JAMES M. DOWD, Judge.
In this medical negligence-wrongful death case, Abraham J. Eoff and Crystal M. Eoff (Appellants), individually and as plaintiffs ad litem for Sophee R. Eoff (Decedent), appeal the trial court's judgment entered in favor of Jennifer K. McDonald, D.O., and Seasons Healthcare for Women, P.C. (Respondents) following a jury trial. Appellants claim that the court erred by denying them the right to ask the "insurance question." We agree and reverse and remand for a new trial.
Appellants brought claims for medical negligence against Respondents based on allegations that Respondent McDonald caused Decedent's death when she used a vacuum extractor improperly during Appellant Crystal Eoff's labor and delivery. Through pretrial discovery, Appellants learned that Respondents maintained a medical malpractice liability insurance policy with Missouri Doctors Mutual Insurance Company (MDMIC), which is located in St. Joseph, Missouri.
The case proceeded to trial on September 25, 2017. That morning, prior to voir dire, Appellants' counsel requested the trial court's permission to ask a question of the venire panel regarding Respondents' insurance carrier, a question colloquially known as the "insurance question." The proposed question was as follows: "Is anyone here employed by or have a financial interest in Missouri Doctors Mutual Insurance Company?" Respondents did not object to the question and the court ruled that Appellants would be permitted to ask it.
Also prior to voir dire, and several times throughout the day, the court advised counsel that it wanted to be ready to seat the jury the following morning, so the time for voir dire would be limited. Indeed, partway through voir dire the court told Appellants' counsel to "wrap it up" because Respondents needed time to ask questions that day if the court were to seat a jury the following morning. At that point Appellants' counsel stood down to allow Respondents' counsel to inquire of the panel, though Appellants' counsel did not state that he was finished with his voir dire questioning.
In fact, when Respondents finished their questioning, the court asked whether Appellants were finished as well. Appellants' counsel approached the bench, informed the court that he had additional questions and that since in his haste he had failed to ask the approved insurance question, he proposed to the court that he would ask the insurance question in between two other questions he still had for the panel.
The trial court acknowledged that it had rushed Appellants' counsel, stating, "I know I was hurrying you." Nevertheless, the court refused to allow Appellants' counsel to ask the insurance question. Respondents' counsel argued that no one on the venire panel had any relation to MDMIC, and he told the court that he had met all the employees of MDMIC and could assure the court that none of them was on the venire panel. Following Respondents' assertions in this regard, the court reasoned that greater prejudice was risked by allowing Appellants' counsel to ask the insurance question between two other questions, than by forbidding it to be asked at all. The court stated, "I don't think there's much of a risk, I think the risk is greater if I let you ask it in the middle of three questions, given what I know geographic[ally], logistically about this insurance company."
When Appellants' counsel raised the point that he needed to ask the question to ensure a fair and impartial jury, the court responded, "I am going to say no given that I don't perceive . . . how he could be prejudiced, there's only 20 employees, it's on the other side of the state, the answer [to the question is not likely to be yes]. . . . So really the prejudice is more to the other side by unduly highlighting it." No record was made whether any of the venirepersons might have a financial interest in the company.
The following morning, in accord with the trial court's intentions, a jury was impaneled. And after six days of trial and one day of deliberation, the jury returned a verdict in favor of Respondents. Appellants' motion for new trial, which asserted that the court committed reversible error by refusing to allow them to ask the insurance question, was denied.
This appeal follows.
We must first address in some detail the standard of review to be applied to this case. Generally, the nature and extent of voir dire examination is a matter of trial court discretion and will not be disturbed on appeal absent a manifest abuse of discretion. See, e.g., Robnett v. St. Louis Univ. Hosp., 777 S.W.2d 953, 956 (Mo.App.E.D. 1989). However, inquiry during voir dire regarding a defendant's insurance company is treated differently. The Missouri Supreme Court has held that because a party has the right to ask a proper insurance question, the denial of that right is an issue of law that we review de novo. Ivy v. Hawk, 878 S.W.2d 442, 445 (Mo.banc 1994) (citing Carothers v. Montgomery Ward and Co., 745 S.W.2d 170, 172 (Mo.App.W.D. 1987)).
Nevertheless, based on our review of the applicable case law, the trial court retains some limited discretion with regard to how the question is asked. Indeed, Ivy provides that "[t]he form of the question is at the trial court's discretion." Id. But this area of discretion has in large part been limited to the trial court's pre-voir dire determination whether the question is proper in form and foundation and therefore approved to be asked. Id.
Moreover, even beyond this pretrial procedure, we conclude that under Ivy the trial court necessarily retains some additional authority and discretion with regard to how the question is asked, specifically that the question not differ substantively from that which was approved and that the question not be asked in a manner that would unduly highlight it to the jury such as by asking it in an exaggerated way. See id. (holding that the accepted procedure for asking the insurance question is to propose and have approved a particular insurance question and to avoid "unnecessarily highlighting" the insurance issue). But again, this limited discretion must be viewed in the context that the plaintiff has the right to ask a proper and approved insurance question for which an adequate foundation has been laid, and the denial of that right is a matter we review de novo. Id. at 444, 445.
In their sole point on appeal, Appellants claim that the court committed reversible error by denying them the right to ask their approved insurance question. We agree.
The Missouri Supreme Court has held that the constitutional right to a trial by jury includes the right to a fair and impartial jury. Ivy, 878 S.W.2d 444 (citing Moore v. Middlewest Freightways, 266 S.W.2d 578, 586 (Mo.banc 1954)). Parties have the right to know if any of the panel members or their families has a potential interest in the outcome of the lawsuit. Id. (citing Bunch v. Crader, 369 S.W.2d 768, 770 (Mo.App. 1963)).
Consistent with these principles, it is settled in this state that a plaintiff is entitled to question potential jurors regarding their relations, if any, with insurance companies interested in the result of the trial. Id. (citing Smith v. Star Cab Co., 19 S.W.2d 467, 469 (1929)). Indeed, it has long been held that an employee or agent of the defendant's insurance company is, as a matter of law, incompetent to serve on the jury. Brines By and Through Harlan v. Cibis, 784 S.W.2d 201, 203-04 (Mo.App.W.D. 1989) (citing Murphy v. Cole, 88 S.W.2d 1023, 1024 (Mo.banc 1935)).
Thus, the employment of an insurance question has become a staple of civil jury trial selection. The question generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company. Ivy, 878 S.W.2d at 444, 445 (listing, as examples of possible interests in an insurance company, that a venireperson may be a stockholder, officer, director, or agent of the company). According to our Supreme Court, the accepted procedure in Missouri for asking the insurance question is as follows: (1) obtain the judge's approval of the proposed question out of the hearing of the jury panel, (2) ask only one insurance question, and (3) do not ask it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel. Id. at 445 (citing Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 871 (Mo.banc 1993)). Allowing plaintiffs to ask this question has been the accepted practice in Missouri for many years, and the procedures for asking it are simple, straightforward, and easy to apply. Id. Allowing one such question preserves the balance of permitting the plaintiffs to know if any members of the jury panel have an interest in the insurance company while avoiding the prejudice of emphasizing the issue of insurance. Id.
Because of the fundamental nature of the right to a fair and impartial jury, the trial court has no discretion to deny a party the right to ask the insurance question if the proper foundation is laid. Id. at 444 (citing Pollock v. Searcy, 816 S.W.2d 276, 278 (Mo.App.S.D. 1991); Carothers, 745 S.W.2d at 172). Where there is a dispute about the foundation laid for the proposed insurance question, Ivy provides — in line with the general principle that the nature and extent of voir dire questioning are discretionary matters for the trial court — that the form of the question is at the trial court's discretion, and notes that an insurance question is improper that refers to an entity as an "insurance company" whose name does not on its own reveal as much. 878 S.W.2d at 445, 445 n.1. Here, however, there is no dispute that Appellants properly laid a foundation for asking their proposed insurance question: "Is anyone here employed by or have a financial interest in Missouri Doctors Mutual Insurance Company?" And there is no dispute the court approved the form of the question.
In light of these facts and with the foregoing principles in mind, we find that the trial court erred as a matter of law by denying Appellants the right to ask the insurance question because the proper foundation had been laid, the question had been approved by the court, voir dire was still proceeding with the panel in the courtroom, the court solicited Appellants' counsel if he had any further inquiry, and counsel's intention to imbed the insurance question between other questions is the legally-sanctioned method to avoid unduly highlighting the question. Ivy explicitly directs that the way to avoid unduly highlighting the insurance question — and to thus adhere to "accepted procedure in Missouri" — is to "not [ask] it first or last in a series of questions." Id. Here, Appellants told the court that they would comply with this procedural dictate and would ask their insurance question between other questions. Based on long-standing Missouri precedent, Appellants' proposed course was proper.
And with regard to our standard of review, because Appellants were seeking to ask a proper insurance question in the way sanctioned by our Supreme Court in Ivy, we review the trial court's decision de novo. This was not one of those limited circumstances where the trial court retains discretion over the insurance question because a party seeks to ask an untimely or improper insurance question or seeks to ask it in a way that unduly highlights it. Rather, our review is de novo because counsel was denied the right to ask a proper and approved insurance question in the manner approved in Ivy.
We now turn to the court's reasoning. The court reasoned that greater prejudice was risked by allowing Appellants to ask the insurance question — even if placed between other questions according to the approved procedure laid out in Ivy — than by denying Appellants the opportunity to ask it, since based on the court's claimed knowledge of MDMIC, it believed none of the venirepersons had any relation to the company.
The trial court's prejudice analysis is misguided and represents a misapplication of the law because the Missouri Supreme Court held in Ivy that the trial court's denial of the right to ask a proper insurance question is prejudicial as a matter of law and therefore the trial court has no discretion to conduct such a prejudice-balancing analysis if the party seeks to ask a proper insurance question. Id. at 446 (citing Carothers, 745 S.W.2d at 172). Moreover, with respect to the oral representations made by Respondents' counsel that no one on the panel would answer the insurance question affirmatively, the Ivy Court specifically rejected such a process when it held that oral representations that no member of the venire panel has an interest in the insurance company involved in the case are simply insufficient to deny the right to ask the insurance question. Id. at 445 (holding that the plaintiffs had the right to ask the insurance question where defense counsel asserted prior to voir dire that defendants' insurance company was owned solely by physicians none of whom was on the venire panel, and where the company was located in Springfield, Missouri and had only one employee in St. Louis who likewise was not on the panel).
Thus, in cases like this one where a proper and approved insurance question was to be asked, the trial court has no discretion to deny the right to ask the insurance question based on a prejudice-weighing analysis such as occurred here in which the potential prejudice in asking the question is weighed against the relative likelihood of any affirmative answers to the question. The Missouri Supreme Court has been very clear on this point, holding that "the possibility of taint resulting from some connection between a juror and an interested insurer, even though the disclosure of the latter's interest is unlikely, outweighs the prejudice that might result from an inquiry naming the insurance company during voir dire." Callahan, 863 S.W.2d at 871.
Respondents cite Buckallew v. McGoldrick, 908 S.W.2d 704 (Mo.App.W.D. 1995) in support of their argument that Appellants waived their right to ask their proposed insurance question when they failed to ask it at the first opportunity and attempted to do so after Respondents had conducted their voir dire questioning. We find Buckallew inapposite here.
In Buckallew, the court held that since voir dire had ended and the venire panel had exited the courtroom without the party asking the insurance question, the question was no longer "proper" — as it was "untimely" — and therefore the trial court did not err in declining to "reopen voir dire" to allow the insurance question to be asked. 908 S.W.2d at 706-08. This case is different. Voir dire remained open. We know this because the court effectively invited Appellants' counsel to continue his questioning and the court did not deny Appellants' right to ask the question on the basis that voir dire was closed but rather as a result of its prejudice analysis discussed above.
Further, unlike counsel in Buckallew, 908 S.W.2d at 708 (noting that defendant's counsel did not inform the trial court that counsel could ask the insurance question between other unrelated questions), Appellants' counsel presented to the trial court a plan to ask the insurance question in a manner consistent with the accepted procedure from Ivy — amid other, non-insurance questions — in the form that the trial court had already approved.
On this record, then, we conclude that Appellants are entitled to a new trial. As noted above, the Missouri Supreme Court has held that the trial court's denial of the right to ask a proper and approved insurance question is prejudicial as a matter of law. Ivy, 878 S.W.2d at 446 (citing Carothers, 745 S.W.2d at 172). Plaintiffs have a constitutional right to a fair and impartial jury and should not be required after the trial to establish whether they were denied this right because the trial court failed to allow them to properly voir dire the panel. Id. We follow that ruling here and grant Appellants' sole point relied on.
For the reasons stated above, we reverse the judgment of the trial court and remand for a new trial.
Sherri B. Sullivan, P.J., and Lawrence E. Mooney, J., concur.
