Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1094 (9th Cir. 1989)

DHS LEASING, INC., Harry Stannebein, Donald Weibert, ShermanVeltkamp, Plaintiffs-Appellees,v.SAFECO INSURANCE COMPANY, Defendant-Appellant.

No. 88-3836.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 13, 1989.Decided Nov. 16, 1989.



A jury returned a verdict in favor of the plaintiffs-appellees and against the defendant-appellant Safeco Insurance Company for $40,000 compensatory damages and $75,000 punitive damages. At oral argument, Safeco acknowledged that it no longer challenges the sufficiency of the evidence to support this verdict. It contends, however, that the district court erred in denying its motion for a mistrial. The mistrial motion was prompted by comments made by the trial judge in front of the jury. Safeco also argues that the trial court committed reversible error in refusing to admit into evidence a pleading filed in another lawsuit by a person who was not a party to the present action.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.


A district court's denial of a mistrial motion, and its evidentiary rulings, are reviewed under the abuse of discretion standard. Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir. 1986) (denial of motion for mistrial); Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986) (evidentiary ruling). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985).


The gravamen of the plaintiffs' case was their contention that Safeco breached its duty of good faith and fair dealing in settling the plaintiffs' claims for damage to their truck and trailer. Among other things, the plaintiffs asserted that Safeco had intentionally misapplied the salvage value of their truck in calculating its cost of repair in order to save Safeco substantial repair costs at the plaintiffs' expense. During the testimony of Safeco's claims adjuster, Lynndyn Myers, who was explaining how Safeco determined the amount to be paid to a policyholder for estimated costs of repair and how salvage value was used in making that determination, the following colloquy occurred between the witness and the court:

The Court: I know I shouldn't add this but in your interpretation, instead of sending them the cost of repair, wouldn't you wait until the truck was repaired?

The Witness: No. As far as if the vehicle could be repaired, we would send the payment to them first so they could give that to the body shop.

The Court: So there is no salvage?

The Witness: In the total loss there is a salvage.

The Court: You are sending them the cost to repair this truck so there is no salvage. You are repairing that truck?

The Witness: But in this case--

The Court: I understand that's what you do but how could you say there is no salvage if you repaired it and put it back into service?

The Witness: If you are using the actual cash value, you have to deduct the salvage to determine how much money you had to work with, which we determined was $14,000 some. The actual repairs are $19,000. So that shows a total loss because the actual cash value less the salvage amount is less than what it would cost to repair it.

The Court: I may be wrong but I don't think a Jesuit could follow your logic. The jury finds the facts. We'll be in recess until 1:30.

After the recess, and outside the presence of the jury, Safeco moved for a mistrial. It grounded this motion on the judge's comment regarding Mrs. Myers' testimony. Safeco contended the judge's comment was prejudicial and prevented Safeco from obtaining a fair trial. The motion was denied.

While the trial judge should not have commented in front of the jury: "I don't think a Jesuit could follow your logic," this is not the kind of judicial misconduct or wrongful intervention by the court which requires reversal in this case. The comment did not disclose actual bias by the trial judge, nor does it leave us as a court of appeals with an abiding impression that the court projected to the jury an appearance of advocacy or partiality. See Shad, 799 F.2d at 531. Our conclusion is strengthened by the fact that at the time the trial judge made this comment he immediately told the jury: "The jury finds the facts." Moreover, the jury's role as sole factfinder was emphasized in the court's instructions given at the close of the case. The jury was instructed:

You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.

You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to indicate whether a witness is worthy of belief....

After making your own judgment, you will give the testimony of each witness such credibility, if any, as you may think it deserves.

It is proper to add the caution that nothing said in these instructions--nothing in any form of verdict prepared for your convenience--is to suggest or convey in any way or manner any intimation as to what verdict I think you should find. What the verdict shall be is the sole and exclusive duty and responsibility of the jury.

We conclude that the district court did not commit reversible error in denying the motion for mistrial.


In defending the case, Safeco wanted to show that the plaintiffs had an opportunity to mitigate their damages and refused to do so. To this end, it introduced into evidence a complaint one of the plaintiffs, DHS Leasing, had filed in a state court action against Steve Griemsman, the lessee of the truck and trailer. Safeco then sought to introduce Griemsman's answer and counterclaim filed in that action. Safeco contended that in the answer and counterclaim Griemsman had offered to pay DHS the insurance proceeds collected from Safeco plus the balance due under the lease from DHS. It was Safeco's position that if DHS had accepted this offer, it would have been compensated in full for the loss it sought to recover from Safeco in the present litigation.

The district court refused to admit the proffered answer and counterclaim into evidence. Safeco appeals this evidentiary ruling. It argues the answer and counterclaim were not offered for the truth of their contents, and in any event the pleadings were offered only for impeachment purposes.

Regardless of whether the answer and counterclaim were offered for the limited purposes articulated by Safeco, their only relevance was that they arguably contained statements which could be construed as an offer by Griemsman, not a party to the present lawsuit, to compensate the plaintiffs for their loss. At best the pleadings were ambiguous. Moreover, they were not signed by Griemsman, but by his lawyer, and no foundation was laid for their admissibility.

We conclude that the district court did not abuse its discretion in refusing to admit the answer and counterclaim into evidence.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3