶ 19) (Miss.Ct.App.2002) (internal citation omitted).
¶ 53. I am of the opinion it was error for the circuit court to exclude Mike's testimony as to the speed of Merrill's vehicle on the grounds that it was speculation or not proper opinion testimony. If this case were remanded for a new trial, I would instruct the trial judge to admit such evidence.
¶ 54. I am not of the opinion, however, that this error was sufficiently prejudicial to be reversible error. Recently, we considered the proper manner in which to review error in the admission of evidence.
James v. State, 124 So.3d 693, 699 (¶ 18) (Miss.Ct.App.2013) (internal citations omitted). Applying this standard, I could not say that a different result would have been reached if this error had not existed.
¶ 55. I concur with the majority's conclusion that the trial court correctly found that Merrill's statements to Mike after the accident were not hearsay because they qualified as admissions by a party-opponent under Mississippi Rule of Evidence 801(d)(2). The majority then holds "the circuit court was within its discretion to exclude such statements under Rule 403 because Merrill was not available for cross-examination and because liability was not an issue." I agree with the majority that the circuit court was within its discretion to exclude such statements, under Rule 403, because liability was not in issue. However, there was no legal or factual basis, under Rule 403 or any other authority, for the circuit court to exclude an admission of a party-opponent "because [he] was not available for cross-examination." This is an incorrect statement of and application of the law.
¶ 56. As stated above, if this case were remanded, I would instruct the circuit court to consider whether to allow such statements to be admitted, but on proper grounds. Without remand for other reasons, however, I do not find this error to be reversible.
LEE, C.J., MAXWELL and FAIR, JJ., JOIN THIS OPINION.
