Starlett King and Jeff Shetterly v. Brian Harrington

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1977
S TARLETT K ING AND J EFF S HETTERLY ,
Plaintiffs-Appellants,
v.
B RIAN H ARRINGTON ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 03 C 1343—Larry J. McKinney, Chief Judge.
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A RGUED J ANUARY 17, 2006—D ECIDED M AY 9, 2006
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Before B AUER , R OVNER , and S YKES , Circuit Judges.
B AUER , Circuit Judge. Starlett King and Jeff Shetterly
brought suit against Brian Harrington for injuries sus-
tained in an automobile accident. Based on diversity of
citizenship and claimed damages in excess of $75,000, the
case was tried in the United States District Court for the
Southern District of Indiana. After a two-day trial, the jury
rendered a verdict in favor of the defendant. The district
court denied plaintiffs’ motion for a new trial, and this
appeal followed. We affirm.
On January 8, 2002, defendant Harrington and plain-
tiffs Shetterly and King were involved in an automobile

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2 No. 05-1977
accident at the intersection of North Pine Street and
Michigan Avenue in Indianapolis, Indiana. King and
Shetterly, the driver and passenger, respectively, in one
of the vehicles, filed suit against Harrington claiming
negligence. Prior to trial, Harrington filed a motion in
limine, requesting that the court order all participants in
the trial to refrain from referencing the defendant’s posses-
sion of liability insurance. Chief Judge McKinney granted
the motion.
At trial, plaintiffs’ counsel offered the Indiana Officers’
Standard Crash Report, completed at the scene of the
accident by Officer Carl Cress, for admission into evidence.
All information regarding the attending officer’s opinion
on the cause of the accident and defendant’s insurance
was redacted from the report. During Harrington’s direct
examination, defense counsel offered into evidence two
photographs of Harrington’s Chevrolet S-10 pick-up truck
to illustrate the damage sustained in the accident. Follow-
ing the offer, plaintiffs’ counsel stated that he had “[n]o
objection.” Trial Tr. vol. 2, 153-54.
The jury heard testimony from both Harrington and King.
Harrington testified that he was traveling north on Pine
Street when he entered the intersection with Michigan
Avenue, and that, while he was not aware of his exact rate
of travel, he did not believe he was speeding. Harrington
also said that he was forced to slow down before entering
the intersection because of a “hump” in the road. As he
approached the intersection Harrington saw that the traffic
light was yellow, but he said he did not see King and
Shetterly’s vehicle. On entering the intersection, appellants’
car struck Harrington’s pick-up truck in the rear fender of
the passenger side.
King testified that she proceeded into the intersection
on a green light and was struck by Harrington. Plaintiffs-
appellants called witness Lea Elaine Vermillion, who was

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No. 05-1977 3
two cars behind King and Shetterly at the time of the
accident. Vermillion testified that the light was green when
appellants entered the intersection. After hearing the
evidence, the jury found for Harrington on King and
Shetterly’s claim of negligence.
Plaintiffs’ motion for a new trial was denied. They now
appeal pursuant to 28 U.S.C. § 1291 arguing that it was
error to exclude evidence of Harrington’s liability insurance
and to redact the Crash Report, error to admit the photo-
graphs illustrating the damage sustained by the defendant’s
vehicle, and error to deny their motion for a new trial. We
consider these claims in sequence.
At the outset, we note that the Federal Rules of Evidence
and federal law govern the admissibility of evidence in
diversity cases. Rosenburg v. Lincoln American Life Ins.
Co., 883 F.2d 1328, 1333 (7th Cir. 1989); Flaminio v. Honda
Motor Co., 733 F.2d 463, 470-71 (7th Cir. 1984); see also
Pieters v. B-Right Trucking, Inc., 669 F.Supp. 1463, 1465
(N.D.Ind. 1987). District court decisions regarding such
admissions are reviewed for an abuse of discretion. Estate
of Moreland v. Dieter, 395 F.3d 747, 753-54 (7th Cir. 2005);
Rosenburg, 883 F.2d at 1333. An abuse will not be found
unless “(1) the record contains no evidence upon which the
court could have rationally based its decision; (2) the
decision is based on an erroneous conclusion of law; (3) the
decision is based on clearly erroneous factual findings; or
(4) the decision clearly appears arbitrary.” Cent. States v.
Phencorp Reinsurance Co., 440 F.3d 870, 875 (7th Cir. 2006)
(citation omitted).
First the claim that the trial court erred in preventing
them from introducing evidence of liability insurance:
Federal Rule of Evidence 411 states that
[e]vidence that a person was or was not insured against
liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. This

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4 No. 05-1977
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.
Because the paramount question before the jury was one of
negligence, evidence of Harrington’s insurance was not
admissible absent a showing on the part of King and
Shetterly that they intended to use the information for
some alternate purpose set forth in the second sentence
of Rule 411. The plaintiffs made no such alternate showing.
Harrington requested the limiting instruction in his motion
in limine, and Shetterly and King presented no argument
to the contrary. Chief Judge McKinney thus granted Har-
rington’s motion. Nor, during appellate oral argument, did
the plaintiffs offer any permissible reason that would make
the insurance evidence admissible at trial.
Plaintiffs’ argument regarding the testimony of Officer
Carl Cress also fails to demonstrate an abuse of discretion.
Estate of Moreland, 395 F.3d at 753-54. Specifically,
Shetterly and King claim that the district court erred
in that Officer Cress was not allowed to refresh his memory
using the Crash Report, was not allowed to offer his opinion
on the cause of the accident, and that the Crash Report was
redacted to obscure the “most significant portions,” App. Br.
17. (Following the previously discussed pre-trial motions in
limine, the Crash Report had been redacted to exclude
evidence of Harrington’s liability insurance.) Again, all
parties agreed to this evidentiary exclusion pursuant to
Federal Rule of Evidence 411, and we have already held
this was not an abuse of the district court’s discretion.
Additionally, appellants argue that the Report should not
have been redacted to exclude Cress’s field opinion on the
cause of the accident. Having agreed to these redactions
before trial and offered the Report into evidence themselves,
plaintiffs may not now argue error on the part of the trial
court. See United States v. Cunningham, 405 F.3d 497, 502

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No. 05-1977 5
(7th Cir. 2005) (citing United States v. Redditt, 381 F.3d
597,602 (7th Cir. 2004)).
As to the claim that Officer Cress was not allowed to
refresh his memory using the Report, this simply is not
true. In preliminary questioning, Cress testified that he had
no independent recollection of the accident at issue. Imme-
diately thereafter, on direct examination, the district court
allowed plaintiffs’ counsel to introduce the Crash Report (in
its redacted form) into evidence and Cress reviewed the
document on the stand. After a series of questions that
tested his memory, Cress again stated that he had no
recollection independent of his notations on the Report.
In the final matter on Officer Cress’s testimony, we find
no error in the district court’s preventing him from offering
his opinion at trial. Cress was not present at the time of the
accident and repeatedly testified that he had nothing to add
to the record that wasn’t already admitted in his Report.
The district court, therefore, properly limited the Officer’s
testimony pursuant to the Federal Rules of Evidence,
Article VII, Opinions and Expert Testimony, and Article
VIII, Hearsay.
Appellants next complain that the district court erred
in admitting two photographs that depicted the damage
suffered by Harrington’s vehicle. This issue, however, is not
available for appellate review. Federal Rule of Evidence
103(a)(1) states, in relevant part, that “[e]rror may not be
predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and . . . a
timely objection or motion to strike appears of record. . . .”
At trial, defense counsel offered the photographs into
evidence and appellants’ counsel clearly stated “[n]o objec-
tion.” Trial Tr. vol. 2, 153-54.
Finally, appellants ask us to reverse the district court’s
denial of their motion for a new trial, and remand for
further proceedings. A new trial may be granted only if

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6 No. 05-1977
the jury’s verdict is against the manifest weight of the
evidence. ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353
F.3d 541, 545 (7th Cir. 2003). To meet this standard, King
and Shetterly must demonstrate that no rational jury could
have rendered a verdict against them. Woodward v. Corr.
Med. Services of Illinois, Inc., 368 F.3d 917, 926 (7th Cir.
2004). When making this evaluation, we must view the
evidence in a light most favorable to Harrington, leaving
issues of credibility and weight of evidence to the jury, and
sustain the verdict where a “reasonable basis” exists in the
record to support the outcome. Kapelanski, 390 F.3d 525,
530 (7th Cir. 2004). Because the matter involved questions
of negligence on the action of both King and Harrington, the
jury was instructed pursuant to the Indiana Comparative
Fault Act, I ND . C ODE §§ 34-51-2-1 to -7 (2005). Considering
these instructions, the jury found that Harrington was not
negligent, and thus plaintiffs were not entitled to recovery.
Appellants argue that the verdict was unsupported by the
evidence. They base this claim on their now rejected
evidentiary arguments and the testimony of Vermillion and
King that the traffic light was green when the King and
Shetterly vehicle entered the intersection. The jury, how-
ever, was presented with countering testimony that Har-
rington was faced with a yellow light when he entered the
intersection and that all of the damage suffered by his
vehicle was on the rear, passenger side. Furthermore,
Vermillion’s view of appellants’ vehicle was obstructed at
the time they entered the intersection. Viewing the facts in
a light most favorable to the defendant, we cannot now hold
the jury had no reasonable basis to find for Harrington on
the question of negligence.
For the foregoing reasons, we A FFIRM the jury’s verdict
and deny plaintiffs’ motion for a new trial.

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No. 05-1977 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-9-06

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