{ "id": 11916513, "name": "MINNIE A. CARRIER, Plaintiff v. CLYDE DARRICK STARNES, Defendant", "name_abbreviation": "Carrier v. Starnes", "decision_date": "1995-11-07", "docket_number": "No. COA94-1361", "first_page": "513", "last_page": "520", "citations": [ { "type": "official", "cite": "120 N.C. App. 513" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "4 ALR2d 761", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "145 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "320-21" }, { "page": "319", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "266 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559597 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/266/0064-01" ] }, { "cite": "367 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. 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App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520822 ], "year": 1990, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0001-01" ] }, { "cite": "304 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706442, 4707563, 4708240, 4706481, 4705500 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0678-01", "/nc/308/0678-04", "/nc/308/0678-05", "/nc/308/0678-02", "/nc/308/0678-03" ] }, { "cite": "301 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "448" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521368 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "379-80" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0365-01" ] }, { "cite": "119 S.E. 823", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "186 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653834 ], "year": 1923, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/186/0441-01" ] }, { "cite": "364 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "443" }, { "page": "443" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358752 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "610" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0609-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-279.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(b)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 851, "char_count": 17483, "ocr_confidence": 0.756, "pagerank": { "raw": 3.192554366170793e-07, "percentile": 0.8652469699970925 }, "sha256": "3c0d6916f9c21b96a89dabc71b3e2e93e02200eb42b2a41d76ba016adcdf5a03", "simhash": "1:879185e22b9508d9", "word_count": 2774 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "MINNIE A. CARRIER, Plaintiff v. CLYDE DARRICK STARNES, Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nPlaintiff filed suit to recover damages allegedly caused when defendant\u2019s automobile hit the automobile in which plaintiff was riding. Defendant offered into evidence a videotape of plaintiff taken by an investigator hired by defendant\u2019s insurance carrier. The trial court permitted plaintiff to cross-examine the investigator as to his employment by the insurance carrier. Defendant argues on appeal that this cross-examination was improper. We find the cross-examination by plaintiff was directed at the issue of witness bias, not the independent fact of liability insurance, and we find no error. The facts and procedural history follow.\nThe plaintiff, Minnie A. Carrier, accepted a ride home from work in a car driven by Wanda Tuttle on 14 August 1991. During the ride, rain was falling and the roads were wet. Ms. Tuttle arrived at an intersection, slowed down, and began to turn right. Almost simultaneously, defendant Clyde Darrick Starnes rounded a slight curve in the road and saw Ms. Tuttle\u2019s stationary car. He could not stop to avoid a collision. Ms. Carrier sued Mr. Starnes in tort, seeking damages for personal injuries sustained in the accident. Ms. Carrier alleged injuries to her back, neck and particularly her right arm and hand. Integon General Insurance Corporation (Integon), provider of under-insured motorist coverage to Ms. Carrier, participated in the case as an unnamed defendant pursuant to N.C. Gen. Stat. \u00a7 20-279.21(b)(4) (1993). Nationwide Insurance Company (Nationwide) was Mr. Starnes\u2019 primary liability insurance carrier.\nAt trial, Mr. Starnes and Integon filed motions in limine, requesting \u201cthat all witnesses in this action be ordered not to disclose that [a] videotape [of Ms. Carrier] was taken by an individual hired by the insurance carrier\u201d and \u201cthat plaintiff\u2019s attorney be ordered not to ask any witness to divulge who hired the individual that took the videotape.\u201d Plaintiff argued at trial that such questions were relevant to show the bias of the witness and financial interest between the maker of the tape, a private investigator, and Nationwide. The trial court allowed the motion in part, informing plaintiff that he could inquire of the witness who hired him. The trial court instructed plaintiff to apply to the court before making inquiries regarding insurance.\nThe defendant introduced a videotape of the plaintiff taken by a private investigator, Mr. Kenneth Holmes. Mr. Holmes had been hired by Nationwide for the express purpose of assisting the defendant\u2019s case. Mr. Holmes\u2019 duties were to watch the plaintiff and videotape her actions. Mr. Holmes was paid $40.00 per hour for his surveillance, and was paid at the same rate for his services at trial.\nIn his testimony on direct examination, Mr. Holmes described his personal observations of plaintiff\u2019s activities, such as mowing the lawn, pulling weeds, and opening an automobile door. Mr. Holmes stated that he paid \u201cparticular attention to those areas\u201d of Ms. Carrier\u2019s body that were the subject of plaintiff\u2019s complaint. After Mr. Holmes\u2019 testimony on direct examination, the videotape was received into evidence. The videotape was silent, with no conversation.\nDuring cross-examination, Mr. Holmes stated: \u201c[T]here are things of course that I observed that aren\u2019t depicted on the videotape . . . .\u201d Later during cross-examination, the plaintiff broached the subject of insurance with Mr. Holmes, inquiring about his financial relationship with Nationwide. The defense objected, and there was a colloquy at the bench. The trial court permitted the plaintiff to elicit evidence concerning private investigator Holmes\u2019 financial arrangement with Nationwide. Specifically, plaintiff was allowed to question Mr. Holmes\u2019 past and future involvement with Nationwide, the surveillance instructions given Mr. Holmes by the company, and Mr. Holmes\u2019 compensation for testifying on Nationwide\u2019s behalf. Defendant objected to this line of questioning. The trial court overruled the objections. The defendant then moved for a mistrial on grounds that \u201cincompetent and prejudicial insurance information had been admitted.\u201d The court denied the motion for mistrial. In its charge, the court instructed the jury to consider insurance only as it related to the bias or prejudice of Mr. Holmes and his financial arrangement with Nationwide. The jury returned a verdict for plaintiff for $50,000.00 as compensatory damages. Defendant appeals to this Court.\nDefendant first argues the trial court erred by allowing plaintiff to cross-examine Mr. Holmes about Nationwide\u2019s hiring Mr. Holmes to do the videotape. We disagree. Generally, evidence that a person possesses liability insurance is not admissible to show that a person \u201cacted negligently or otherwise wrongfully.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 411 (1992); see Smith v. Starnes, 88 N.C. App. 609, 610, 364 S.E.2d 442, 443 (1988). However, Rule 411 is not an absolute bar to the admission of liability insurance as competent evidence. Instead, Rule 411 provides for the admission of evidence concerning insurance when \u201coffered for another purpose, such as proof of agency, ownership, control, or bias or prejudice of a witness.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 411 (emphasis added).\nThe enumerated list of exceptions to Rule 411 is non-exclusive, as Rule 411 merely bars admission of insurance evidence as an independent fact, i.e., solely on the issue of negligent or wrongful conduct. Id.] 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 88 (3d ed. 1988). The Rule 411 bar against insurance evidence does not come into play if the evidence is offered to achieve a collateral purpose. Smith, 88 N.C. App. at 610, 364 S.E.2d at 443. So long as the proponent of the insurance evidence acts in good faith, she may raise the issue of liability coverage on bias or prejudice grounds, \u201cif it reasonably appears that a witness has such an interest that it would legally affect the value of his testimony.\u201d Bryant v. Welch Furniture Co., 186 N.C. 441, 445, 119 S.E. 823, 825 (1923); see also Shields v. Nationwide Mut. Fire Ins. Co., 61 N.C. App. 365, 379-80, 301 S.E.2d 439, 448 (1983), disc. review denied, 308 N.C. 678, 304 S.E.2d 759 (1983), where we held that evidence of liability insurance is admissible to show bias or financial interest of witness.\nIn Johnson v. Skinner, 99 N.C. App. 1, 14, 392 S.E.2d 634, 641, disc. review denied, 327 N.C. 429, 395 S.E.2d 680 (1990), evidence of insurance coverage was allowed under a \u201cmotive\u201d exception to Rule 411. There, an automobile dealership had permitted an employee to operate a car with dealer license tags, because the employee\u2019s liability insurance had lapsed. By using an automobile dealer tag, the employee defendant attempted to gain coverage under the dealer\u2019s liability insurance. The employee negligently collided with another car, causing injury. Id. at 13-14, 392 S.E.2d at 635.\nAt trial, the Johnson plaintiff raised \u201cspecific questions relating to insurance in general and whether a particular vehicle was insured.\u201d Id. at 14, 392 S.E.2d at 641. The trial court allowed the insurance questions, over defendant\u2019s objection, holding the evidence was \u201cnot offered to demonstrate the cause of the accident or to suggest the relative wealth of the defendants.\u201d Id. Rather, the insurance evidence was allowed, because it illuminated the motive behind the defendant\u2019s improper use of an automobile dealer\u2019s tag. Id. In addition to motive, the trial court also found that insurance coverage was admissible to demonstrate the car dealership\u2019s knowledge of the employee\u2019s motive in using the tag, and to assess the foreseeability of an accident arising out of the employee\u2019s use of the tag. Id. at 14, 392 S.E.2d at 641-42. On appeal, this Court found no error in the trial court\u2019s decision to allow insurance questions pursuant to Rule 411. Id. at 15, 392 S.E.2d at 642.\nThe Johnson Court\u2019s analysis is applicable to the case at bar. Factually, both cases concern automobile-related negligence. More importantly, both involve the proper application of the Rule 411 exceptions concerning admission of insurance coverage as evidence. Where the Johnson Court\u2019s analysis turns on motive as the means for admission under Rule 411, the trial court in the instant case allowed the insurance evidence under a bias theory. In both instances, evidence of insurance coverage was not used as an independent fact.\nDefendant argues there is no proper purpose by which insurance evidence should have gained admission in the instant matter. He contends plaintiff\u2019s cross-examination was nothing but a manipulation of Rule 411 designed to put the existence of insurance coverage before the jury. We do not agree.\nDefendant\u2019s argument is premised upon a theory that bias is not a legitimate issue with regard to private investigator Holmes\u2019 testimony. Defendant describes the purpose of Mr. Holmes\u2019 testimony as \u201cmerely to authenticate and identify the videotape of the Plaintiff.\u201d Moreover, defendant asserts Mr. Holmes did not testify substantively on contents of the videotape, or his personal observations of plaintiffs activities. Defendant\u2019s argument is not supported by the record. In this case Mr. Holmes did much more than merely authenticate a videotape of the plaintiff. As the record demonstrates, Mr. Holmes\u2019 testimony went beyond the bare particulars necessary to lay a proper foundation for admission of the videotape evidence. Much of Mr. Holmes\u2019 testimony was in the nature of eyewitness observation. For example, Mr. Holmes testified on direct examination that he had paid particular attention to plaintiff\u2019s use of her right hand, \u201cto see if there was any hindrance in movement or impairment or avoidance of using\u201d the hand. Mr. Holmes noted on direct examination that he observed the plaintiff using \u201cher right hand to pull [the lawnmower] backwards.\u201d Mr. Holmes also responded negatively to the question of whether the plaintiff had \u201cany difficulty in using the right hand.\u201d\nMr. Holmes\u2019 statements have the character of substantive testimony. Mr. Holmes described the actions of plaintiff he personally observed. His testimony took on the role defendant claimed the videotape was to perform. Defendant cannot contend the information conveyed by Mr. Holmes is purely foundational. To the contrary, Mr. Holmes\u2019 testimony adds to the information purportedly on the videotape. Mr. Holmes\u2019 testimony was not limited to those facts necessary for authentication. Instead, his testimony became substantive evidence on the ultimate issue of negligence, evidence the plaintiff could rightfully challenge through cross-examination.\nIt is settled law that a party may address the bias of a witness offering substantive testimony. State v. Wilson, 269 N.C. 297, 299, 152 S.E.2d 223, 224-25 (1967); State v. Rowell, 244 N.C. 280, 281, 93 S.E.2d 201-02 (1956). The act of giving substantive testimony renders that testimony susceptible to cross-examination, as credibility is then at issue. N.C. Gen. Stat. \u00a7 8C-1, Rule 611; See also Star Mfg. Co. v. R.R., 222 N.C. 330, 332, 23 S.E.2d 32, 35-36 (1942).\nOnce Mr. Holmes rendered substantive testimony, he placed his own credibility at issue. Plaintiff had the right to inquire into Mr. Holmes\u2019 financial relationship with the insurance company as its paid investigator. A financial interest in the outcome of a case is a form of bias and a proper topic for cross-examination. \u201cThe fact of insurance can be relevant in a number of ways. For example, the witness may be an investigator or other hired individual employed by the insur-anee company. Cross-examination affords the usual means of revealing the relationship between the company and the witness.\u201d 1 E. Cleary, McCormick on Evidence, \u00a7 201 (4th ed. 1992).\nEven if Mr. Holmes\u2019 testimony had been limited to the facts necessary to authenticate the video, he would still be subject to cross-examination for bias. As the person operating the video camera, Mr. Holmes made choices about what actions of the plaintiff he would film, and which ones he would not. Mr. Holmes noted on cross-examination: \u201c[T]here are things of course that I observed that aren\u2019t depicted on the videotape, but the videotape is a fair and accurate reflection of most of what I observed.\u201d Such choices carry their own meaning. By consciously selecting what to film, Mr. Holmes implicitly made decisions as to which actions of the plaintiff were pertinent to the litigation. Nationwide informed Mr. Holmes as to the nature of plaintiff\u2019s injuries, and told him to \u201creport what her activity was.\u201d Choosing what to film reflects the assignment given Mr. Holmes by the insurance company to surveil the plaintiff for purposes of gathering evidence against her at trial. Perspective is the key to bias, and Mr. Holmes\u2019 perspective was that of an insurance company\u2019s investigator seeking evidence contrary to the plaintiff\u2019s claim of injury.\nWe also note that the trial court specifically instructed the jury on the narrow scope of the insurance information:\nNow evidence has been received tending to show that an insurance company in some manner is involved in this case. This evidence was offered for the limited purpose of showing the source of the information the private investigator witness received before conducting his surveillance of the plaintiff, and for the limited purpose of showing the prejudice or bias this witness may have.\nWe find the trial court did not abuse its discretion in admitting evidence of liability insurance for the limited purpose of demonstrating bias. Shields, 61 N.C. App. at 380, 301 S.E.2d at 448.\nAs for defendant\u2019s claim of unfair prejudice, we do not find that either admission of the insurance evidence or the instructions of the trial court confused the issues and recapitulated irrelevant evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1992). Whether evidence should be excluded as unduly prejudicial or confusing rests within the sound discretion of the trial court. Id.; Rowan Cty. Bd. of Educ. v. U.S.\nGypsum Co., 103 N.C. App. 288, 307, 407 S.E.2d 860, 870 (1991); State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). The trial court\u2019s ruling in this regard may be reversed only for an abuse of discretion that \u201clacked any basis in reason,\u201d Judkins v. Judkins, 113 N.C. App. 734, 740, 441 S.E.2d 139, 142, disc. review denied, 336 N.C. 781, 447 S.E.2d 424 (1994), or if it \u201cwas so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Jones, 89 N.C. App. 584, 594, 367 S.E.2d 139, 145 (1988). As the insurance evidence was proper under Rule 411, and an appropriate limiting instruction was granted, we find the trial court\u2019s rulings were neither capricious nor ill-considered.\nIn his second argument, defendant contends that admission of the insurance evidence required the court to grant defendant\u2019s motion for mistrial. Defendant cites Fincher v. Rhyne, 266 N.C. 64, 145 S.E.2d 316 (1965), for the proposition \u201cevidence or mention of insurance is not to be permitted.\u201d Id. at 68-69, 145 S.E.2d at 320-21. Defendant\u2019s reliance on Fincher is misplaced. Fincher merely restates Rule 411\u2019s general prohibition: \u201cWhere testimony is given, or reference is made, indicating directly and as an independent fact that defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor aptly made, withdraw a juror and order a mistrial.\u201d Id. at 69, 145 S.E.2d at 319 (citations omitted). In the instant case, the insurance evidence was not used as an independent fact, and therefore no consideration of a mistrial was needed.\nIn conclusion, we find no error in the trial court\u2019s decision to permit plaintiff to cross-examine defendant\u2019s videotape witness for the limited purpose of demonstrating bias.\nNo error.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Robert B. Byrd, Lawrence D. McMahon, Jr., and Sam J. Ervin, IV, for plaintiff appellee.", "Patrick, Harper & Dixon, by Gary F. Young, for defendant appellant." ], "corrections": "", "head_matter": "MINNIE A. CARRIER, Plaintiff v. CLYDE DARRICK STARNES, Defendant\nNo. COA94-1361\n(Filed 7 November 1995)\nEvidence and Witnesses \u00a7 148 (NCI4th)\u2014 automobile personal injury action \u2014 investigator hired by insurance company\u2014 evidence of insurance admitted to show bias\nIn an action to recover for personal injuries sustained in an automobile accident, the trial court did not err in allowing plaintiff to cross-examine a witness about defendant\u2019s insurer\u2019s hiring him to make a secret videotape of plaintiff, though evidence that a person possesses liability insurance generally is not admissible to show that a person acted negligently or otherwise wrongfully, since the trial court in this case allowed the insurance evidence under a bias theory which was proper because the witness\u2019s testimony went beyond the bare particulars necessary to lay a proper foundation for admission of the videotape evidence, but was in the nature of eyewitness observation, and became substantive evidence on the ultimate issue of negligence. N.C.G.S. \u00a7 8C-1, Rule 411.\nAm Jur 2d, Evidence \u00a7 495.\nAdmissibility of evidence, and propriety and effect of questions, statements, comments, etc., tending to show that defendant in personal injury or death actions carries liability insurance. 4 ALR2d 761.\nAppeal by defendant from judgment entered 16 June 1994 by Judge Charles Lamm in Burke County Superior Court. Heard in the Court of Appeals 22 August 1995.\nByrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Robert B. Byrd, Lawrence D. McMahon, Jr., and Sam J. Ervin, IV, for plaintiff appellee.\nPatrick, Harper & Dixon, by Gary F. Young, for defendant appellant." }, "file_name": "0513-01", "first_page_order": 547, "last_page_order": 554 }