{
  "id": 1914608,
  "name": "Clara Faye BABBITT v. QUIK-WAY LUBE AND TIRE, INC.",
  "name_abbreviation": "Babbitt v. Quik-Way Lube & Tire, Inc.",
  "decision_date": "1993-05-17",
  "docket_number": "92-1355",
  "first_page": "207",
  "last_page": "211",
  "citations": [
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      "cite": "313 Ark. 207"
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      "cite": "853 S.W.2d 273"
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      "year": 1989,
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    {
      "cite": "308 Ark. 60",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1904333
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      "weight": 3,
      "year": 1992,
      "opinion_index": 0,
      "case_paths": [
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    {
      "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"
      ]
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  "last_updated": "2023-07-14T19:14:05.799320+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Clara Faye BABBITT v. QUIK-WAY LUBE AND TIRE, INC."
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nAppellant Clara Faye Babbitt filed this personal injury action against appellee Quik-Way Lube and Tire, Inc., alleging that, as a passenger, she sustained injuries as a result of her husband\u2019s car falling into a drainage hole when he was driving into a wash bay on the premises. The jury returned a verdict in favor of Quik-Way. Ms. Babbitt brings this appeal wherein she claims Quik-Way\u2019s attorney violated the collateral source rule when at trial he elicited evidence concerning her medical insurance coverage. Babbitt further argues the trial court abused its discretion by permitting such questioning and in refusing her motion for mistrial.\nIn presenting her case-in-chief, Ms. Babbitt, in response to her attorney\u2019s direct examination, stated that she had not seen a doctor before paying her attorney a visit. She further explained she could not afford a doctor. The exact colloquy follows:\nQ: All right. Now Ms. Babbitt, would you tell us please, when did you have the first occasion to go see a doctor. Was it at my insistence when you came to my office, or before?\nA: When I came to your office I went to the doctor.\nQ: Okay. And you had not seen a doctor prior to coming to my office, is that correct?\nA: Yes.\nQ: Why?\nA: I didn\u2019t have the money. They want their money up front when you go to the doctor\u2019s. I didn\u2019t have the money then.\nFollowing the foregoing, Ms. Babbitt\u2019s attorney introduced Babbitt\u2019s medical bills, most of which reflected payment by her husband\u2019s employer\u2019s insurance carrier.\nOn cross examination, Ms. Babbitt was asked if she had told the jury that she had delayed seeing a doctor because she could not afford it. She replied, \u201cThat\u2019s right.\u201d Other pertinent colloquy follows:\nQ: Is that just as true as all the rest of your testimony?\nA: I couldn\u2019t afford to pay an office call.\nQ: Ma\u2019am, your husband has worked for Reynolds Metals Company for 27 years?\nA: Yes.\nQ: You have medical insurance provided through Reynolds Metals Company, and have had for 27 years, haven\u2019t you?\nA: Yes. But they don\u2019t pay office calls though.\nQ: How much of these bills that you\u2019ve submitted to this jury have they paid, or have they paid any yet?\nA: I\u2019m not familiar with it.\nQ: You\u2019ve turned in claims, haven\u2019t you?\nA: I haven\u2019t, no.\nQ: Well, tell me this. When you went to Saline Memorial Hospital, are you telling the jury that they didn\u2019t ask for an insurance card?\nA: Well, yeah, I\u2019m sure they did.\nAt the colloquy\u2019s end above, Babbitt\u2019s attorney moved for a mistrial, contending the issue of insurance should not have been injected into evidence, and Quik-Way\u2019s attorney responded that Ms. Babbitt had \u201copened the door.\u201d The trial court denied the mistrial motion. We affirm.\nOur recent case of Younts v. Balder Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992), controls. There, during direct examination, counsel asked Younts whether he had been able to reopen his business after the fire, and Younts said, \u201cHaven\u2019t been able to afford it.\u201d Defense counsel argued during an in-camera hearing that Younts\u2019 testimony opened the door for counsel to show Younts had received an insurance settlement. The trial court agreed, and we affirmed on appeal.,In doing so, we cited the general rule, that it is improper for either party to introduce or elicit evidence of the other party\u2019s insurance coverage and stated this principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant.\nWe further recognized in Younts, that, when a party testifies about his or her financial condition in a false or misleading manner, he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule. See also Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). In upholding the trial court\u2019s rule to allow defense counsel to inquire of Younts\u2019 insurance settlement, we stated as follows:\nIt is important to recognize that Younts\u2019 testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue. The dissenting opinion seems to conclude as a matter of fact that Younts was telling the truth or that he answered in good faith. We have no way to determine that. Appellate courts do not make those decisions. The important point is that Younts\u2019 response that he could not afford to rebuild could very well have been misleading to the jury. In Peters v. Pierce, supra, and in York v. Young, supra, we held that in such a situation the collateral source rule does not prevent introduction of evidence of insurance.\nIn the present case, Babbitt\u2019s counsel invited Babbitt to explain why she saw him before having seen a doctor. The purpose of such questioning was to give Babbitt an opportunity say, \u201cI didn\u2019t have the money... [t]hey want their money up front when you go to the doctor... I didn\u2019t have the money then.\u201d As was the situation in Younts, Babbitt\u2019s counsel\u2019s question and Babbitt\u2019s response had no relevance to any issue in the case. Instead, Babbitt\u2019s testimony that she could not go to a doctor for treatment could have misled the jury. Under these facts, we are unable to say the trial court abused its discretion in permitting Quik-Way\u2019s counsel to elicit information that afforded the jury a complete and full picture of Babbitt\u2019s financial situation.\nIn conclusion, we mention Babbitt\u2019s remaining contentions. She first argues that the trial court erred in allowing QuikWay\u2019s counsel to elicit information concerning Babbitt\u2019s financial situation and insurance coverage before the jury without first notifying the trial court and opposing counsel. This argument was not presented below and we will not permit arguments to be raised for the first time on appeal. Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Similarly, Babbitt argues that before defense counsel can invoke the \u201copen the door\u201d theory to introduce otherwise inadmissible evidence, counsel must first lay a foundation, in camera, that the witness testified falsely or in a misleading manner. Again, this particular argument was not presented to the trial court for determination, and thus, we will not entertain it on appeal. Id.\nFor the reasons stated hereinabove, we affirm.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Jerry W. Stewart, for appellant.",
      "Baxter, Wallace, Jensen & McCallister, by: Ray Baxter and Karen Virginia Wallace, for appellee."
    ],
    "corrections": "",
    "head_matter": "Clara Faye BABBITT v. QUIK-WAY LUBE AND TIRE, INC.\n92-1355\n853 S.W.2d 273\nSupreme Court of Arkansas\nOpinion delivered May 17, 1993\nJerry W. Stewart, for appellant.\nBaxter, Wallace, Jensen & McCallister, by: Ray Baxter and Karen Virginia Wallace, for appellee."
  },
  "file_name": "0207-01",
  "first_page_order": 237,
  "last_page_order": 241
}