Cosner v. Napier , 249 Mont. 153 ( 1991 )

No. 91-075
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
MICHELE COSNER,
Plaintiff and Appellant,
v.
TODD NAPIER, d/b/a FLATHEAD
TRANSMISSION SPECIALIST,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Lei£ B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David L. Astle, Astle & Astle,
Kalispell, Montana
For Respondent:
Daniel W. Hileman, Murray & Kaufman, P.C.,
Kalispell, Montana
Submitted on Briefs: June 18, 1991
Decided: July 2, 1991
Filed:
Justice Terry N. Trieweiler &elivered the opinion of the Court.
Michele Cosner appeals from the judgment of the District Court
for the Eleventh Judicial District in Flathead County, denying
appellant's motion for new trial. We affirm the District Court.
The sole issue for our determination is whether the
plaintiff 's failure to object at trial to the defendant's reference
to liability insurance precludes a post-trial motion for a new
trial.
The plaintiff was injured at the defendant's place of business
when she tripped on an uneven cargo bay entrance. The plaintiff
dropped an automobile transmission she was carrying and sustained
injuries to her ankle.
Prior to trial, the defendant moved in limine to exclude any
testimony or evidence concerning the existence of insurance
coverage on behalf of the defendant. That motion was granted.
However, during his own examination, the defendant gave the
following testimony:
Q: Did you talk to her [plaintiff] about what happened?
A: Kind of. I didn't really get into it too much. But
I don't remember if I asked her, you know, what
happened or -- I think I asked -- Maybe I did ask
what happened or how she was. And I think I offered
-- told her, "Do you want my insurance man's phone
number?" She just kind of almost laughed and said,
"Just one of those things; don't worry about it.
I tripped."
On appeal, the plaintiff contends that the mention of
insurance was in violation of Rule 411, M.R.Evid., that it unfairly
prejudiced her case, and that t h e judgment should be vacated and
a new trial granted. However, the record shows that the plaintiff
made no objection to the above statement regarding insurance, nor
to statements made by defense counsel in closing which the
plaintiff claims inferred t h e existence of insurance.
This Court h a s consistently held that parties must make their
objections known to the trial court at the time the objectionable
conduct or evidence is introduced in order to preserve the issue
for purposes of appeal. Beil v. Mayer, 242 Mont. 204, 789 P.2d
1229 (1990); Z r r e r a v. ~ozemanProduction Credit Assn.,
innrnn 233
Mont. 156, 759 P.2d 166 (1988). A timely objection is also
required by Rule 103, M.R.Evid.
In Reno v. Erickstein, 209 Mont. 36, 679 P.2d 1204 (l984),
under circumstances similar to those in this case, we held that the
failure of plaintiff's counsel to make objections at the time
references were made by defense counsel regarding defendant's
supposed lack of insurance coverage, in violation of defendant's
own motion in limine, precluded review of the issue on appeal.
In Rasmussen v. Sibert, 153 Mont. 286, 295, 456 P.2d 835, 840,
the Court stated:
[D]efendantls failure to object or request corrective
action constituted a waiver of objection on this issue.
It cannot be urged for this first time upon motion for
a new trial following an adverse jury verdict. To hold
otherwise would not only put the trial court in error on
an issue which had not been presented to it for ruling,
but would permit a litigant to submit his case to the
jury for a possible verdict in his favor, and in the
event he was unsuccessful, would permit him a n o t h e r
d e t e r m i n a t i o n by another jury.
(Citations o m i t t e d . )
We conclude that the lower court properly denied the
plaintiffls motion for a new t r i a l , and the judgment of the
District Court is affirmed.
We Concur:
/
July 2, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
David L. Astle
ASTLE & ASTLE
705 Main St.
Kalispell, MT 59901
Daniel W. Hileman
ATTORNEY AT LAW
P,O. Box 728
Kalispell, MT 59903-0728
ED SMITH
C L E R K R THE SUPREME COURT