                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1603
                            Filed February 10, 2016


IDORENYIN SALAMI,
     Plaintiff-Appellant,

vs.

VON MAUR, INC. and SARA WHITLOCK,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Idorenyin Salami appeals from the district court’s denial of her motion for

mistrial. AFFIRMED.




      Brooke Timmer and Whitney Judkins of Fiedler & Timmer, P.L.L.C.,

Urbandale, for appellant.

      Frank Harty, Debra Hulett, and Ryan W. Leemkuil of Nymaster Goode,

P.C., Des Moines, for appellees.



      Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

      Idorenyin Salami appeals from the district court’s denial of her motion for

mistrial, contending defense counsel improperly injected the topic of liability

insurance into the proceedings and the district court’s belated curative instruction

was not a sufficient remedy. Finding no abuse of discretion, we affirm.

I. Background Facts and Proceedings.

      Salami brought a race discrimination claim against her employer, Von

Maur, and her supervisor, Sara Whitlock. During voir dire, a potential juror, Mr.

Reynolds, stated that he was in the insurance business and that his firm handled

employee benefit insurance for Von Maur. Mr. Reynolds noted that his company

did not provide “employee practice liability” coverage for Von Maur, but he

viewed the situation as a conflict of interest. Mr. Reynolds was excused from jury

service.

      Another potential juror, Mr. Rudd, explained that his company had been

involved in an age discrimination lawsuit. According to Mr. Rudd, his company

had “employment practice insurance.” He continued, “That the thing was settled

for far less than what I would consider a nominal amount of money because

there was no basis to the darn thing at all. And had we not had the insurance,

I’m convinced to this day it would have never proceeded.” Salami’s counsel

asked Mr. Rudd whether it would be “difficult for you to find against Von Maur

because you may kind of consider yourself in the same boat as them.” He

responded, “That’s a possibility.”      Salami’s counsel continued questioning

prospective jurors.
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        Sometime later, Von Maur’s counsel asked Mr. Rudd if he knew Mr.

Reynolds. The following then occurred:

                 JUROR RUDD: Yeah, I did actually.
                 MR. HARTY: I thought you might. I don’t know, several of
        you probably. There’s a guy that’s—maybe they don’t watch the
        fundraising, you know. You know him. He mentioned something
        that you picked up on. There’s no—there’s no employment action
        liability insurance involved in this case.
                 JUROR RUDD: Yes. I just assumed there was because he
        mentioned it.
                 MR. HARTY: He said he didn’t write it.
                 JUROR RUDD: He didn’t write it, and I just—
                 MR. HARTY: I wanted to make sure.
                 JUROR RUDD: The major person that writes our insurance
        does not write the policy so I just—
                 MR. HARTY: So I just want you to know that.
                 JUROR RUDD: Okay.
                 MS. TIMMER: Objection.
                 MR. HARTY: And I want to ask you—
                 THE COURT: Hold on a second. There’s an objection.
                 MS. TIMMER: I think it’s improper argument during voir dire
        to discuss the status of insurance.
                 THE COURT: Sustained.
                 MR. HARTY: Do you have any problem, Mr. Rudd, with the
        fact that some of you are going to have to spend over a week and
        that we’re going to be tying up this courtroom? And certainly there
        are resources because my client wants their day in court. Sara
        Whitlock and Von Maur, they want to say, “We’ve been accused of
        this. We didn’t do it.” Do you have any issue with that that we’re
        here?
                 JUROR RUDD: No. That we’re here for that period of time?
        Yeah, actually I do.
                 MR. HARTY: You think it should be done sooner?
                 JUROR RUDD: Yeah. I think. Again, I’m going to tell you
        I’m surprised that it’s even reached the jury stage. And now I kind
        of understand why.

The parties continued with jury selection. Salami’s counsel ultimately struck Mr.

Rudd.

        After jury selection was completed, Salami’s counsel moved for a mistrial

based on defense counsel’s statement regarding insurance. The district court
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invited the parties to brief the issue and informed them it would rule on the

motion the following morning.

       The next morning (May 20, 2014), the court issued a ruling denying the

motion for mistrial. While recognizing the general rule that evidence of insurance

coverage is inadmissible, the court’s ruling cited several Iowa cases stating that

the mention of insurance does not necessarily entitle a party to a mistrial.

Rather, the moving party must show prejudice, and the district court found

Salami had not shown prejudice.         The court noted the jury would not be

concerned with Von Maur’s ability to pay a judgment.

       Salami’s counsel did not propose an immediate curative instruction,

stating a curative instruction would be inadequate and would unnecessarily “bring

the jury back” to the mention of insurance.

       Following a six-day jury trial, Salami did request an instruction concerning

insurance. The district court informed the jury in Instruction 21:

       In deciding whether or not Defendants are liable in determining
       what amounts, if any, to award in damages, you must not consider
       whether or not Defendants have insurance that might pay all or part
       of your verdict. Whether or not a party has liability insurance has
       no relevance.

The jury returned a verdict in favor of Von Maur and Whitlock.

       Salami filed a motion for new trial, arguing that the district court abused its

discretion in not ordering a mistrial based on defense counsel’s mention of

insurance during voir dire. The district court denied the motion for a new trial,

writing:

             There is no question that defense counsel could have
       avoided the situation that gave rise to the mistrial. His questioning
       of the jury occurred in the middle of the afternoon after the
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      insurance question first arose before the lunch break. If he had
      concerns with the statements made by Mr. Reynolds and Mr. Rudd
      regarding insurance, he had ample opportunity to raise it with the
      court to determine the best means to resolve the concerns. It was
      not proper to unilaterally offer substantive information regarding his
      client’s insurance status in violation of Iowa R[ule] Evidence 5.411.
               Notwithstanding the above, as stated in the ruling on the
      motion for mistrial, the standard is whether the moving party has
      been prejudiced. For the reasons previously stated in the ruling on
      motion for mistrial, the court finds plaintiff was not prejudiced. In
      fact, further proceedings of the trial support the original decision to
      deny the mistrial. Plaintiff requested a curative instruction that was
      adopted as modified by the court. The jury found in favor of
      defendants on liability, so there is no issue similar to Morris in
      which a low damage award supported the plaintiff’s claim of
      prejudice. Plaintiff makes the claim that the jury may have been left
      with an impression that the case was meritless, but that claim is
      speculative and not based on any evidence or real basis for belief.
      Further, the claim is untenable when considering the length of the
      trial, the amount and substance of the evidence presented, and the
      quality of the attorneys presenting the case. The jury did not find in
      plaintiff’s favor, but there is no indication they considered the claims
      to be baseless. Finally, Mr. Rudd was not picked for the jury, so
      there was no danger that he might re-raise any issues or
      implications arising from insurance, and there is no reason to
      believe that any of the other jurors broached the topic.

      Salalmi appeals.

II. Scope and Standard of Review.

      Appellate review of rulings on motions for new trial depend upon the

grounds for new trial asserted in the motion. Hansen v. Cent. Iowa Hosp. Corp.,

686 N.W.2d 476, 480 (Iowa 2004) (internal citations omitted). The district court

has broad discretion in ruling on a motion for new trial. Loehr v. Mettille, 806

N.W.2d 270, 277 (Iowa 2011). A motion for new trial based on discretionary

grounds, such as misconduct by the prevailing party, is reviewed for an abuse of

discretion. Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012). “A court abuses

its discretion when its ruling is based on grounds that are unreasonable or
                                          6

untenable.” In re Trust No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).

The “grounds for a ruling are unreasonable or untenable when they are based on

an erroneous application of the law.”         Id.   A new trial is warranted when “a

different result would have been probable in the absence of misconduct.” Loehr,

806 N.W.2d at 277.

III. Discussion.

      Much of the Salami’s appellate argument is premised upon Iowa Rule of

Evidence 5.411, which states, “Evidence that a person was or was not insured

against liability is not admissible upon the issue of whether the person acted

negligently or otherwise wrongfully.” Our supreme court has stated,

              The court has recognized three reasons for inadmissibility of
      evidence of the existence of insurance. First, the evidence is
      ordinarily irrelevant to any issue in the case. Second, it tends to
      influence jurors to bring in a verdict against a defendant on
      insufficient evidence. Third, it causes jurors to bring in a larger
      verdict than they would if they believed the defendant would be
      required to pay it. Mihalovich v. Appanoose Cty., 217 N.W.2d 564,
      567 (Iowa 1974). These reasons show that the jury is to decide a
      case as if the defendant were not insured. The contention has
      been forcefully urged in another context that persons should not be
      denied property rights because they have purchased insurance
      rather than saved the funds which might otherwise have been spent
      on premiums. See Rudolph v. Iowa Methodist Med. Ctr., 293
      N.W.2d 550, 567 (Iowa 1980) (Reynoldson, C. J., dissenting).

Laguna v. Prouty, 300 N.W.2d 98, 101 (Iowa 1981).

      From this premise, Salami argues we must presume she was prejudiced

by Von Maur’s counsel’s statements of a lack of insurance during jury selection,

and thus the district court abused its discretion in denying her motion for new

trial. We disagree for several reasons.

      First, we do not presume prejudice. The supreme court wrote,
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       We test the court’s denial of these motions [for mistrial and new
       trial] under an abuse of discretion standard. The query is whether
       the trial court clearly abused its discretion, that is, whether
       prejudice resulted from counsel’s mention of [the insurance
       adjuster] “Mr. King,” or whether a different result could have been
       probable but for the mention of his name. We give extremely
       broad, though not unlimited, discretion to a trial court on motions for
       mistrial and new trial. This is because we recognize the trial court
       is in a better position to appraise the situation in the context of the
       full trial.

Stover v. Lakeland Square Owners Ass’n, 434 N.W.2d 866, 873-84 (Iowa 1989)

(citations omitted); see also Strain v. Heinssen, 434 N.W.2d 640, 643 (Iowa

1989) (finding trial court “reasonably balanced the questions of relevancy,

probative value and prejudice implicated when the revelation of insurance

coverage is at issue”); Evans v. Howard R. Green Co., 231 N.W.2d 907, 914-15

(Iowa 1975) (stating that under Iowa common law it was “generally improper for

the subject of liability insurance to be raised in any way before the jury,” but

concluding the district court did not abuse its discretion in denying motion for

mistrial).

       We also observe the rule cited is a rule of evidence.           The general

definition of “evidence,” which is a standard jury instruction and which was given

to the jury in this case:

              Evidence is:
              1. Testimony in person or by deposition.
              2. Exhibits received by the court.
              3. Stipulations which are agreements between the attorneys.
              4. Any other matter admitted (e.g. answers to interrogatories,
       matters which judicial notice was taken, and etc.).
              Evidence may be direct or circumstantial. The weight to be
       given any evidence is for you to decide.
              Sometimes, during a trial, references are made to pre-trial
       statements and reports, witnesses’ depositions, or other
       miscellaneous items. Only those things formally offered and
       received by the court are available to you during your deliberations.
                                        8


      Documents or items read from or referred to which were not offered
      and received into evidence, are not available to you.
             The following are not evidence:
             1. Statements, arguments, questions and comments by the
      lawyers.
             2. Objections and rulings on objections.
             3. Any testimony I told you to disregard.
             4. Anything you saw or heard about this case outside the
      courtroom.

Iowa Civ. Jury Instr. 100.4 (emphasis added).        Counsel’s statements about

insurance during voir dire are not evidence and the jury was so instructed.

      Nonetheless, we acknowledge that the topic of insurance coverage is

generally irrelevant. See Iowa R. Evid. 5.411; Laguna, 300 N.W.2d at 101. And

to highlight that irrelevance, the Iowa courts have been repeatedly advised that a

jury should be instructed that whether a party has any kind of insurance has

“‘nothing whatsoever to do with the issues to be decided.’” Laguna, 300 N.W.2d

at 102 (quoting Price v. King, 122 N.W.2d 318, 323 (Iowa 1963)). The use of just

such an instruction was given here. As we have noted, the court instructed the

jury that whether or not a party has insurance “has no relevance” and could not

be considered. “Jurors are presumed to follow instructions.” State v. Sanford,

814 N.W.2d 611, 620 (Iowa 2012); see also Laguna, 300 N.W.2d at 102 (stating

that where a juror asked the court in the absence of other jurors what part

insurance would play in the jury’s decision and the court informed the juror

insurance had no bearing on the issue, the court does “not assume the jury

disregarded the court’s admonition”). Here, the jury asked no questions of the

court about insurance during the trial or the jury’s deliberations. Cf. Laguna, 300

N.W.2d at 102.
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       We note, too, that “the reasons for excluding evidence of the existence of

liability insurance” include the “knowledge of a defendant’s liability insurance may

‘influence jurors to bring in a verdict against a defendant on insufficient evidence

[and may] cause . . . jurors to bring in a larger verdict than they would if they

believed the defendant would be required to pay it.’” Mohammed v. Otoadese,

738 N.W.2d 628, 634-35 (Iowa 2007) (quoting Laguna, 300 N.W.2d at 101). As

stated in Laguna,

       the reasons for inadmissibility of evidence of lack of insurance are
       not the same. The only common reason is the irrelevance of the
       evidence to any issue in the case. Otherwise, when a jury is told
       the defendant is not insured, it is told nothing different from what it
       is required to assume if it did not know whether the defendant was
       insured.

300 N.W.2d at 101. Here, the jury heard only what it was to assume—that the

defendants were not insured. See Laguna, 300 N.W.2d at 102 (“One reason for

this conclusion [that the court did not err in denying a motion for new trial] is that

the court did admonish the jury in this case that it was not to consider the subject

of insurance in its deliberations.”). We do not have a situation where the jury was

misled by trial counsel’s statement. See id. 101.

       Finally, the jury did not award any damages to the plaintiff, which negates

the concern that knowledge of insurance or lack thereof affected the amount of

damages. See, e.g., id. (stating knowledge of a defendant’s liability insurance

may “influence jurors to bring in a verdict against a defendant on insufficient

evidence [and may] cause . . . jurors to bring in a larger verdict than they would if

they believed the defendant would be required to pay it”). If the jury, or even one

juror, determined there was no liability because Van Maur had no insurance to
                                        10


cover any damages, we would have to conclude the jury or juror clearly failed to

follow the jury instructions.    However, we have no basis to reach such a

conclusion absent speculation.

       “The rule is: ‘Before a new trial will be granted for misconduct in argument

it must appear prejudice resulted or a different result could have been probable

but for such misconduct.’” Id. at 102 (quoting Rasmussen v. Thilges, 174 N.W.2d

384, 391 (Iowa 1970)); see also Strain, 434 N.W.2d at 643) (finding trial court

“reasonably balanced the questions of relevancy, probative value and prejudice

implicated when the revelation of insurance coverage is at issue”); Evans, 231

N.W.2d at 914-15.

       Here, Salami has not established prejudice resulted. The subject was

discussed only briefly during jury selection. The prospective juror involved in the

discussion was struck by Salami.        The jury was instructed the attorney’s

statements were not evidence and they “must not consider whether or not”

insurance existed in reaching their verdict.    The trial court did not abuse its

discretion in denying the motions for mistrial and new trial. We therefore affirm.

       AFFIRMED.
