                        IN THE COURT OF APPEALS

                             AT KNOXVILLE             FILED
                                                      September 18, 1998

CYNTHIA SHANKS STROUD,        )    C/A NO. 03A01-9802-CV-00060 Jr.
                                                   Cecil Crowson,
                              )                       Appellate C ourt Clerk
          Plaintiff-Appellant,)
                              )
                              )
                              )
                              )
                              )    APPEAL AS OF RIGHT FROM THE
v.                            )    ANDERSON COUNTY CIRCUIT COURT
                              )
                              )
                              )
                              )
                              )
GREGORY NEIL SEATON,          )
                              )    HONORABLE WILLIAM E. LANTRIP,
          Defendant-Appellee. )    CHANCELLOR, By Interchange




For Appellant                          For Appellee

DAIL R. CANTRELL                       BRIAN H. TRAMMELL
Cantrell, Pratt & Varsalona            Kennerly, Montgomery & Finley, P.C.
Clinton, Tennessee                     Knoxville, Tennessee




                            O P I N IO N



AFFIRMED AND REMANDED                                            Susano, J.

                                   1
          This is a negligence action that arose out of a two-

vehicle collision.    The jury returned a verdict for the

defendant, Gregory Neil Seaton.       The plaintiff, Cynthia Shanks

Stroud, appealed.    She raises one issue:



          Whether the trial court erred in denying her
          motion for a new trial, which motion was
          predicated on the fact that the defendant
          testified at trial to a statement made by the
          plaintiff at the scene of the accident that
          “she had good insurance.”



We affirm.



          As pertinent to the issue before us, the transcript of

the defendant’s direct examination reflects the following:



          Q. Okay. Mr. Seaton, after the accident
          happened, tell the ladies and gentlemen of
          the jury what you did.

          A. I went over to her car, and -- which was
          not in the road, as was said earlier, because
          I walked over right at the doorway to make
          sure she was all right and ask her if she was
          injured. She said no. She proceeded to get
          out of the car. We was [sic] standing around
          and had small talk. She said she had good
          insurance. She apologized for the --

          MR. CANTRELL: Your Honor, I’m going to object
          to that.

          THE COURT: I’ll sustain. Ladies and
          gentlemen, as I previously instructed you,
          this case has absolutely nothing to do with
          insurance and whether she has good insurance,
          bad insurance or no insurance. And you’re to
          totally disregard that statement, and it
          plays no part in your deliberation. Can each
          of you assure me that you can follow my
          instruction that I’ve told you that you’re to
          treat that as if you had never heard it? If
          there’s anyone that’s got a problem when you
          get back in the jury room and you’re not able
          to put that out of your mind, I need to know

                                  2
            it right now. Can everybody assure me that
            you can follow my instruction and ignore that
            statement? All right.


(Emphasis added).     The plaintiff, who now seeks a reversal based

on this testimony, did not move for a mistrial.1



            The plaintiff contends that the defendant intentionally

interjected insurance into the trial.          She claims that the

defendant was put on notice during voir dire that insurance was

not to be mentioned before the jury.         She bases this on the fact

that one of the jurors on voir dire inquired as to whether the

plaintiff had insurance to cover her medical bills, whereupon the

trial judge admonished the jury that this was not an issue for

their consideration.2      She contends that “[k]nowing the jury’s

prejudice,3 the [defendant] chose to disregard the court’s

instruction, and bring this matter [of insurance] before the fact

finder.”



            The defendant makes a threefold response: first, that

the failure of the plaintiff to move for a mistrial constitutes a

waiver of any error; second, that the plaintiff’s statement at

the scene -- that “she had good insurance” -- was admissible “as

      1
       It is not entirely clear from the transcript whether the plaintiff
meant to communicate that her injuries were covered by her “good insurance” or
that any injuries the defendant suffered were covered by her liability
insurance. Since she “apologized,” we assume she meant the latter.
Regardless of what she meant, the trial court told the jury to disregard the
reference to insurance.
      2
       The plaintiff also argues that the defendant had a heightened sense
that insurance was not to be mentioned from the fact that his own counsel had
filed a motion in limine asking the trial court to prevent any mention before
the jury of the fact that the defendant was uninsured. However, neither the
motion nor an order entered pursuant to it is in the record, and thus this
alleged fact is not before us and will not be considered by us in reaching our
decision.
      3
       The reference to the “jury’s prejudice” apparently refers to the one
juror’s question about medical insurance.

                                      3
a party admission tending to show fault,” citing Rule 803(1.2),

Tenn.R.Evid.; and, finally, that the objected-to testimony did

not involve “a substantial right [that] more probably than not

affected the judgment or would result in prejudice to the

judicial process.”    See Rule 36(b) T.R.A.P.



          It is error for a witness or an attorney to mention --

in the presence of the jury -- liability insurance during the

trial of a motor vehicle, negligence case such as the one now

before us.    Lovin v. Stanley, 493 S.W.2d 725, 727-28 (Tenn.App.

1973).   See also Rule 411, Tenn.R.Evid.   Our cases have

emphasized that a party’s deliberate attempt to interject such

evidence, especially if persistently pursued, is more apt to lead

to reversal than is an inadvertent reference to insurance.     See,

e.g., Potts v. Leigh, 15 Tenn.App. 1, 5 (1931).    In any event, it

is clear from the cases that the issue of whether a reference to

insurance is egregious enough to warrant a new trial is a matter

that addresses itself to the sound discretion of the trial court,

and that such discretion will be disturbed on appeal “only in

exceptional cases.”    Klein v. Elliott, 436 S.W.2d 867, 880

(Tenn.App. 1968).     See also Prewitt-Spurr Mfg. Co. v. Woodall, 90

S.W.2d 623, 624 (Tenn. 1905).



             Generally speaking, the more modern cases recognize

that before the “liability insurance” error will warrant

reversal, there must be a showing that the injection of liability

insurance into the case was an “error involving a substantial

right [that] more probably than not affected the judgment or

would result in prejudice to the judicial process.”     Rule 36(b),


                                   4
T.R.A.P.      See, e.g., Terry v. Plateau Electric Cooperative, 825

S.W.2d 418, 422-23 (Tenn.App. 1991).            Some of the earlier cases

analyzed such an error in the context of the so-called “harmless

error” statute, last codified at T.C.A. § 27-1-117.4              See East

Tennessee Natural Gas Co. et al. v. Peltz, 270 S.W.2d 591, 609

(Tenn.App. 1954).



              It has been expressly held that a party should “move

for a mistrial as soon as evidence designed to so influence the

jury is offered or unintentionally gets before the jury.”

Logwood v. Nelson, 250 S.W.2d 582, 585 (Tenn.App. 1952).               See

Rule 36(a), T.R.A.P. (“Nothing in this rule shall be construed as

requiring relief be granted a party...who failed to take whatever

action was reasonably available to prevent or nullify the harmful

effect of an error.”)



              In the instant case, the plaintiff failed to move for a

mistrial when the defendant mentioned insurance.               The failure to

so move constitutes a waiver of the error.             See Spain v.

Connolly, 606 S.W.2d 540, 543-44 (Tenn.App. 1980).              In any event,

and even if such a motion had been made, we do not find that the

reference to insurance was a deliberate attempt on the part of

the defendant to improperly influence the jury in his favor.                 We

do agree with the plaintiff that the trial court’s comments

during voir dire constituted a clear message to the parties that

they should stay away from the issue of insurance; but this fact,

standing alone, does not convince us that the defendant



     4
         Repealed by Chapter 449 of the Public Acts of 1981.

                                        5
intentionally interjected this “unmentionable” into the trial

when he recounted what the plaintiff said at the scene.

Furthermore, there is nothing in the record to suggest that this

reference to insurance in any way impacted the jury’s verdict in

favor of the defendant.5      There was more than ample evidence to

support a conclusion that the defendant was not guilty of any

negligence that proximately caused this accident.



            The trial court clearly cautioned the jury that the

concept of insurance was not involved in this case and was not to

be considered by them.      We presume the jury heeded the trial

court’s cautionary instruction.           See Johnson v. Lawrence, 720

S.W.2d 50, 60 (Tenn.App. 1986).           In our judgment, the reference

to insurance by the defendant -- quickly corrected by the trial

court -- is not the type of error that would warrant reversal

under the circumstances of this case.



            Having determined that the plaintiff waived any error

by failing to make a motion for a mistrial and that, in any

event, the error relied upon by the plaintiff was not sufficient

to warrant reversal under Rule 36(b), T.R.A.P., we pretermit the

defendant’s argument that the statement was admissible under Rule

803(1.2), Tenn.R.Evid.




      5
       The fact that the plaintiff, who was not sued, had liability insurance
would not be a factor that would logically prompt a jury to render a verdict
in favor of the defendant; but it might be argued that the reference to “good
insurance” could have been interpreted by the jury as meaning that the
plaintiff had a comprehensive automobile insurance policy that included
medical payments coverage, thus, in some way, lessening her need for
compensatory damages. While conjecture, such a line of reasoning would
explain why the reference to “good insurance” could improperly affect the
plaintiff’s claim against the defendant.

                                      6
          The judgment of the trial court is affirmed.   Costs on

appeal are taxed to the appellant.   This case is remanded to the

trial court for the collection of costs assessed below, pursuant

to applicable law.



                              __________________________
                              Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.


________________________
Herschel P. Franks, J.




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