                                          No. 00-451

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 323


MARCIA DIAS,

              Plaintiff and Respondent,

         v.

HEALTHY MOTHERS, HEALTHY BABIES, INC.,
a Montana Corporation,

              Defendant and Appellant.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark,
                     The Honorable Jeffery M. Sherlock, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Robert R. Throssell, Keller, Reynolds, Drake, Johnson & Gillespie, P.C.,
Helena, Montana

              For Respondent:

                     Joseph C. Engel, III, P.C., Attorney at Law, Great Falls, Montana


                                               Submitted on Briefs: May 2, 2002

                                                          Decided: December 19, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1    The Plaintiff, Marcia Dias, filed a complaint in the District

Court for the First Judicial District in Lewis and Clark County in

which she sought damages from the Defendant, Healthy Mothers,

Healthy Babies, Inc., for wrongful discharge from employment and

for unpaid wages, pursuant to §§ 39-3-201 through 217, MCA, wage

and hour claim.          Following trial the jury found that Dias was

wrongfully discharged and awarded damages.                    HMHB filed a motion for

a new trial which was denied by the District Court.                         HMHB appeals

the District Court’s denial of its motion for a new trial.                              We

affirm the Order of the District Court.

¶2    We address the following issues on appeal:

¶3    1.    Did the District Court abuse its discretion when it denied

HMHB’s motion for a new trial?

¶4    2.    Is Dias entitled to recover attorney fees pursuant to §

39-3-214, MCA?

                      FACTUAL AND PROCEDURAL BACKGROUND

¶5    On February 18, 1994, Marcia Dias was terminated from her
employment as a general project director for Healthy Mothers,

Healthy     Babies,     Inc.      HMHB    claimed        it   was   having    financial

difficulties and could no longer afford her position.                        On June 3,

1995, Dias and four co-workers, who were also fired, filed a pro se

complaint against HMHB, in which they alleged that they had been

wrongfully      discharged,       in   retaliation        and     without     cause,    in

violation      of   HMHB’s     personnel        policy    and     Montana    law.      The

Plaintiffs requested compensatory damages for lost and unpaid wages



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and punitive damages for retaliatory discharge.

¶6   On February 14, 2000, a six day jury trial commenced in the

District Court regarding the claims of Dias and Amy Palmer.        During

jury selection, in response to a question by Palmer’s attorney, a

prospective   juror    commented   that   she   would   have   difficulty

returning a verdict for the Plaintiffs if it could limit HMHB’s

ability to continue its programs or expose HMHB’s volunteers to

personal liability.     Palmer’s attorney explained that the “noble

volunteers” were protected from personal liability by the corporate

shield.   The juror still expressed that she could be biased and

Palmer’s attorney moved to strike the juror for cause.
¶7   The District Court permitted Dias’ counsel to question the

juror before ruling.    Dias’ counsel explained:

     Q. (By Mr. Engel) Well, the question that occurs to me
     in response to what you’ve stated, ma’am, is that when
     you sit as a juror, you’re serving as a fact finder.
     You’re supposed to base your opinion in the case upon
     what comes from the witness stand and is introduced into
     evidence. And when you would be considering whether or
     not the defendant in any case has any wherewithal to
     respond to a judgment by paying, you would be considering
     something outside of that evidence.      So the general
     instruction - - the trials that I’ve participated in,
     when jurors are concerned about whether or not there may
     be insurance or some other - -

     MR. THROSSELL: Objection, Your Honor.

     THE COURT: Sustained.

     MR. THROSSELL: And I would like the record to reflect
     that counsel has tainted this matter and would like this
     objection on the record.

     THE COURT: That will be so noted.

     Q. (By Mr. Engel) Well, you’re not supposed to concern
     yourself with the source of the payment for any judgment.
      So my question to you then, ma’am, would you be able to
     set aside that stated concern that you’ve indicated and

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     base your - - your service on the jury based upon the
     evidence and what your required to do?

     A. I’m not certain that I could if it became apparent
     that the program would suffer. . . .

Following a short discussion among counsel and the court, the juror

was stricken.

¶8   At the first recess subsequent to the exchange the following

discussion took place outside the presence of the jury.

     MR THROSSELL: . . . I wanted to make, for the record,
     now the defendant’s objection that the availability of
     insurance has been interjected into this matter. It has
     tainted the entire jury pool.     The defendants Healthy
     Mothers Healthy Babies asks for a mistrial and also would
     ask for the dismissal of the plaintiff’s [sic] case in
     this matter, both the plaintiffs, Palmer and Dias.
     . . . .

     MR. ENGEL: Well, Your Honor, I was called out of order to
     address an issue that a juror raised with respect to her
     inability to be fair and impartial because she was
     concerned about the wherewithal of the defendants to
     respond. And in attempting to elicit from her that she
     was not to be concerned about the source of the payment
     for any prospective judgment, I mentioned the word
     insurance. And I don’t think it prejudiced, I think, or
     tainted the panel in any respect. It was not mentioned
     in - - in any other context in that, Your Honor. And I
     will not mention it again.

     . . . .

     THE COURT: The motion will be denied. . . . And I don’t
     know about giving a cautionary instruction at this point.
      It might bring more emphasis to it. So what I’ll do,
     Mr. Throssell, if you still want a cautionary
     instruction, we can issue one at the end with the rest of
     the instructions. But I think you should think about
     whether it will emphasize this thing. At this point it’s
     probably a minor issue, and lets not let it happen again.

¶9   In his remarks, Dias’ counsel did not state that HMHB was

insured, nor did he misstate any fact or rule of law to the jury.

The word insurance was not uttered again.   A curative instruction


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was neither requested, nor was one given at the end of the trial.

On February 22, 2000, the jury found that Dias had been wrongfully

discharged from her employment without good cause and in violation

of HMHB’s own written personnel policy.           The jury found that Dias

was   entitled   to   $91,595.84   for   lost    wages   and   benefits,   and

$4,380.00 for her wage and hour claim.          The jury found HMHB had not

acted in retaliation or engaged in actual fraud nor malice when it

discharged Dias and, therefore, punitive damages were not awarded.

 The District Court subsequently awarded $6,658.77 for attorney

fees incurred to pursue the wage and hour claim.
¶10   A verdict was also returned in favor of Palmer.           That case has

been settled and is not the subject of this appeal.

¶11   HMHB filed a motion for a new trial on April 5, 2000, and

alleged that there were four irregularities during trial that

prevented HMHB from having a fair trial.                 The first alleged

irregularity was counsel’s use of the word insurance in front of

the jury during voir dire examination.            HMHB argued it had been

prejudiced by the remark.

¶12   On May 4, 2000, the District Court denied HMHB’s motion and

stated in part that: “The first stated reason for a new trial is

that insurance was mentioned during voir dire.           While this is true,

the Court sees no evidence of any prejudice.              The Court offered

defense counsel to present a curative instruction, but non was

requested.”

                           STANDARD OF REVIEW

¶13   The decision whether to grant a new trial is committed to the

sound discretion of the district court and will not be disturbed

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absent a showing of manifest abuse of discretion.       Newbauer v.

Hinebauch, 1998 MT 115, ¶ 15, 288 Mont. 482, ¶ 15, 958 P.2d 705, ¶

15.

                             DISCUSSION

                              ISSUE 1

¶14   Did the District Court abuse its discretion when it denied

HMHB’s motion for a new trial?

¶15   HMHB contends that the District Court abused its discretion

when it refused to order a new trial because counsel’s reference to

insurance during trial is strictly forbidden by prior cases of this

Court and that the District Court abused its discretion when it

found there was no prejudice to HMHB from the reference.     We are

not told whether HMHB had liability insurance which covers the

claims made by Dias and, if it did, why it would not be prejudicial

to Dias for the jury to mistakenly assume that the claim would

force this struggling non-profit organization out of business.
¶16   Rule 411, M.R.Evid., provides:
      Liability Insurance.
      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.   This

      rule does not require the exclusion of evidence of

      insurance against liability when offered for another

      purpose, such as proof of agency, ownership, or control,

      or bias or prejudice of a witness.

¶17   Whether or not a reference to insurance during voir dire

violates Rule 411 is a subjective determination which is left



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to the   district court’s discretion.          A district court is not

required   to   grant    a    new    trial   simply   because   the   word

insurance is spoken during trial.

     [T]he mere mention of insurance does not in every
     instance constitute reversible error. The important and
     controlling question is, How and under what circumstances
     was it brought into the case? . . . Each case however,
     must, generally speaking, stand on its own particular
     facts and incidents and be determined by the manner and
     circumstances in which the question of insurance was
     brought into the case. Circumstances vary–likewise will
     the general rule and it exceptions also vary.

Francis v. Heidel (1937), 104 Mont. 580, 587-88, 68 P.2d 583, 585.

 The restriction imposed by Rule 411 is narrow.                  It prohibits

evidence of insurance to prove liability but specifically provides

that it may be admissible for other purposes and then offers a non-

exclusive list of examples.           The notion that the mere mention of

insurance can move a jury to ignore the law and award a windfall to

the plaintiff is an ancient myth unsupported by any empirical data

which has been brought to this Court’s attention.                Common sense

dictates that the opposite is true.               Jurors concerned that an

individual might not have insurance are more likely to protect that

individual   and   his   or    her    assets   from   damages   which,   unless

personal to the individual, often seem abstract and theoretical.

For example, in Million v. Rahhal (Okl. 1966), 417 P.2d 298, 300,

cited in Sioux v. Powell (1982), 199 Mont. 148, 153, 647 P.2d 861,

864, the Oklahoma court stated:
     The prejudice created by a showing of the absence of
     insurance is likely to be greater than when the existence
     of insurance coverage is shown. Sympathy is one of the
     most controlling human emotions. In City of New Cordell
     v. Lowe [Okl., 389 P.2d 103], this court said:
     ‘Such information encourages sympathy for a party who
     presumably has no way of being reimbursed for his loss


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      than by a favorable verdict.’

¶18   During voir dire examination, a prospective juror spoke at

length about her difficulty returning a verdict in favor of the

plaintiffs because she did not want to hamper the defendant’s

ability to continue its good work.      Fearful that she may have

evoked the sympathies of the entire jury, Dias’ counsel attempted

to explain that a jury is only permitted to base its factual

findings on the witnesses and evidence presented at trial.      He

explained that a non-profit organization’s ability to pay will not

be in evidence, and should not be considered.     He did not state

that the defendant was insured.   The defendant objected, but there

was no lengthy discussion of the issue in front of the jury.
¶19   In those cases relied on by the defendant, (for example Avery

v. City of Anaconda (1967), 149 Mont. 495, 428 P.2d 465, and

D’Hoodge v. McCann (1968), 151 Mont 353, 443 P.2d 747) insurance

was repeatedly referred to in an obvious effort to influence the

jury’s decision.   In the present case, there was one reference to

“insurance” in an effort to avoid prejudice to the plaintiff.   We

conclude that it did not occur in a manner that is prohibited by

Rule 411.

¶20   The District Court is responsible for determining whether the

reference to insurance is sufficiently prejudicial to warrant a new

trial based on the circumstances and manner in which insurance is

mentioned.   The District Court concluded that the use of the word

insurance during voir dire examination was a minor issue and

concluded that there was no evidence of prejudice when it denied

HMHB’s motion for a new trial.


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¶21   Based on the facts of this case, we conclude that the District

Court did not abuse its discretion when it denied HMHB’s motion for

a new trial.

                               ISSUE 2

¶22   Is Dias entitled to attorney fees pursuant to § 39-3-214, MCA?

¶23   In her respondent’s brief, Dias contends that she is entitled

to attorney fees incurred to respond to HMHB’s appeal from the wage

and hour claim.    HMHB asserts   that Dias was required to file a

cross-appeal to recover additional attorney fees incurred on appeal

and that she did not do so.
¶24   Section 39-3-214, MCA, provides that a judgement in favor of

the plaintiff in an action for unpaid wages must include all costs

that were reasonably necessary to enter or maintain the wage claim,

including attorney fees.       We cited the legislature’s intent to

make the employee whole when we concluded that an employee was

entitled to recover attorney fees for an action to pierce the

corporate veil because the action was necessary to pursue the

underlying wage claim.     Glaspey v. Workman (1987), 230 Mont 307,

309, 749 P.2d 1083, 1084-85.    In Glaspey II v. Workman (1988), 234

Mont. 374, 377, 763 P.2d 666, 668, we held that the mandatory

language of § 39-3-214, MCA, required that reasonable attorney fees

be awarded to an employee who successfully appealed a wage claim

action.   Once again, the legislature’s intent to make the employee

whole was cited in our holding.       Glaspey II, 234 Mont. at 379, 763

P.2d at 672.      Dias was awarded attorney fees for successful

prosecution of her wage claim in the District Court.         There was

nothing for her to appeal.     Her entitlement to attorney fees on


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appeal is a separate issue for consideration by this Court.

¶25   We conclude that the mandatory language in § 39-3-214, MCA,

and the legislature’s intent to make an employee who prevails in a

wage claim whole, requires that Dias recover attorney fees incurred

to defend her judgment for wages on appeal.

¶26     We affirm the Order of the District Court and remand this

case to the District Court for further proceedings to determine the

amount Dias is entitled to for attorney fees incurred on appeal.


                                     /S/ TERRY N. TRIEWEILER


We Concur:

/S/   KARLA M. GRAY
/S/   JAMES C. NELSON
/S/   W. WILLIAM LEAPHART
/S/   JIM REGNIER




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