Jury v. Farmers Ins. Exch.

MARY ESCOBAR JURY, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE,a foreign corporation, MID-CENTURY INSURANCE COMPANY, CHRISTOPHER TURPEN,and THE CHRISTOPHER S. TURPEN INSURANCE AGENCY, INC., Defendants-Appellees.

No. A-1-CA-36222

COURT OF APPEALS OF THE STATE OF NEW MEXICO

February 3, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Nancy J. Franchini, District Judge

Kerry Kiernan, P.C.

Kerry Kiernan

Albuquerque, NM

McGinn, Carpenter, Montoya & Love, P.A.

Randi McGinn

Katie Curry

Albuquerque, NM

for Appellant

O'Brien & Padilla, P.C.

Daniel J. O'Brien

Erica R. Neff

Albuquerque, NM

for Appellees Farmers Insurance Exchange and Mid-Century Insurance Company Lewis, Brisbois, Bisgaard & Smith, LLP

Gregory L. Biehler

Jill M. Collins

Albuquerque, NM

for Appellees Christopher Turpen and The Christopher S. Turpen Insurance Agency, Inc.

MEMORANDUM OPINION

IVES, Judge.

{1} Plaintiff Mary Escobar Jury appeals from a jury verdict and judgment entered against her and in favor of Defendants Farmers Insurance Exchange and Mid-Century Insurance Company (the Farmers Defendants) and Defendants Christopher Turpen and the Christopher S. Turpen Insurance Agency (the Turpen Defendants) (collectively, Defendants). Plaintiff argues that (1) we should reverse the judgment and remand for a new trial because the district court abused its discretion by bifurcating the trial and by ruling against Plaintiff on certain evidentiary issues, and (2) if we do not conclude that any error warrants a new trial, we should reverse the district court's award of certain costs to the Farmers Defendants because that award was based on an abuse of the district court's discretion. Unpersuaded, we affirm.

BACKGROUND

{2} Plaintiff was seriously injured in an accident with an automobile while riding her bicycle westward across the intersection of San Mateo Boulevard and Indian School Road in Albuquerque, New Mexico in September 2010. Defendant Mid-Century Insurance Company denied Plaintiff's claim for underinsured motorist (UIM) benefits under her business's commercial auto insurance policy on the ground that Plaintiff was not entitled to benefits under the language of the policy because she had not been " 'occupying' a 'covered auto' " at the time of the accident. Plaintiff then brought suit, asserting claims for breach of contract and insurance bad faith against the Farmers Defendants, claims for negligence and violations of the Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2019), against the Turpen Defendants, and claims for violations of the New Mexico Unfair Insurance Practices Act, NMSA 1978, § 59A-16-20 (1997), against all Defendants.

{3} After the Farmers Defendants raised Plaintiff's lack of a legal entitlement to recover damages from the driver of the automobile as a defense, see generally NMSA 1978, § 66-5-301(A) (1983) (providing, in relevant part, that UIM coverage is "coverage . . . for the protection of persons . . . who are legally entitled to recover damages" from uninsured and underinsured motorists), the Turpen and Farmers Defendants separately moved to bifurcate trial on that issue—i.e. the driver's negligence—from trial on the other issues raised by Plaintiff's claims. Defendants argued that bifurcation would (1) further the expeditious and economical resolution of Plaintiff's case because a jury finding that the driver was not at fault would dispose of all of Plaintiff's claims; (2) avoid jury confusion by separating the presentation of evidence relevant to the driver's negligence from the presentation of evidence relevant to the other issues raised by Plaintiff's claims; and (3) avoid prejudice to Defendants by preventing the introduction of evidence inadmissible under Rules 11-403 and 11-411 NMRA to prove negligence during trial on that issue. After full briefing and a hearing, the district court granted Defendants' motions, finding that "bifurcation [would] avoid jury confusion and undue prejudice to Defendants."

{4} A jury found in Defendants' favor in the bifurcated negligence trial, and the district court entered judgment against Plaintiff on all of her claims. The district court then awarded certain costs to the Farmers Defendants over Plaintiff's objection. This appeal followed.

DISCUSSION

I. The District Court Did Not Commit Reversible Error in Bifurcating Trial on the Issue of Plaintiff's Legal Entitlement to Recover Damages From the Allegedly Underinsured Driver

{5} Plaintiff's primary contention on appeal is that the district court erred in bifurcating trial on the issue of negligence pursuant to Rule 1-042(B) NMRA. The Rule provides that a district court, "in furtherance of convenience or to avoid prejudice, or when . . . conducive to expedition and economy, may order a separate trial . . . of any separate issue or . . . issues, always preserving the right of trial by jury given to any party as a constitutional right." Id. "[T]he decision whether to bifurcate a trial ordinarily rests in the sound discretion of the trial court and will not be overturned [on appeal] absent an abuse of that discretion." Martinez v. Reid, 2002-NMSC-015, ¶ 27, 132 N.M. 237, 46 P.3d 1237. "We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." State v. Otto, 2007-NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation omitted). "[An] abuse of discretion will not be presumed; it must be affirmatively established." State v. Bonilla, 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491 (internal quotation marks and citation omitted). Plaintiff has not affirmatively established that the district court abused its discretion in this case.

{6} The legal basis for Plaintiff's challenge to the bifurcation order is quite narrow. Plaintiff does not squarely challenge the essence of the district court's rationale—its determination that "bifurcation will avoid jury confusion and undue prejudice to Defendants."¹ Nor does Plaintiff directly challenge the Farmers Defendants' argumentthat bifurcation furthered the interests of efficiency, convenience, and economy.² And Plaintiff does not challenge the manner in which the district court exercised its discretion to weigh the Rule 1-042(B) considerations: prejudice, efficiency, convenience, and economy. Instead, Plaintiff argues that bifurcation produced a "charade" of a trial that violated her right under the due process and jury trial guarantees of the New Mexico Constitution to inform the jury of "the identity of the defendant being sued, the claims being brought against that defendant, the identity of the entity that will be responsible for paying damages, the contractual relationship and obligations between the defendant and the plaintiff, and the inconsistent positions taken by the defendant."³

{7} Plaintiff's claim that she has a constitutional right to a non-bifurcated trial is not tethered to the authorities on which she relies. Plaintiff does not cite a single case so much as suggesting that the New Mexico Constitution protects such a right, let alone that this right bars our district courts from holding a separate trial on an issue whenever bifurcation prevents a plaintiff from presenting to the jury the broad array of information Plaintiff asserts she had a constitutional right to present. In fact, none of the cases Plaintiff cites even interpret the pertinent provisions of our state constitution, comparable provisions of other states' constitutions, or any provision of the federal constitution. Because Plaintiff has not cited any authorities interpreting or applying constitutional jury trial or due process provisions in a manner that supports Plaintiff's argument, we assume no such authorities exist. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority. We therefore will not do this research for counsel.").

{8} Plaintiff relies on three out-of-state cases that did not even address the propriety of bifurcation. See Lamz v. Geico Gen. Ins. Co., 803 So. 2d 593, 594, 596 (Fla. 2001) (holding that it had been reversible error for the trial court to refuse to "refer[] to [the defendant UIM carrier] as the plaintiffs' 'underinsured motorist carrier[,]'" rather than as "the plaintiffs' automotive insurance carrier," when identifying the parties to the jury during voir dire in a trial on the underinsured driver's negligence); Earle v. Cobb, 156 S.W.3d 257, 259 (Ky. 2004) (holding that the trial court had committed reversible error by ruling "that the existence of the UIM coverage provided by [the defendant insurer] could not be revealed to the jury" where, as a result of that ruling, the insurer "was notidentified [as a party] and the case was presented as if the only parties were the plaintiff . . . and the [driver]" during a bifurcated trial on the issue of negligence); King v. State Farm Mut. Auto. Ins. Co., 850 A.2d 428, 438 (Md. Ct. Spec. App. 2004) (holding that the trial court had erred in granting the defendant UIM carrier's motion to prevent its identification as the sole party defendant during trial on the issue of damages caused by an underinsured motorist). Assuming for the sake of argument that these cases are pertinent to the bifurcation question before us, we find in them no basis for reaching the constitutional holding Plaintiff seeks. The Supreme Court of Kentucky based its holding in Earle on the court's interpretation, informed by public policy, of Kentucky's equivalent to ...