White v. Piles
1979 Ky. App. LEXIS 480, 589 S.W.2d 220 (1979)
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Rule of Law:
Under Kentucky law, counsel may not affirmatively state or emphasize a defendant's insured status, even in a case involving an uninsured motorist, as this creates undue prejudice. Additionally, to impeach a witness with a prior inconsistent statement from a deposition, counsel must first lay a foundation by confronting the witness with the statement and providing an opportunity for explanation, pursuant to CR 43.08.
Facts:
- On January 12, 1975, Sherry L. White was a passenger in an automobile driven by Richard Molyneaux.
- The vehicle driven by Molyneaux collided with an automobile driven by Patricia J. Piles.
- As a result of the collision, White suffered a shattered knee and a fractured knee joint.
- Richard Molyneaux was an uninsured motorist.
- White's automobile insurance policy, provided by Western Casualty and Surety Company, contained an uninsured motorist clause.
Procedural Posture:
- Sherry L. White filed suit against Richard Molyneaux, Patricia J. Piles, and Western Casualty and Surety Company in a state trial court.
- At the first trial, the court directed a verdict establishing sole liability against Piles and dismissed Molyneaux and the insurance company from the action.
- The jury returned a verdict for White, awarding $24,312.00 in damages against Piles.
- The trial court granted Piles' motion for a new trial solely on the issue of damages.
- At the second trial, the jury awarded White $10,000.00 in damages.
- White's motion for a new trial was denied by the trial court.
- White, as appellant, appealed the judgment entered after the second trial to the intermediate court of appeals.
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Issue:
1. Did plaintiff's counsel improperly inject the existence of insurance into the trial by stating in closing arguments that the only uninsured motorist had been dismissed, thereby warranting a new trial? 2. Is it reversible error for a trial court to permit counsel to read a witness's deposition into evidence for impeachment purposes without first confronting the witness with the allegedly inconsistent statements and giving the witness an opportunity to explain them?
Opinions:
Majority - Cooper, J.
1. Yes. While the presence of an uninsured motorist may require identifying the insurance company's counsel to avoid jury confusion, this exception does not permit a plaintiff's counsel to then affirmatively emphasize that the remaining defendant is insured. The long-standing rule in Kentucky prohibits the mention of liability insurance because it is irrelevant and may cause a jury to impose liability without regard to fault. Counsel's comment that the court had dismissed the 'only uninsured motorist' went beyond the narrow purpose of the exception established in Wheeler v. Creekmore and served to positively emphasize Piles' insured status. Because the record does not clearly show that no prejudice resulted, the trial court's decision to grant a new trial was proper. 2. Yes. It is a reversible error to admit a deposition for impeachment without a proper foundation. Kentucky Rule of Civil Procedure (CR) 43.08 requires that before extrinsic evidence of a prior inconsistent statement can be offered, the witness must be confronted with the statement—including the circumstances of time, place, and persons present—and be given an opportunity to explain it. This rule applies to depositions. In the second trial, counsel for Piles read Dr. McCrocklin's deposition into evidence after the doctor had been excused as a witness, without ever confronting him with the alleged inconsistencies. Because the deposition substantially contradicted the doctor's live testimony on material issues, the error was not harmless and necessitates a new trial.
Analysis:
This decision reinforces Kentucky's strict prohibition against mentioning a defendant's insurance status to a jury, narrowly construing the exception for cases involving uninsured motorists. It serves as a clear warning to trial attorneys that any comment highlighting a party's insurance coverage, even if inferable from other facts, can be grounds for a mistrial. The case also affirms the mandatory nature of the procedural requirements for witness impeachment under CR 43.08, establishing that failing to lay a proper foundation by confronting a witness with a prior inconsistent statement from a deposition is not a harmless error if the inconsistency is material. The opinion prioritizes procedural correctness and the avoidance of jury prejudice over judicial economy.
