JOANNA PORTER WHEELER,
Individually, and as Administratrix, D.B.N.
for the ESTATE OF PAUL DAVID PORTER,
B. Karleton Kesner, Esq.
Anita R. Casey, Esq.
Meyer, Darragh, Buckler, Bebenek & Eck
Charleston, West Virginia
Counsel for Appellant
Daniel R. Schuda, Esq.
Luci R. Wellborn, Esq.
Steptoe & Johnson
Charleston, West Virginia
Counsel for Appellee
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "`The true test to be applied with regard to
qualifications of a juror is whether a juror can, without bias or
prejudice, return a verdict based on the evidence and the court's
instructions and disregard any prior opinions he may have had.'
State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974)."
Syl. pt. 1, State v. Harshbarger, 170 W.Va. 401, 294 S.E.2d 254
2. Proof of insured status offered on rebuttal as a
financial asset that should be considered by the jury in awarding
punitive damages does not violate Rule 411, WVRE .
3. A plaintiff should be given the opportunity for pure
rebuttal as a matter of right when the rebuttal evidence consists
of non-collateral evidence that is made material and relevant only
because of the defense case.
4. If a defendant does not offer evidence of his
financial status or imply poverty, then neither may the plaintiff
offer evidence of the defendant's insurance coverage either in the
plaintiff's case in chief or on rebuttal. However, once the
defendant offers evidence of his financial status to influence the
jury on punitive damages, then the plaintiff may rebut such evidence by introducing proof of the defendant's liability
5. "'An erroneous instruction is presumed to be
prejudicial and warrants a new trial unless it appears that the
complaining party was not prejudiced by such instruction.'
[Citations omitted.]" Syllabus Point 6, Ratlief v. Yokum, 167
W.Va. 779, 280 S.E.2d 584 (1981).
Joanna Porter Wheeler, individually and as
Administratrix, D.B.N. for the Estate of Paul David Porter, appeals
from the 31 December 1992 Order by the Circuit Court of Kanawha
County enforcing the jury verdict returned in favor of the
Appellee, Joseph Murphy. The complaint asserts that on 13 April
1989, Mr. Murphy, while a passenger in a car driven by J. C.
Cottrill, substantially assisted or encouraged Mr. Cottrill's
intoxication, and that Mr. Cottrill's intoxication was the
proximate cause of the automobile accident killing himself, and Mr.
Porter, the driver of the other vehicle, and seriously injuring Ms.
Wheeler, a passenger and the owner of the vehicle driven by Mr.
Porter. Mr. Cottrill and Mr. Murphy were together on the day of
the accident from about 2:30 or 3:30 p.m. until the accident
occurred at 9:39 p.m. The evidence reflects that although Mr.
Murphy was passed out in the back seat of the vehicle at the time
the accident occurred, these two friends and co-workers had been
drinking together throughout the course of that afternoon and
The course of events on the day of the accident was as
follows: At approximately 9:39 p.m. on 13 April 1989, a 1986 Chevrolet "IROC" Camaro, driven by its owner, J. C. Cottrill,
crossed into the left lane of Pinch Road in Kanawha County, West
Virginia colliding with a 1980 Buick Rivera driven by Paul David
Porter. Both Mr. Porter and Mr. Cottrill were killed as a result
of the collision. Joanna Porter Wheeler, the owner of the vehicle
driven by Mr. Porter, was a passenger at the time of the accident
and suffered extensive injuries. An autopsy report revealed that
Mr. Cottrill's blood alcohol level was 0.28 at the time the
Joseph Murphy was a passenger in Mr. Cottrill's vehicle
when the accident occurred. Mr. Murphy and Mr. Cottrill had been
together from approximately 2:30 to 3:30 p.m. that day, until the
accident occurred at 9:39 p.m. Mr. Murphy and Mr. Cottrill worked
together that day at Krogers and got off of work within an hour of
each other. Mr. Cottrill picked Mr. Murphy up at work immediately
following the end of Mr. Murphy's shift. Mr. Murphy testified that
he did not see Mr. Cottrill consume any alcohol at work on the day
of the accident.
After leaving work, Mr. Cottrill and Mr. Murphy went by
the bank, and then drove to Coonskin Park in Kanawha County where
they were joined by Tracy Woods and Jennifer Summers. Ms. Woods
and Ms. Summers rode with both men to Mr. Murphy's trailer in the
vehicle driven by Mr. Cottrill. Both women testified that during the ride to Mr. Murphy's trailer, the men had a glass bottle
containing a dark liquor that Ms. Woods thought to be "Wild
Turkey." The women also testified that the bottle was passed from
Mr. Murphy to Mr. Cottrill upon demand.See footnote 1
Ms. Summers testified that Mr. Murphy served beer to
everyone at his trailer, other than herself and Ms. Woods,
including Mr. Cottrill. Ms. Woods and Ms. Summers recalled that
wine was also served to everyone at Mr. Murphy's residence. The
entire group spent approximately one hour at Mr. Murphy's trailer
before returning to Coonskin Park. The women observed that Mr.
Murphy and Mr. Cottrill continued to share alcohol during their
drive back to the park. Ms. Woods and Ms. Summers left Mr. Murphy
and Mr. Cottrill after spending some more time at Coonskin Park.
When the women left the park, both observed that Mr. Cottrill was
very drunk. In view of Mr. Cottrill's condition, Ms. Summers asked
a stranger in the park to drive her the short distance to Ms.
Woods' car, rather than risk riding with Mr. Cottrill.
After the women left, Mr. Cottrill drove Mr. Murphy to
Terry Miller's house located near Pinch, West Virginia. When they arrived at Mr. Miller's house, Mr. Murphy had passed out in the
back seat of the vehicle. Joseph Stowers and Carlotta Spangler
observed Mr. Cottrill at Mr. Miller's house and testified that
while Mr. Cottrill was at Mr. Miller's home he did not act
intoxicated. However, Ms. Spangler did say that it looked like
there was something wrong with Mr. Cottrill. Ms. Spangler further
observed that Mr. Cottrill entered the house carrying a bottle of
Jim Beam from which he took one drink. Mr. Cottrill did not take
the bottle with him when he left Mr. Miller's house.
Mr. Stowers left the Miller residence with Mr. Cottrill
and the unconscious Mr. Murphy, and was a passenger in the vehicle
at the time of the accident. Mr. Stowers testified that Mr.
Cottrill did not act visibly drunk, however he was driving in a
highly erratic manner. Mr. Stowers stated that when Mr. Cottrill
approached Route 114, he "shot out in the road" in front of a
truck, and "cut a donut around the telephone pole in the funeral
home parking lot and took off up the road." The accident occurred
Mr. Murphy's memory of the events leading up to the
accident were hazy. He recalled one cup of an unidentified
alcoholic substance being present in the vehicle. He did not
remember serving his guests alcohol. However, he did admit that he
became ill at Coonskin Park, and that he was drunk on the night of the accident. Although he could not say whether he passed alcohol
to Mr. Cottrill while they were in the car together on this
occasion, he did state that it was possible that he had done so.
Furthermore, he admitted that he and Mr. Cottrill had on previous
occasions, including the night before the accident, shared
alcoholic beverages while driving.
Mrs. Wheeler asserts that two errors occurred during jury selection. First, that the lower court erroneously excused juror Ronald Perry, upon the court's own motion, without inquiring whether he was unable to be an impartial juror. The circuit court excused Mr. Perry after he revealed that he had campaigned for one of the local magistrates.
As previously set forth by this Court, "`The true test to
be applied with regard to qualifications of a juror is whether a
juror can, without bias or prejudice, return a verdict based on the
evidence and the court's instructions and disregard any prior
opinions he may have had.' State v. Charlot, 157 W.Va. 994, 1000,
206 S.E.2d 908, 912 (1974)." Syl. pt. 1, State v. Harshbarger, 170
W.Va. 401, 294 S.E.2d 254 (1982). However, Mrs. Wheeler's counsel raised no objection to the court's decision to excuse Mr. Perry
until after the verdict was rendered.See footnote 2
Generally, a party seeking a new trial based on an
irregularity is estopped from raising the issue unless the record
reflects that the irregularity was called to the court's attention
"as soon as it was first discovered or as soon thereafter as the
cause of the proceeding would permit." McGlone v. Superior
Trucking Co., Inc., 178 W.Va. 659, 668, 363 S.E.2d 736, 745 (1987).
Furthermore, West Virginia Code 56-6-16  provides that:
No irregularity in any writ of the venire facias, or in the drawing, summoning, or impaneling of jurors, shall be sufficient to set aside a verdict, unless objection specifically pointing out such irregularity was made before the swearing of the jury, or unless the party making the objection was injured by the irregularity.
[Emphasis added.] See McGlone, supra (holding that a verdict will
not be set aside for any irregularity in impaneling a jury unless
there is a proper objection before the swearing of the jury or
unless it is shown that the party making the objection was
injured). Mrs. Wheeler failed to make a timely objection. Thus,
she is estopped from raising this issue as a ground for reversal.
Mrs. Wheeler also alleges that the lower court erred in
refusing to grant the her motion to strike juror Robert Rife for
cause. We disagree. Mr. Rife's son had been seriously injured in
an automobile accident while driving under the influence of
alcohol. There were no passengers involved. The appellant makes
no claim that Juror Rife's presence compromised the impartiality of
the jury. Instead, Mrs. Wheeler makes the unusual argument that
because the court dismissed another Juror, Mr. Strickland, on its
own motion, it was error to refuse the Appellant's Motion to strike
Mr. Rife. We find this argument without merit.
In State v. Finley, 177 W.Va. 554, 355 S.E.2d 47 (1987)
we held that all that is required by a circuit court when it
determines that prospective jurors have been exposed to potentially
prejudicial information is that the trial court "shall question or
permit the questioning of the prospective jurors individually, out
of the presence of the other prospective jurors, to ascertain
whether the prospective jurors remain free of bias or prejudice."
Syl. pt. 1, in part. The circuit court properly allowed lawyers
for each party to conduct a benchside voir dire of Mr. Rife to
determine if he was prejudiced or biased.
During voir dire, Mr. Rife was asked whether his son's
drunk driving accident would prevent him from rendering a verdict
based upon the evidence. Mr. Rife replied, "No, sir, I don't believe they would." Mr. Rife also stated, "I feel that a person
who is under the influence shouldn't be driving but I understand
that they do, and, you know, I don't think they should." (Response
of Appellee to Petition for Appeal, Ex. 3, at 36)
Mr. Strickland, in contrast with Mr. Rife, expressly
stated he was biased. During voir dire, Mr. Strickland revealed
that his mother had been seriously injured by a drunk driver and
that his son had injured himself in a separate accident driving
while intoxicated. When asked whether those drunk driving
incidents would interfere with Mr. Strickland's ability to listen
to the evidence in this case, he responded, "No. I have a very
biased opinion about drunk driving, but I am just being honest."
[Emphasis added.] There was no objection to Mr. Strickland's
subsequent dismissal, and there is no cause for comparison with the
circuit court's treatment of juror Rife.
The decision to grant a motion to strike a juror for
cause is within the sound discretion of the trial court. State v.
Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992)(citing State v.
Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954)). The decision of
the trial court shall not be disturbed unless an abuse of
discretion has occurred. State v. Carduff, 142 W.Va. 18, 93 S.E.2d
502 (1956). Upon reviewing excerpts of voir dire, we find no abuse
of discretion occurred in this case.
The circuit court followed this Court's ruling in Finley,
supra by allowing additional questioning by counsel out of the
presence of the jury. Furthermore, Mr. Rife's responses reasonably
indicate that he had the ability and intent to be a fair and
impartial juror. Upon this basis the circuit court made the
determination that he did not harbor prejudice or bias and refused
to disqualify him per se because of his son's DUI accident. We
believe that Mr. Rife's responses to voir dire revealed that he
could render a verdict solely on the evidence and the court's
instructions. Therefore, the appellant failed to establish that
the circuit court judge abused his discretion in refusing to strike
Mr. Rife for cause.
Appellant next asserts that the circuit court erred in
allowing Mr. Murphy's counsel to introduce evidence of his lack of
financial worth, while precluding Ms. Wheeler's counsel from
introducing rebuttal evidence of Mr. Murphy's insurance coverage.
In Syl. pt. 3, Garnes v. Fleming Landfill Inc., 186 W.Va. 656, 413
S.E.2d 897 (1991) we held that:
When the trial court instructs a jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
(5) the final financial position of the defendant is relevant.
Accord Syl. pt. 14, TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff'm ___ U.S. ___, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). Therefore, defense counsel was properly permitted to introduce evidence of Mr. Murphy's financial position in response to Mrs. Wheeler's claim for punitive damages.
In TXO, supra we recognized that the wealth of a
defendant is a relevant consideration for the jury when considering
the issue of punitive damages. Accord Slack v. Kanawha County
Housing and Redevelopment Authority, 188 W.Va. 144, 156, 423 S.E.2d
547, 559 (1992). During the defense case in chief, Mr. Murphy
testified that he lived with his parents and he had no additional
income beyond the $300 to $320 a week he made working at Krogers.
He had five dollars ($5) in a savings account, and the only vehicle
he owned was a 1988 Chevrolet Sprint without a motor or a
The appellant argues that this testimony was introduced
to engage the sympathy of the jury by highlighting Mr. Murphy's
apparent inability to satisfy any judgment the jury might impose.
We recognized the use of this litigation strategy with approval in
Slack, supra, stating that "[i]n some cases, the defendant may wish to demonstrate its meager financial status as a way of holding down
a punitive damage award." However, this court has never addressed
the propriety of plaintiff's counsel offering proof of the
defendant's insured status in rebuttal, to be considered by the
jury when awarding punitive damages.
After reviewing Rules 411 and 611(a) of the West Virginia Rules of Evidence ("WVRE") , we find that the circuit court's refusal to allow the plaintiff to introduce evidence of Mr. Murphy's liability insurance on rebuttal was an abuse of discretion. We shall address the admissibility of liability insurance and the issue of judicial discretion in allowing rebuttal evidence separately. Generally, a jury should not in any manner be informed of the insured or uninsured status of a defendant.See footnote 3 Syl. pt. 2, Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961) overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); Hewett v. Frye, 184 W.Va. 477, 481, 401 S.E.2d 222, 226 (1990).
Courts have consistently held that evidence that a
defendant carries liability insurance is not admissible to prove
that he might be less cautious than an uninsured person because any
judgment against him would be paid by his insurer. Franklin
Cleckley, Handbook on West Virginia Evidence, §4-11(A), at 425 (3rd
ed. 1994). It is also inadmissible to offer proof of the
defendant's impoverished status for the same purpose. Id. Thus,
both the insured status of a defendant and his lack of wealth is
irrelevant to the ultimate determination of whether the defendant
was actually at fault, and so this evidence is generally ruled to
Under Graham, supra, we held that allowing implicit or explicit reference by defense counsel to his client's uninsured status requires reversal. See Syl. pt. 4, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983)See footnote 4. In Graham, supra, we concluded that:
[T]he jury should not be appraised in any way that the defendant is not insured against liability, not only because such fact is immaterial to any proper issue in the case, but also because of the tendency such fact may have to cause the jury out of sympathy for the defendant to relieve him improperly from liability, or to return in favor of the plaintiff a verdict which is inadequate in amount.
Graham, 147 W.Va. at 489, 120 S.E.2d at 718. However, as we noted in Graham, our particular objection to defense counsel's implicit reference to his clients uninsured status was that it "could have no conceivable relevancy to any proper issue in the case." Graham, 146 W.Va. at 494, 120 S.E.2d at 720; See Kaiser, 173 W.Va. at 551, 318 S.E.2d at 601. That is not true in this case.
In accordance with Slack, supra, the defense counsel
chose to offer proof of his client's lack of financial worth as
part of his case in chief. Under Rule 411, WVRE  taken
substantially from the federal rule:
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, if controverted, or bias or prejudice of a witness.
Under TXO, supra, evidence of the defendant's poverty was relevant and admissible because it was offered in response to Mrs. Wheeler's request for punitive damages. See Syl. pt. 2, Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), overruled on other grounds Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991); Leach v. Biscayne Oil & Gas Co., 169 W.Va. 624, 628, 289 S.E.2d 197, 199 (1982). It was not offered for the purpose of determining the defendant's liability.
Mrs. Wheeler sought to introduce evidence that Mr. Murphy
had liability insurance and the amount of his coverage as rebuttal
evidence. Proof of Mr. Murphy's insured status was being offered
on rebuttal as a financial asset that should be considered by the
jury in awarding punitive damages. Thus, this evidence did not
violate Rule 411, WVRE .
In TXO, supra, where we held that the court should, at a
minimum, carefully explain the factors to be considered in awarding
punitive damages, we held that the final financial position of the
defendant is relevant. The jury was told by Mr. Murphy he had no
income other than what he earned from his job at Krogers. Proof of
insurance was being offered to rebut any inference that Mr.
Murphy's wages alone represented the total assets to be considered
by the jury when deliberating on the issue of punitive damages. A
defendant's net worth is relevant to the issue of punitive damages,
and in this case, where defense counsel offered evidence of Mr.
Murphy's meager finances, the plaintiff's rebuttal evidence
disclosing the existence and policy limits of Mr. Murphy's liability insurance is not barred by either Rules 401-403 or Rule
411, WVRE .
Having ruled that evidence of the defendant's liability
insurance and the amount of coverage is not excluded under Rule
411, we will now address the propriety of the circuit judge's
refusal to permit plaintiff's counsel to introduce this evidence on
rebuttal. Under Rule 611(a), WVRE , identical to its federal
counterpart, the circuit court judge is entitled to exercise broad
discretion over the manner in which proceedings are conducted.
Rule 611(a)  provides:
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
[Emphasis added.] In Belcher v. Charleston Area Medical Center, 188 W.Va. 105, 422 S.E.2d 827, 832 (1992), we stated that "the trial court's discretion in permitting or excluding rebuttal evidence comes within the ambit of Rule 611(a)." However, "the most significant limitation on the court's authority under Rule 611(a) is that the action of the court must be reasonable." Cleckley, supra, § 6-11(A) at 767.
Despite the discretionary language of Rule 611(a), there
are some rights associated with the order of proof that cannot be
denied. Although Rule 611(a)  gives the circuit court broad
discretion in admitting or excluding rebuttal evidence, in Belcher,
supra, we stated that this Court will reverse the ruling of the
circuit court when there has been an abuse of discretion. We have
suggested in several opinions that the plaintiff or prosecution has
the right to rebut defense evidence. State v. Dennison, 85 W.Va.
261, 101 S.E. 458 (1919); State v. Williams, 49 W.Va. 220, 38 S.E.
495 (1901); Johnson v. Burns, 39 W.Va. 658, 20 S.E. 686 (1894).
"Therefore, the evidence that plaintiff is entitled to introduce
must tend to deny, explain, or discredit facts and witnesses
adduced by the defense during its case in reply. Refutation
evidence offered by the plaintiff/prosecution after the close of
the defendant's case in chief is called rebuttal." Cleckley,
supra, § 6-11(D)(3) at 777.
We find that the plaintiff should be given the
opportunity for rebuttal as a matter of right, when the rebuttal
evidence consists of "[n]on-collateral evidence that is made
material and relevant only because of the defense case". Cleckley,
supra, § 6-11(D)(3) at 779. There is considerable confusion among
lawyers and judges alike, when considering the plaintiff's right to
introduce pure rebuttal evidence, (evidence offered after the close
of the defendant's case to explain, or refute contradictory evidence offered by the defendant, limited in scope to matters
covered in reply), compared to the case where the evidence sought
to be admitted on rebuttal could have or should have been offered
in the case in chief.
It is the admission of rebuttal evidence under the
second category above which falls entirely within the discretion of
the circuit court. Cleckley, supra, § 6-11(D)(3) at 779. The
court has discretion in admitting evidence admissible in-chief,
when offered in rebuttal. In Edmiston v. Wilson, 146 W.Va. 511,
120 S.E.2d 491 (1961), we stated that
[A]s a general rule, the conduct of trials and the order of introducing testimony, subject to well established rules of practice and procedure, rest within the sound discretion of the trial court, and the rule is applicable to the admissibility of evidence in rebuttal which could and should have been introduced by the plaintiff in chief.
[Emphasis added.]; Accord Belcher, 108 W.Va. at 109, 422 S.E.2d at 831. We find that a plaintiff does have the right to introduce pure rebuttal evidence, to explain, repel, counteract, or disprove facts offered into evidence by the defendant, when the scope is properly limited to matters in reply to issues raised by the defendant.
In the Handbook on West Virginia Evidence Justice
Cleckley considered judicial discretion under Rule 611, WVRE and
the plaintiff's right to present rebuttal evidence.
"[Where], the plaintiff is merely requesting
an opportunity to do in rebuttal what should
have been done in the case in chief ...[t]his
is not true rebuttal. Rather, it is analogous
to a request to permit the plaintiff to reopen
its case. On the other hand, where the court
has found the evidence to be truly rebuttal,
such evidence has been consistently allowed as
a matter of right or within the discretion of
the court. For example, in State v. Williams,
the court stated: `But this is rebuttal
evidence, and the prisoner had the right to
give evidence to meet it.' See also State v
Dennison, 85 W.Va. 261, 101 S.E. 458 (1919).
Similarly, in State v. Oldaker, 172 W.Va. 258,
304 S.E.2d 843 (1983), the court in an actual
rebuttal situation that there was no abuse in
permitting a witness for the state to be
called in rebuttal where such witness was
called to impeach the defendant's testimony
and where the rebuttal by such witness was
limited to impeachment. In either of the
above cases, refusal to admit this testimony
would undoubtedly be error.
[Emphasis added.] Cleckley, supra, § 6-11(D)(3) at 779. We find that the circuit court's refusal to allow plaintiff's counsel to introduce evidence of Mr. Murphy's liability insurance and policy limits to rebut the defense evidence of Mr. Murphy's meager income, was an abuse of discretion.
The financial status of Mr. Murphy is proper material for
the jury to consider when deliberating the punitive damage issue. When Mr. Murphy choose to offer evidence of his low income and
minimal assets, plaintiff's counsel was entitled to elicit evidence
on rebuttal to counteract the impression that Mr. Murphy would be
unable to satisfy a large punitive damage award. The plaintiff
should have been permitted to introduce the evidence of Mr.
Murphy's liability insurance in order fully to explain the
defendant's financial status to the jury.
Evidence of the defendant's liability insurance is
neither irrelevant nor collateral evidence in this case. The
financial status of the defendant is directly relevant to the issue
of punitive damages. When the defense offers an incomplete picture
of a defendant's assets for consideration on a punitive damage
issue, the plaintiff is entitled as a matter of right to rebut that
evidence with evidence of the defendant's liability insurance. In
Syl. pt. 2 of Perdue v. Caswell Creek Coal & Coke Co., 40 W.Va.
372, 21 S.E. 870 (1895), we stated that "[w]hether plaintiff shall
be allowed to give further evidence after defendant's evidence is
closed is within the discretion of the trial court: and its
exercise will rarely, if ever, be the ground of reversal by an
appellate court. Clearly, he is entitled to give evidence to rebut
that of the defendant." [Emphasis added.]
The plaintiff was erroneously denied the right to present
pure rebuttal evidence, thus denying the jury relevant information on the issue of punitive damages. This opinion is not a carte
blanche invitation to plaintiffs' lawyers to inject liability
insurance into every case. This is a very limited holding; we
merely decline to encourage defense lawyers to offer evidence of their clients' poverty to influence the jury determination of punitive damage awards, while refusing the right of plaintiff's lawyers to offer evidence on rebuttal to explain more fully or refute the evidence of the defendant's financial worth. If a defendant does not offer evidence of his financial status or imply poverty, then neither may the plaintiff offer evidence of the defendant's insurance coverage either in the plaintiff's case in chief or on rebuttal. However, once the defendant offers evidence of his financial status to influence the jury on punitive damages, then the plaintiff may rebut such evidence by introducing proof of the defendant's liability insurance. The plaintiff's right of rebuttal is not defeated by the mere mention of insurance.
In this case, evidence of liability insurance is being
offered in pure rebuttal, upon the punitive damages issue, for the
purpose of assisting the jury in understanding the defendant's
total financial worth. Under these limited circumstances, the
plaintiff was entitled to offer evidence of the defendant's
liability insurance on rebuttal. We find that the circuit court
judge abused his discretion by refusing to allow the plaintiff to offer evidence of the defendant's liability insurance in rebuttal.
Mrs. Wheeler also asserts that the trial court erred in
allowing the following jury instructions:
[Emphasis added.] These instructions required that the jury find both that Mr. Cottrill was visibly intoxicated, and that Mr. Murphy knew this when he substantially encouraged or assisted Mr. Cottrill's intoxication.
In Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380
(1987), we established the standard under which a passenger in a
motor vehicle may be found liable to a third party for injuries
caused by the driver's intoxication.
What we discern is a proper rule is that a passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met:
(1) the driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party's injuries, and
(2) the passenger's conduct substantially encouraged or assisted the driver's alcohol or drug impairment.
[Emphasis added.] Id. at 600, 355 W.Va. at 389. Applying this standard to the facts of this case, the jury should only have been required to find that the driver was driving while under the influence of alcohol which proximately caused the accident, not that he was visibly intoxicated. Furthermore, there is no requirement that the passenger know that the driver is drunk. The passenger is liable if the jury finds that he substantially encouraged or assisted the driver's intoxication.
In Anderson v. Moulder, 183 W.Va. 77, 394 S.E. 2d 61
(1990), we applied the Price, supra standard to a case where a plaintiff/passenger sued a store that sold alcohol to a
minor/driver, who subsequently became drunk and crashed the vehicle
injuring the plaintiff. In Anderson, we imposed no requirement
that the driver be visibly intoxicated or that the store clerk
have the knowledge that the driver was drunk when substantially
encouraging or assisting the driver's intoxication.See footnote 5 This Court
simply applied the rule in Price, supra, holding that the Plaintiff
would be liable for contributory negligence if he substantially
assisted and encouraged the driver's intoxication that proximately
caused the accident.
We find that there are no "knowledge" or "visibly intoxicated" requirements for proving a prima facie case of passenger liability, under the standard enunciated by this court in Price, supra. "`An instruction which does not correctly state the law is erroneous and should be refused.' State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971)" Syl. pt. 3, State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Accordingly, we find that the circuit court erred in issuing both Instruction No. 4, and Instruction No. 12.
In order properly to perform its function, a jury must be
given a correct statement of the applicable laws in the
instructions issued by the court. State v. Belcher, 161 W.Va. at
665, 245 S.E.2d at 164-165. "`An erroneous instruction is presumed
to be prejudicial and warrants a new trial unless it appears that
the complaining party was not prejudiced by such instruction.'
[Citations omitted.]" Syllabus Point 6, Ratlief v. Yokum, 167 W.Va.
779, 280 S.E.2d 584 (1981). Accord Syl. pt. 3, Cunningham v.
Martin, 170 W.Va. 411, 294 S.E.2d 264 (1982); Birch v. Kelly, 177
W.Va. 564, 355 S.E.2d 57 (1987); Rodgers v. Rodgers, 184 W.Va. 82,
95, 399 S.E.2d 664, 667 (1990); Harris v. Matherly Machinery Inc.,
187 W.Va. 234, 417 S.E.2d 925 (1992); Myers v. Morgantown Health
Care Corp., 189 W.Va. 647, 650, 434 S.E.2d 7, 10 (1993). The
appellant was prejudiced by the two erroneous instructions issued
by the court.
The trial transcript reveals that the issue of whether Mr. Cottrill was visibly intoxicated, and whether Mr. Murphy knew Mr. Cottrill was drunk at the time of the incident was the focal point of the defense's argument. In view of the indeterminate and confusing testimony offered on these issues, it is highly conceivable that the jury's verdict in favor of the defendant was attributable to the conclusion that Mrs. Wheeler offered insufficient proof on the visible intoxication issue, and that there was not enough proof that Mr. Murphy knew Mr. Cottrill was drunk when the conduct in question occurred.
The testimony reveals that at the time of the accident
Mr. Murphy was passed out in the car. He scarcely remembers
anything about that day other than that there was alcohol present
at times and that somehow he ended up dunk. Furthermore, witnesses
offered conflicting testimony about whether Mr. Cottrill was
visibly intoxicated that day, and if so, at what point his
impairment became evident.
The jury was plainly and incorrectly instructed that Mr.
Cottrill's visible intoxication and that Mr. Murphy's knowledge of
the driver's inebriation were key elements necessary to prove a
prima facie case of passenger liability. If the jury decided that
both of these incorrect elements had been met, only then were they
instructed to address the issue of Mr. Murphy's contribution, according to Defendant's Instruction No. 12. Thus, the issue of
whether Mr. Murphy substantially assisted or contributed to Mr.
Cottrill's intoxication presumably escaped deliberation.
We find that Mrs. Wheeler was prejudiced by the erroneous
jury instructions. Accordingly, we reverse the jury's verdict and
remand for a new trial. Based upon our decision to grant a new
trial, we need not address the appellant's final assignment of
error asserting that the jury verdict was unsupported by the
For the reasons stated herein, the judgment of the Circuit Court of Kanawha County is reversed and remanded for a new trial.
Footnote: 1 Although Ms. Woods testified that at times the bottle was passed between Mr. Murphy and Mr. Cottrill by her hands, she did not testify that the bottle was never passed directly between the two men. In any event, whether the bottle passed directly from Mr. Murphy to Mr. Cottrill, or by a third-party is irrelevant to the issues before this Court.
Footnote: 2 Appellant did not object until filing a Motion to Set Aside the Jury Verdict and For New Trial, denied by 11 May 1993 Order of the Circuit Court of Kanawha County.
Footnote: 3 Just as reference to a defendant's insured or uninsured status is irrelevant and inadmissible when offered on the issue of liability, evidence of a defendant's poverty offered for the same purpose is inadmissible. Franklin Cleckley, Handbook on West Virginia Evidence, §4-11(A), at 425 (3rd ed. 1994). However, under Rule 411, WVRE, this same evidence may be admissible if relevant and offered for a purpose other than to show a person acted negligently. Id. at 427.
Footnote: 4 "In an action for recovery of damages arising from the operation of a motor vehicle, the jury should not in any manner be informed that the defendant is not protected by insurance. If in such a case counsel for the defendant, in his argument addressed to the jury, states that the defendant is not protected by such insurance, or if he makes remarks clearly implying that the defendant is not so protected, his so doing will ordinarily constitute reversible error, notwithstanding the fact that the jury is instructed by the court not to consider such remarks in arriving at a verdict." Syl. pt. 2, Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961) overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).
Footnote: 5 Here we do not mean to imply that simply serving alcohol to a patron or social guest ipso facto makes the server of alcohol liable for alcohol-related injuries. Obviously tavern and liquor store owners have a higher duty than social hosts, and a purveyor of alcohol must, indeed, be aware that intoxication and dangerous conduct is a foreseeable result following the consumption of alcohol. In this case, we are dealing with a defendant who is accused of substantially encouraging or assisting the commission of a violation of our motor vehicle laws, which resulted in an automobile accident that left two people dead, and seriously injured the Appellant.
In Anderson, supra in text, a liquor store sold alcohol to a minor in violation of W. Va. Code, 11-16-18(a)(3) (amended 1991), prohibiting the sale of beer to a person under the age of twenty-one. Similarly, in Syl. pt. 11, of Price, supra we held that "[t]he violation of our motor vehicle statutes is prima facie evidence of negligence." Thus, whenever anyone consumes alcohol in a car or while driving from party to party, a person in that car is doing something inherently dangerous when he or she aids or abets the driver's consumption of alcohol in violation of W. Va. Code, 17C-5-2  (amended 1994).