State Auto Property and Casual v. Sherry Matty , 438 F. App'x 820 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
AUG 19, 2011
No. 11-10419 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:08-cv-00098-CDL
STATE AUTO PROPERTY AND
CASUALTY COMPANY,
Plaintiff - Appellant,
versus
SHERRY MATTY,
individually and as surviving spouse
of Matthew Scott Matty, deceased,
JEFFREY MICHAEL DAVIS,
FRANK GRIFFIN,
KAREN GRIFFIN,
RACHEL GRIFFIN,
RONALD E. MATTY,
Executor of the estate of Matthew
Scott Matty, deceased,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 19, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
State Auto Property and Casualty Company appeals the judgment in favor
of Sherry and Ronald Matty, Jeffrey Michael Davis, and Frank, Karen, and Rachel
Griffin. State Auto filed a complaint that requested a judgment declaring that an
incident in which its insured, Rachel Griffin, struck bicyclists Matthew Matty and
Jeffrey Davis, constituted one “accident” under Rachel’s automobile liability
insurance policy for which State Auto had to pay a single limit of liability of
$100,000. At trial, the jury found that Rachel had two “accidents” for which State
Auto had to pay $200,000. State Auto challenges the denial of its motion for
summary judgment and its motion for a new trial and for judgment as a matter of
law. State Auto also argues, for the first time on appeal, about an alleged violation
of Federal Rule of Evidence 411. We affirm.
State Auto cannot appeal the denial of its pretrial motion for a summary
judgment after a trial and judgment on the merits. Ortiz v. Jordan, 131 S. Ct. 884,
888–89 (2011); accord Lind v. United Parcel Svc., 254 F.3d 1281, 1286 (11th Cir.
2001). At trial, a party must challenge the evidence by moving for judgment as a
matter of law. Fed. R. Civ. P. 50(b). Because State Auto complied with that
procedure, we review the denial of that motion.
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State Auto argues that it was entitled to judgment as a matter of law because
there was no evidence from which a reasonable jury could find that Rachel had
two accidents, but we disagree. The defendants submitted testimony from an
investigator to establish that “after the cause of the initial collision, [Rachel]
regained control of the vehicle before [the] subsequent collision, so that it [could]
be said there was a second intervening cause and therefore a second accident,”
State Auto Prop. and Cas. Co. v. Matty, 286 Ga. 611, 614, 690 S.E.2d 614, 617
(2010). The investigator testified that two wheels of Rachel’s vehicle moved onto
the shoulder of the road before it struck Matty, but Rachel made a “steering input”
or a “correction” that redirected the vehicle from a path “off the roadway and
down an embankment” back onto the road. Although Rachel had told the
investigator that she “blacked out” before the collisions, the investigator opined
that either “the feel of the road or the sound of the impact” or “the feel of the
impact . . . caused [Rachel] to wake back up” and she had been “conscious and
brought her vehicle back onto the road.” The district court did not err when it
denied the motion of State Auto for a judgment as a matter of law.
The district court also did not abuse its discretion when it denied the motion
of State Auto for a new trial. The evidence, when reviewed in a light most
favorable to the defendants, Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278, 1287
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(11th Cir. 2011), supports the jury’s verdict. Rachel testified that she saw and
heard a person on her windshield, which is consistent with the opinion of the
investigator that Rachel either was conscious or regained consciousness after her
vehicle struck Matty and that Rachel redirected her vehicle to the road. This
evidence supports the finding of the jury that Rachel “regained control” of her
vehicle before it struck Davis.
State Auto waived its argument about an alleged violation of Federal Rule
of Evidence 411. State Auto argues that the defendants during opening statements
referenced the specific limits of Rachel’s insurance policy and the district court
admitted into evidence an unredacted copy of that policy, but State Auto failed to
object to the remarks in the opening statement and later agreed to admission of the
insurance policy. Even if State Auto had preserved its argument, it would fail.
Although “[e]vidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully,” Fed. R. Evid. 411, the only issue at trial was whether Rachel had
regained control of her vehicle before it struck Davis, not whether Rachel had
acted negligently.
We AFFIRM the judgment of the district court.
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