{ "id": 1896953, "name": "SYNERGY GAS CORPORATION v. Ida LINDSEY", "name_abbreviation": "Synergy Gas Corp. v. Lindsey", "decision_date": "1992-12-07", "docket_number": "92-598", "first_page": "265", "last_page": "272", "citations": [ { "type": "official", "cite": "311 Ark. 265" }, { "type": "parallel", "cite": "843 S.W.2d 825" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "246 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604116 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/246/0005-01" ] }, { "cite": "253 Ark. 1063", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627314 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/1063-01" ] }, { "cite": "275 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753630 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0367-01" ] }, { "cite": "310 Ark. 98", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898876 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/310/0098-01" ] }, { "cite": "296 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892714 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "576" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0571-01" ] }, { "cite": "308 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904333 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0060-01" ] }, { "cite": "310 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898854 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0086-01" ] }, { "cite": "246 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604116 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/ark/246/0005-01" ] } ], "analysis": { "cardinality": 767, "char_count": 14475, "ocr_confidence": 0.924, "pagerank": { "raw": 1.2791761732146045e-07, "percentile": 0.6171184111506115 }, "sha256": "a47cb2c88241afb1200f040d9d8d2ebaaf8e93d8fd72592abbc8811cc9e4d714", "simhash": "1:9d2a6a49eba4d0d4", "word_count": 2403 }, "last_updated": "2023-07-14T21:22:33.473421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hays, J., concurs.", "Glaze, J., dissents." ], "parties": [ "SYNERGY GAS CORPORATION v. Ida LINDSEY" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellant, Synergy Gas Corporation, argues for reversal on the basis that a reference to Synergy\u2019s liability insurance elicited from a Synergy employee by appellee Ida Lindsey\u2019s counsel was prejudicial error. We believe that the reference to insurance was prejudicial, and we reverse and remand for a new trial.\nOn August 28, 1989, the appellee, Ida Lindsey, age 76, reported to Synergy employees that she smelled gas in her house, which was located west of Caldwell. That afternoon, two employees, Danny Shackleford and James Goings, were sent to her house from Forrest City to investigate. Shackleford tightened a valve, which slowed the leak. He did not go inside the house to determine whether the water heater or floor furnace pilot light were on. Nor did he advise Mrs.Lindsey to spend the night elsewhere due to potential danger.\nThe following morning, August 29, Shackleford accompanied by Bob Lee, Synergy\u2019s Forrest City branch manager, returned to the Lindsey home to remove gas from an unused underground butane tank. The men did not remember notifying Mrs. Lindsey of their presence. They also failed to crawl under the house to determine conditions or otherwise to ascertain whether her pilot lights were on. They did not request that she leave the house or turn off her appliances. Instead, both testified that they went directly to work on \u201cbleeding\u201d the tank. Lee later testified, \u201cI had one thing on my mind and that was getting that gas out.\u201d\nLee attached 150 feet of hose to the tank and began releasing the butane in a field to the northeast of the appellee\u2019s house. After the gas had been drained, the men removed the percentage gauge from the tank. Lee then left, and Shackleford, who was certified only to transport and deliver propane and butane gas, continued the work. He poured some dishwashing detergent into the tank to \u201ckill the vapors,\u201d and after that, he began to fill the tank with water. At that point, gas fumes started to escape, accompanied by what Shackleford described as a \u201croaring\u201d or \u201cwhistling-like noise.\u201d Detecting the odor of Mercap in the tank, Shackleford cut off the water. Shackleford turned the water on again but cut it off when the noise resumed and the odor resumed. He did not, however, warn Mrs. Lindsey. Concerned, he called the branch office and spoke with Lee, who told him \u201cnot to worry about it.\u201d\nAfter this conversation, Shackleford heard what he described as a \u201ccrackling noise\u201d and saw a flame run out from a vent beneath the house. He was suddenly knocked back 15 to 25 feet by an explosion. He immediately contacted his office by radio, requesting it to alert the fire department. Shackleford next went to the front door of the house and found Mrs. Lindsey, who had come to the door in response to his efforts to break it down.\nMrs. Lindsey, testimony later revealed, was thrown from her chair by the same explosion and landed on the floor. As Shackle-ford attempted to get her away from the house, she insisted on retrieving her purse. Shackleford went back into the burning house and got the purse. Mrs. Lindsey filed suit against Synergy and sought damages for medical expenses, mental anguish (past and future), and property damage. In addition, she asked for punitive damages. The case was tried before a jury over two days. Synergy admitted liability for the occurrence but contested compensatory damages and denied liability for mental anguish or punitive damages. The jury returned verdicts in favor of Mrs. Lindsey in the amounts $36,436.46 for compensatory damages, $20,100 for mental anguish, and $120,000 for punitive damages.\nSynergy first contends that Mrs. Lindsey\u2019s counsel questioned Bob Lee, who was one of the last witnesses, in such a way as to elicit prejudicial testimony of Synergy\u2019s liability coverage. At deposition, Lee had responded to counsel\u2019s questions about assurances he had given Mrs. Lindsey\u2019s son, Bee Lindsey, about Synergy\u2019s willingness to cover the loss with the following:\nI told Bee. I said you\u2019ve got nothing to worry about. They have insurance. It will be covered. That is what John Neal told me. He said she ain\u2019t got nothing to worry about. I told you what my supervisor told me.\nAt trial, counsel for Mrs. Lindsey called Lee as a hostile witness and challenged him on various points that were inconsistent with statements he had made in his deposition. At one point, the trial court ruled that appellee\u2019s counsel stay behind the podium and let Lee finish answering the questions after Synergy\u2019s attorney objected to the fact that counsel was badgering the witness. The following exchange occurred later in the cross-examination:\nQ. What did you tell [Bee] about it? Did you tell him you had talked with your supervisor in West Memphis?\nA. I told him I had called him.\nQ. And what did you tell [Bee]?\nA. I told him that I called him and he would be out there and I guess that\u2019s it.\nQ. You know what I mean. What did you tell [Bee] about the situation?\nA. Well I told him the company had insurance and I was sure he didn\u2019t have anything to worry about. That it would take care of it.\nQ. You told him that you spoke to your supervisor, and he said tell Mrs. Lindsey she didn\u2019t have to worry about a thing. That they would take care of everything, didn\u2019t you?\nA. That\u2019s right. That\u2019s what I was told.\nTestimony continued on measures that Lee ordered to be taken after the explosion to determine whether there were any broken lines or loose connections under the house and efforts to assist Mrs. Lindsey. When Mrs. Lindsey\u2019s counsel asked Lee whether Synergy continued to send her a bill, Synergy\u2019s counsel objected, and the trial court summoned all attorneys to the bench. At that time Synergy moved for a mistrial on grounds that Mrs. Lindsey\u2019s counsel had elicited a response regarding insurance coverage. Mrs. Lindsey\u2019s counsel denied that he had elicited the response and stated that the insurance had not been mentioned at Lee\u2019s deposition: \u201cIn his deposition he said tell Mrs. Lindsey that my people said we would take care of everything. I wasn\u2019t soliciting insurance. Insurance was never mentioned to me, and I wasn\u2019t soliciting that. Mr. Rieves knows that is what the deposition said.\u201d (Emphasis ours.) Mrs. Lindsey\u2019s counsel was not correct in light of the deposition testimony previously quoted in this opinion, which meant the trial court at this stage was misinformed. Insurance was specifically mentioned at the deposition.\nThe circuit court then denied the motion because he did not believe the questioning was purposeful. At the end of all testimony, Synergy\u2019s counsel renewed the motion for mistrial and pointed out to the trial court that Bob Lee had mentioned liability insurance in his deposition in connection with Mrs. Lindsey\u2019s not having anything to worry about. The trial court refused to change his ruling.\nAs a general rule, it is improper for either party to introduce or elicit evidence of the other party\u2019s insurance coverage. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). The injection of insurance coverage is proper only when it is relevant to some issue in the case. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). The crux of the matter, then, is whether the question that prompts a reference to insurance is \u201crelevant to an issue or is designed to skew the jury\u2019s thinking because of the presence or absence of a deep pocket.\u201d Hacker v. Hall, 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988); see also Bull Shoals Community Hospital v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1991).\nWe have held that where there has been an intentional and deliberate reference to insurance when it was not an issue in the case and when the opposing party had not opened the door for its admission, mistrial was the proper remedy. Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30(1982). In that case, the attorney for one of the defendants, in closing argument, argued that the plaintiffs carrier had already paid her medical bills. The trial court refused to declare a mistrial, and we reversed on the basis that the insurance comment was intentional, irrelevant, uninvited, and prejudicial. See also Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973).\nIn Hacker v. Hall, supra, we reversed a jury verdict because of the injection of insurance into the case. There, defense counsel was questioning the plaintiff about why he had employed a lawyer so fast. The plaintiff answered: \u201cBecause the insurance company kept harassing me.\u201d Defense counsel pursued the point:\nDefense Counsel: Which one?\nPlaintiff: State Farm.\nDefense Counsel: The one from State Farm or the one with\nBurnham:\nPlaintiff: No, State Farm.\nBurnham Ford was the plaintiffs employer. We concluded in Hackler that the reference to Burnham Ford\u2019s insurance by the defense counsel was misconduct and was one reason for granting a new trial.\nOn the other hand,we have also held that where the attorney poses a question with apparent sincerity and in good faith rather than in a deliberate attempt to prejudice the jury and the witness answers with a reference to insurance, an admonition by the court is ordinarily sufficient to correct the error. Lin Manufacturing Company of Arkansas, Inc. v. Courson, 246 Ark. 5, 436 S.W.2d 472 (1969).\nHere, the facts are somewhat different, and they present an issue we have not considered before. The trial was solely about damages, liability having been admitted by Synergy. Mrs. Lindsey\u2019s counsel had called Bob Lee as a hostile witness and had used his deposition twice for impeachment purposes before the colloquy at issue. Her counsel knew or should have known that in response to an almost identical question at deposition, Bob Lee said: \u201cThey have insurance. It will be covered.\u201d Nevertheless, counsel forged ahead aggressively, using that deposition to impeach Lee and forcing the issue of precisely what had Lee told Mrs. Lindsey\u2019s son. Lee had been told by Synergy\u2019s attorney not to mention insurance. But counsel for the other side clearly pushed Lee into a corner.\n. We cannot say with absolute certainty that the appellee\u2019s counsel intentionally elicited the information about Synergy\u2019s insurance coverage. We are certain, however, that counsel trod recklessly onto dangerous ground and should have known, based on the deposition he took, the response that he would get from Lee when he pressed him for an answer. Moreover, Mrs. Lindsey\u2019s counsel incorrectly advised the trial court when the mistrial was first under discussion by stating that insurance was not mentioned in Lee\u2019s deposition.\nWe are mindful of the appellee\u2019s contention that Synergy is a major company with considerable assets and that this fact was brought to the jury\u2019s attention in connection with the claim for punitive damages. Nonetheless, it would place us in an untenable position to premise a decision of prejudice on the extent of the insured\u2019s means. Irrespective of a company\u2019s assets, the mention of insurance would have a profound effect on any jury. It suggests, among other things, that a third party would foot part, if not all, of the bill \u2014 especially here when the witness added that the insurance would \u201ctake care of it.\u201d That statement in itself was misleading because liability coverage typically does not cover intentional acts leading to punitive damages.\nAt that point, the metaphorcal bell had rung, and the prejudice was pronounced. While each and every mention of insurance at trial may not constitute reversible error, under the circumstances of this case where appellee\u2019s counsel proceeded recklessly in eliciting an irrelevant response on liability coverage, the trial court erred in refusing to grant a mistrial. We note again in so holding that the trial court was misinformed about the reference to insurance in Lee\u2019s deposition when it first denied the motion for mistrial.\nReversed and remanded.\nHays, J., concurs.\nGlaze, J., dissents.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Tom Glaze, Justice,\ndissenting. I respectfully disagree with the court\u2019s decision to reverse by holding that Ms. Lindsey\u2019s counsel improperly injected insurance through his cross-examination of Synergy\u2019s branch manager, Bob Lee. The majority opinion sets forth Lee\u2019s relevant deposition testimony and trial court testimony, and it is undisputed that, soon after the Lindsey house was damaged, Lee told Ms. Lindsey\u2019s son, Bee, \u201che had nothing to worry about, it (the damage) would be covered.\u201d True, Lee mentioned insurance at his deposition, but Synergy\u2019s attorney informed Lee not to mention insurance at the court trial. Contrary to his attorney\u2019s admonition, he mentioned insurance nonetheless. In fact, he did so, in my view, in answer to a very legitimate and relevant question posed by Lindsey\u2019s counsel.\nObviously, Lindsey\u2019s counsel wanted Lee to tell the jury that Synergy (per Lee) had told Ms. Lindsey and her son that Synergy would take care of her loss. By such a remark, Lee implied Synergy was liable for Lindsey\u2019s entire loss. Lee could have conceded that point without mentioning insurance. Lindsey clearly had every right to have the foregoing admission against interest declared before the jury even though she might not be entitled to Lee\u2019s earlier reference to insurance. Lee volunteered the reference to insurance anyway. When the reference to insurance occurs in good faith rather than in a deliberate attempt to prejudice the jury, an admonition by the court is ordinarily sufficient to correct the error. Lin Mfg. Co. of Arkansas v. Courson, 246 Ark. 5, 436 S.W.2d 472 (1969).\nHere, Synergy requested no cautionary instruction, but instead requested only a mistrial which the court denied. In my view, the trial court did not abuse it\u2019s discretion since the record reflects Lindsey\u2019s counsel questioned Lee in good faith, and because Synergy \u2014 through Lee \u2014 assured Lindsey that Synergy would take care of her loss. With such assurances having been made known to the jury, Synergy would have suffered little prejudice if it had asked the trial court to inform the jurors that insurance was not relevant and to admonish them not to consider any reference to insurance in their deliberations.\nFor the above reasons, I would affirm.", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Rieves & Mayton, by: William J. Stanley, for appellant.", "Butler Hickey & Long, by: Phil Hickey, and Killough, Ford & Hunter, by: Robert M. Ford, for appellee." ], "corrections": "", "head_matter": "SYNERGY GAS CORPORATION v. Ida LINDSEY\n92-598\n843 S.W.2d 825\nSupreme Court of Arkansas\nOpinion delivered December 7, 1992\nRieves & Mayton, by: William J. Stanley, for appellant.\nButler Hickey & Long, by: Phil Hickey, and Killough, Ford & Hunter, by: Robert M. Ford, for appellee." }, "file_name": "0265-01", "first_page_order": 289, "last_page_order": 296 }