CHERI W. HEFLIN, APPELLANT
STEPHEN MERRILL AND/OR THE ESTATE OF STEPHEN MERRILL AND NATIONWIDE INSURANCE COMPANY, APPELLEES
DATE OF JUDGMENT: 10/14/2011.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT DISPOSITION: ENTERED JUDGMENT AWARDING $32,500 TO APPELLANT.
FOR APPELLANT: NICHOLAS VAN WISER, MATTHEW G. MESTAYER.
FOR APPELLEES: WILLIAM L. MCDONOUGH JR., JEREMY DALE HAWK, NICHOLAS KANE THOMPSON, JAMES LEROY BANKS IV.
BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. 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.
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
¶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.
FACTS AND PROCEDURAL HISTORY
¶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,  Nationwide, and Ciuffetelli. Heflin alleged that Merrill was liable due to his negligent operation of the vehicle. She further alleged that her insurance provider, Nationwide, was liable under the provisions of the UM clause of her policy. Finally, Heflin alleged that Ciuffetelli was liable under a theory of negligent entrustment and/or respondeat superior because he owned the vehicle that caused the accident and had allegedly given Merrill permission to use the vehicle. 
¶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:
Nationwide . . . has offered to stipulate [that] the policy made the subject of this suit was in full force and effect at the
time of the subject accident and that it will be responsible for payment of any final judgment in excess of the liability coverage limit of [Merrill's estate]. The existence of the Nationwide . . . policy would have no relevance to any issue to be decided by the jury and should therefore be excluded under Mississippi Rule[s] of Evidence 402, 403, and 411.
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:
The parties agree and stipulate as follows:
At the time of the accident, [Heflin] was insured by [Nationwide.] She maintained, through her husband, . . . an uninsured motorist (UM) policy with a policy limit of up to $600,000.00. Additionally, [Merrill] at the time of the accident qualified as an owner or occupier of an under insured motor vehicle and 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.
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.
I. Whether the circuit court erred in granting Nationwide's motion in limine, preventing disclosure to the jury of Nationwide's name and the existence of Heflin's UM policy through Nationwide, but permitting counsel for Nationwide to participate in the trial.
¶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
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E. 403.
¶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:
With regard to the initial motion, based on the parties' assertions, this issue has not been addressed by our state appellate courts. Though I do recognize there are different approaches to the instant issue with those approaches being extra jurisdictional approaches, I do understand, and it's the view of this court that based on the circumstances of this particular case[,] where liability is admitted[,] and taking into account the stipulation agreed to by and between the parties, it is the extent of the plaintiff's injuries, if any, that are relevant to [the] instant litigation.
Whether or not UM coverage exists is not relevant. And it's the court's opinion that introducing that issue along with the existence of Nationwide['s coverage] . . . to the jury would potentially prejudice that jury as to a determination of damages. Therefore[,] Nationwide's motion in limine is granted.
¶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.  In response to the dissenting opinion, this Court finds the circuit court based its ruling on the limited facts in this case, where liability was admitted and there was a stipulation between the parties. The circuit court also recognized that this issue had not been addressed by our state appellate courts. This issue is without merit.
II. Whether the circuit court erred in excluding Mike's testimony regarding the speed at which Merrill was traveling at the time of the accident.
¶13. " A circuit court's admission or exclusion of evidence is reviewed
for abuse of discretion." Harrison v. Walker, 91 So.3d 41, 44 (¶ 13) (Miss.Ct.App. 2011). This Court " will not reverse the admission or exclusion of evidence unless the error adversely affects a substantial right of a party." Id. at 45 (¶ 13).
¶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:
Q: Okay. When you're sitting there at the stop sign watching the traffic coming from the north on your left there, did you have any indication that there was about to be a wreck?
A: . . . I was watching traffic to the north that was coming from the north to the south. And I had glanced back and glanced in my rearview mirror and saw Mr. Merrill as he was barreling down on top of us. And I knew at [that] instant that we were fixing to be hit.
Q: Where did you see him, I mean, in the rearview mirror?
A: I saw him in the rearview mirror. And it was just a glance just before it happened.
Q: Okay. How hard did it hit you?
A: It hit us real hard, did a lot of damage to the back of my truck. I was concerned that it was going to push us out into the traffic . . . so I instinctively stepped on the brakes really hard and braced myself.
Q: Do you have an opinion as to how fast the Mercedes was going when it hit the back of your truck?
At that point, counsel for Merill's estate objected, arguing the following:
[COUNSEL FOR MERRILL'S ESTATE]: Objection, Your Honor. I don't think Mr. Heflin is qualified to render opinions about the speed of motor vehicles that he sees in the rearview mirror of his truck. He has no expertise or training in that regard, and he certainly hasn't been designated as an expert in that field.
THE COURT: What says the plaintiff as to that calling for speculation?
[COUNSEL FOR HEFLIN]: Your Honor, he was there. This is not like an accident reconstructionist. This is not based upon certain things that an expert would know. He was in the truck. He . . . saw the car coming. I'll be happy to give a little bit more of his background in terms of what he's basing this on. But first of all I just asked if he had an opinion. I think he's entitled to have an opinion. And it's certainly subject to cross-examination. And they can find out whether or not he has [a] basis for that.
THE COURT: All right. I [will] allow him to answer as to whether he has an opinion or not. And then the further questioning with regard to that opinion, you may make your objection if you so see it fit, defense.
[COUNSEL FOR MERRILL'S ESTATE]: Yes, Your Honor.
Q: Do you have an opinion as to how fast he was going?
A: I do. He --
[COUNSEL FOR MERRILL'S ESTATE]: Objection, Your Honor.
THE COURT: The objection is sustained.
The direct examination of Mike continued as follows:
Q: Okay. Without saying what that opinion is, okay. We're going to take baby steps here. Tell me the various things that you are relying
upon in formulating that opinion. . . .
A: . . . Speed limit on the road was 25 miles per hour. When our truck was hit, it actually hit us with such force that it pulled concrete or the pavement -- the asphalt on the road where the tire ...