Mary Padilla v. Marilyn Brown Sidney--Appeal from 57th Judicial District Court of Bexar County

No. 04-99-00491-CV

Mary PADILLA,

Appellant

v.

Marilyn Brown SIDNEY,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 97-CI-00880

Honorable Patrick Boone, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 18, 2000

AFFIRMED

Appellant, Mary Padilla, appeals a jury verdict finding her one-hundred percent negligent in the automobile accident which forms the basis of this lawsuit. In her first two issues, Padilla complains the trial court erred in admitting testimony regarding her health insurance coverage and instructing the jury it could consider evidence of insurance in determining whether Padilla mitigated her damages. In her third and fourth issues, Padilla challenges the legal and factual sufficiency of the jury verdict on negligence. We overrule all issues and affirm the trial court's judgment.

On July 2, 1995, the vehicles driven by Padilla, plaintiff in the case below, and Marilyn Brown Sidney, appellee and defendant below, collided in the intersection of Walters and Houston Street in San Antonio, Texas. Padilla's vehicle struck the rear driver side of Sidney's vehicle. Padilla testified she was stopped at the intersection when her light turned green. She saw Sidney's vehicle approaching but assumed Sidney would stop since she was some distance away. Sidney testified she entered the intersection on a green light and Padilla was speeding toward her, rather than being stopped at the intersection. The police accident report does not charge either driver with fault but simply notes both drivers said they had a green light.

Shortly after the accident, Padilla went to University Hospital Clinic where she was advised to have orthoscopic surgery because of pain in her knee. Padilla did not have surgery, but sought a second opinion from a specialist, Dr. Lenderman. Dr. Lenderman agreed with the hospital staff, telling Padilla the surgery would help resolve her pain. However, despite continued pain, appellant had not undergone surgery at the time of trial.

In her pretrial deposition, Padilla explained she did not have the operation because she could not afford it. However, during the trial, Padilla testified she did not have surgery because she was the primary caretaker for her elderly mother. Attempting to highlight the inconsistency of this testimony, Sidney's attorney asked Padilla if she had obtained health insurance since the time the accident occurred. Padilla's attorney objected that the introduction of evidence regarding health insurance violated the collateral source rule. The trial judge ruled the evidence was admissible for impeachment. Following brief questions about insurance by Sidney's counsel, Padilla's attorney asked several questions of a similar but more detailed nature regarding insurance coverage. In the jury charge, the trial judge included an instruction that the jurors were to disregard evidence of insurance except "on the issue of whether Ms. Padilla could have had surgery in the past."

The jury found Padilla one-hundred percent negligent and never reached the damages issues. If, as Padilla claims, the evidence is legally or factually insufficient to uphold the jury's verdict, we need not reach the issues regarding the admission of insurance coverage evidence. Accordingly, we will address Padilla's issues in a different order than presented.

Sufficiency of the Evidence

Padilla's third issue challenges only the factual sufficiency of the evidence as to Padilla's negligence. However, in her fourth issue, Padilla asserts the trial court erred in refusing to grant a mistrial because the evidence showed, as a matter of law, Sidney's negligence was a proximate cause of the accident. Accordingly, we must review both the legal and factual sufficiency of the evidence.

We review a "no evidence" challenge by considering all the record evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc.,960 S.W.2d 41, 48 (Tex. 1998); see also W. Wendell Hall, Standards of Review in Texas, 29 St. mary's Law J. 351, 478-79 (1998). We must sustain the no evidence challenge when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that enables reasonable and fair-minded people to differ in their conclusions. Associated Indem. Corp., 964 S.W.2d at 286; Havner, 953 S.W.2d at 711.

In reviewing factual sufficiency of the evidence, we examine all the evidence and set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a jury is given conflicting evidence, it may choose to believe one witness and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex. 1986). We may not substitute our opinion for that of the trier of fact. Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex. App.-Houston [1st Dist.] 1988, writ denied).

In this case, both Padilla and Sidney claimed to have a green light. The accident report indicates Sidney was almost through the intersection before the impact. Padilla was almost halfway across the intersection. Padilla testified she saw the oncoming car but she proceeded into the intersection "because it was [her] right to go because [the light] was green." The jury, having heard and evaluated all the evidence, could have decided to believe Sidney rather than Padilla. See U. S. Fire Ins. Co. v. Ramos, 863 S.W.2d 534, 539 (Tex. App.-El Paso 1993, writ denied) (when testimony is conflicting, we defer to the fact finder). We hold the record is both legally and factually sufficient to affirm the trial court's judgment.

Collateral Source Rule

Padilla claims the admission of evidence of health insurance violates the collateral source rule. We review the trial court's ruling on the admissibility of evidence regarding income from a collateral source under an abuse of discretion standard. See Macias v. Ramos, 917 S.W.2d 371, 373 (Tex. App.-San Antonio 1996, no writ). The collateral source rule bars the introduction of evidence showing the plaintiff carries insurance which has compensated the plaintiff for damages because the evidence is immaterial and has a tendency to confuse the jury. See Macias, 917 S.W.2d at 374.

As with many rules of law, there is an exception to the collateral source rule. If a plaintiff claims financial hardship, evidence of a collateral source may be offered to impeach the credibility of the witness. See Macias v. Ramos, 917 S.W.2d 371, 374 (Tex. App.-San Antonio 1996, no writ); Castro v. U.S. Natural Resources, Inc., 880 S.W.2d 62, 67 (Tex. App.-San Antonio 1994, writ denied). For impeachment evidence to be allowed, the witness must offer direct testimony inconsistent with the receipt of benefits. See J. R. Beadel & Co. v. De La Garza, 690 S.W.2d 71, 74 (Tex. App.-Dallas 1985, writ ref'd n.r.e.); Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex. App.-Houston [14th Dist.] 1990, writ denied).

In this case, Padilla did not offer any testimony suggesting she could not afford to pay for the surgery. She stated she did not have the operation because she did not want to upset her elderly mother and leave her without a caretaker. Because Padilla did not offer testimony inconsistent with the receipt of benefits, the exception to the collateral source rule for impeachment does not apply. Sidney's counsel could have explored the inconsistency of Padilla's two statements without discussing health insurance. Padilla's attorney properly objected to the admission of the collateral source evidence and the trial court erred in allowing the questioning. The trial court also erred by instructing the jury it could consider the evidence in determining whether Padilla mitigated her damages.

Having determined the admission of the evidence was improper, we must determine whether the issue was waived by Padilla because of the follow-up questions posited by her counsel at trial. In order to preserve an issue for appeal, an attorney must make a timely, specific objection and obtain a ruling. See Tex. R. App. P. 52(a). Here, Padilla's counsel objected to the evidence in timely manner and obtained a ruling on the admissibility of the evidence. These actions alone would have preserved the issue for appeal.

However, having been overruled on her objection to the evidence, Padilla is not then required to sit by and take her chances on appeal. See Beavers v. Northrop Worldwide Aircraft Services, Inc., 821 S.W.2d 669, 674 (Tex. App.-Amarillo 1991, writ denied). A party does not waive a previous objection by offering testimony to rebut, explain, or demonstrate the untruthfulness of the objectionable evidence. See id.; Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex. 1986). After the admission of the information about health insurance, Padilla's attorney asked her several questions concerning her health insurance. Those questions were designed to explain the effect of her insurance and counteract any prejudice encountered as a result of the admission of health insurance evidence. This testimony did not waive Padilla's prior objection.

Finally, although we find the trial court erred in the admission of insurance evidence and in the instruction to the jury, we will not overrule the verdict unless we find the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Scurlock Oil Co., 724 S.W.2d at 4-5; Macias, 917 S.W.2d at 374. An improper ruling on the admission of evidence is generally not grounds for reversal unless the evidence is controlling on a material issue dispositive of the case. See Macias, 917 S.W.2d at 375, citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). We have previously held that where the jury does not reach the issue of damages, no harm arises from the erroneous admission of collateral source evidence. See Guerra v. Wal-Mart Stores, Inc., 943 S.W.2d 56, 61 (Tex. App.-San Antonio 1998, writ denied); Macias, 917 S.W.2d at 374-75; Castro, 880 S.W.2d at 67.

We find nothing in this record to suggest the jury's decision on negligence was controlled or affected by the evidence of Padilla's health insurance coverage. Because the jury never reached the issue of damages, the jury instruction was similarly harmless. We overrule Padilla's first and second issues.

Conclusion

We hold the record evidence is legally and factually sufficient to support the jury's verdict. Furthermore, although the trial court erred in admitting evidence of insurance and instructing the jury as to its relevance, we hold the error was not harmful. Therefore, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH