Opinion
No. 107,334.
2012-12-14
Audrey WEBER, Appellant, v. FARMERS INSURANCE CO., INC., Appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge. Dennis J, Cassidy, of Dunn & Davison, L.L.C., of Kansas City, Missouri, for appellant. Teresa L. Adams and Stanford J. Smith, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge.
Dennis J, Cassidy, of Dunn & Davison, L.L.C., of Kansas City, Missouri, for appellant. Teresa L. Adams and Stanford J. Smith, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
After a frozen water pipe ruptured, more than 500,000 gallons of water poured inside Audrey Weber's unoccupied home causing extensive damage. Weber filed a claim under her homeowner's insurance policy with Farmers Insurance Company (Farmers). Her policy covered such damages only if reasonable care had been taken either to maintain heat in the house or to shut off the water supply and drain the plumbing system. Farmers denied the claim, so Weber sued for breach of contract. There was no dispute at trial that the home had no heat. A jury found that Weber used reasonable care to shut off the home's water supply but did not use reasonable care to drain the plumbing system of water, so judgment was entered for Farmers. Weber raises four issues on appeal. She claims that the trial court erred in giving separate instructions on her duties to shut off the water supply and to drain the plumbing system, that the verdicts as to each question were inconsistent, that the evidence was insufficient to support the verdict, and that she was denied a fair trial when counsel for Farmers raised the issue of increased premiums in his closing statement. Finding no error, we affirm.
Factual and Procedural History
In February 2009, Audrey Weber discovered that more than 500,000 gallons of water had escaped from a frozen water pipe that ruptured inside her 3–level home in Prairie Village, Kansas. Weber, who was not living in the home at the time and had taken steps to winterize it in September 2008, sought coverage under her homeowner's insurance policy with Farmers for the resulting damages, which she ultimately itemized to exceed $339,000. After each of two investigations, Farmers sent Weber denial letters stating that the reason it was denying her claim was because Weber had not taken all necessary steps required for coverage under her policy for this type of loss, i.e., she had not maintained heat or used reasonable care to shut off the water supply to the home and to drain the plumbing system.
Weber sued Fanners for breach of contract. She also sued Water District No. 1 of Johnson County (WaterOne) for negligence related to Weber's request to shut off the water to her property. Weber subsequently settled and dismissed her claims against WaterOne with prejudice. During a 3–day jury trial on her remaining claim against Farmers, conflicting evidence was offered as to what steps Weber had taken to winterize her home and what was said and done during the process of Farmers' investigation that led to the denial of her claim. A jury was asked to resolve those conflicts.
The jury ultimately found in a special verdict that Weber acted reasonably in causing the water to be turned off but did not act reasonably in draining the plumbing system, which resulted in a judgment for Farmers. Weber timely appealed.
Weber's issues on appeal center around three key categories: (1) the insurance policy language; (2) what Weber did, or did not do to winterize her home; and (3) Farmers' investigation of the damage and resulting denials of coverage.
The insurance policy provided coverage under certain circumstances.
Weber's homeowner's insurance policy provided coverage for her loss under the following terms:
“[Farmers does] not insure for loss either consisting of, or caused directly or indirectly by:
....
9. Freezing of and any resulting discharge, leakage or overflow from a plumbing, heating, air-conditioning system or household appliance while the dwelling is vacant or unoccupied unless you [the insured] have used reasonable care to:
a. maintain heat in the building, or
b. shut off the water supply and drain the system and appliance of water.”
It was ultimately undisputed at trial that Weber's home was unoccupied and the heat had been turned off, so the key focus was on Weber's efforts to shut off the water supply and drain the plumbing system of water.
Weber took steps to winterize her home.
The evidence at trial showed that Weber did take steps to shut off her home's water supply and to cause the plumbing system to be drained after she had the gas supply to the home turned off in September 2008. For example, Weber called her water company, WaterOne, who sent Elizabeth McCauley to the home on September 15, 2008, to shut off the water supply at the main shut off in a curb box. Weber also asked her 27–year–old son, Robert, to go to the home to shut off the water supply on the inside and drain the plumbing system. She did so because she knew Robert had winterized his home next door the previous year.
Robert testified that he turned off the water and drained the pipes in Weber's home in the same way that he did in his own home. According to Robert—who admittedly had no plumbing or construction background and did not consult with anyone or research how to drain a plumbing system—he turned off what he understood to be the main shut off valve inside by the water meter and then opened a faucet on the basement level and let the water run out a minute or so until it stopped. Robert had not verified at the time whether the water company had already turned off the water and acknowledged that he never flushed any of the toilets or drained anything else of water in Weber's home, primarily because he had not done so in his own home and had no problems there. Weber verbally confirmed with Robert later that same week that he had done as she asked, but she never personally confirmed that the gas and water were both off in the home. Nor did Weber or Robert ever try to use the water or have any reason to believe that the water was not turned off during their intermittent returns to the home.
The evidence suggested the water was either not turned off or somehow turned back on, which led to extensive damage to Weber's home and its contents.
Either the water was never turned off or it was turned back on—which apparently was not an uncommon occurrence—because during a routine periodic meter read on February 4, 2009, a meter reader detected 316,000 gallons of water had been used in Weber's home, which was an unusually large consumption that suggested there was a leak in the home. WaterOne's attempt to call Weber about this was unsuccessful. An additional 192,000 gallons of water entered the home until someone with WaterOne finally turned off the water at the curb box on February 18, 2009.
Four days later, Weber first learned about the extensive water damage to her home from Robert. At Weber's request, Robert had gone to straighten up the home—which still contained a lot of boxes and furniture that Weber was storing to be moved later into her other, recently renovated home—for Weber's upcoming meeting with a potential buyer and discovered that everything had been destroyed by water. At the time, Weber and Robert were not sure what had happened but did confirm there was no more water coming into the house.
Farmers denied Weber's claim after two investigations.
John Brubeck, a senior claims representative for Famers, spoke to Weber about the details of her claim and inspected the home the following day to determine coverage under her policy. What was said and done during the process of the investigation of Weber's claim was a source of contention at trial. In short, Brubeck's investigation revealed that the gas had been turned off to the home and that the water had escaped from a water pipe in an internal wall on the home's second story that had frozen and burst.
After the inspection, Brubeck drafted and sent a letter denying Weber's claim. Because that letter is key to certain issues raised in this appeal, its pertinent contents are necessarily set forth here, with the exception of the included policy language already quoted above:
“Dear Ms. Weber:
“You reported a claim for water damage to your home. This letter is to advise you of our findings regarding your claim. Unfortunately, water damage resulting from a frozen pipe when reasonable care has not been taken to maintain heat in the building or shut off the water supply and drain the system of water is uninsured or excluded from coverage under your policy. For that reason, we are unable to compensate you for any damages or repairs incurred,
“During the inspection, Claims Representative John Brubeck observed extensive water damage to the majority of the home. He determined that a frozen pipe caused the loss. He also determined that heat had not been maintained in the home as the utility company had turned the gas off on September 23, 2008.”
....
“By the writing of this letter, we do not waive any of our rights or any of the terms, conditions, or provisions of the insurance policy, all of which are expressly retained and reserved. Further, any activity on our part by way of investigation, determination of damage, or emergency advance payments to you, does not constitute a waiver of our rights. We understand you are retaining your rights as well.
“We are closing your file at this time. If after reviewing this letter and reading the policy language, you believe there is additional information that would apply to your claim, please provide [Brubeck] with those facts for consideration.”
In response to that letter, Weber provided Brubeck records from WaterOne that indicated the water had been shut off to Weber's home on September 15, 2008, so Brubeck reopened Weber's claim for further investigation. At that point, Brubeck believed the claim might be covered since Weber had taken steps to shut off the water. After a roundtable review, however, Brubeck and his supervisor ultimately determined—without any further inspection of the home—that Farmers would still deny Weber's claim because it was obvious that the main shut off valve in the home was not turned off and the water lines had not been drained; otherwise, there would have been no way for the water to get into the home.
A second letter denying the claim was sent to Weber. Most provisions of this second letter mirrored the February 24 denial letter except a portion of the second paragraph. That paragraph read:
“During the inspection, Claims Representative John Brubeck observed extensive water damage to the majority of the home. He determined that a frozen pipe caused the loss. He also determined that heat had not been maintained in the home as the utility company had turned the gas off on September 23, 2008. Upon your request the claim was reopened due to additional information regarding the water supply being turned off. The additional information revealed that you did request to have the water turned off to the home in September. However, the main valve to the home was not shut off allowing the water to enter the home. As stated above reasonable care was not taken to maintain heat or shut off the water supply at the main valve therefore our original decision stands.”
Upon receiving this letter, Weber decided that it would be “futile” to have any further contact with Farmers, and this lawsuit ensued.
The jury was instructed on Farmers' theory of its defense and given a special verdict that asked the jury to answer two questions related to that theory.
The jury was instructed that Weber bore the burden of proving her claim that she was damaged due to Farmers' breach of contract by refusing to pay for her water loss under the insurance policy. The jury was also instructed that Farmers bore the burden of proof on its claim “that the plaintiffs water damage is not covered because, after having the gas heat turned off, she did not use reasonable care to shut off the water supply and drain the system.”
The jury ultimately decided questions given in a special verdict in relation to that defense as follows:
“1. Do you find that the plaintiff, either acting herself or through her son Robert Weber, used reasonable care to shut off the water supply to 7411 Birch?
“Yes X No
“Proceed to question 2 only if you answered ‘yes' to question 1.
“2. Do you find that the plaintiff, either acting herself or through her son Robert Weber, used reasonable care to drain the system of water at 7411 Birch?
“Yes No X
Weber appeals the verdict and her first three issues on appeal take different approaches in seeking relief from the giving of, and the jury's answer to the second question. Her final issue challenges Farmer's counsel's closing statement.
Analysis
The trial court did not err in instructing the jury to decide whether Weber used reasonable care to drain the plumbing system of water.
In her first issue on appeal, Weber contends Farmers never based its denial of her claim on a failure to use reasonable care to drain the plumbing system of water, so the trial court erred in instructing the jury on that defense. Farmers responds that the trial court properly instructed the jury because Farmers explicitly stated in both of its denial letters that Weber's failure to use reasonable care to drain the system of water was part of the basis for its denial of Weber's claim.
Different standards of review potentially apply to Weber's allegation of instructional error. We review the propriety of the special verdict questions for an abuse of discretion. Wenrich v. Employers Mut Ins. Co., 35 Kan.App.2d 582, 593–94, 132 P.3d 970 (2006); see also Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 472, 819 P.2d 1192 (1991) (whether to submit a special verdict form or instruct the jury on the law and how it applies to each count is within the trial court's sound discretion). A judicial action constitutes an abuse of discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). On the other hand, we have unlimited review of whether the instructions accurately and fairly stated the law as applied to the facts of the case. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 417–19, 228 P.3d 1048 (2010).
Our role on review is undisputed. A trial court must instruct the jury on a party's theory, “if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.” Puckett, 290 Kan. at 419. We apply this same standard in determining whether this instruction on Farmers' theory of defense related to Weber's actions in draining the system of water should have been given. See 290 Kan. at 419.
Weber's position on this issue is grounded on that fact that “[w]hen an insurer bases its refusal to pay upon specific grounds it cannot thereafter defend on any other or additional grounds of nonliability not referred to in such refusal to pay and of which it then had knowledge.” Pacific Indemnity Co. v. Berge, 205 Kan. 755, Syl. ¶ 4, 473 P.2d 48 (1970). Stated another way, an insurer that fails to mention a particular ground that it knew about in denying the insured's claim waives the right to later assert that ground in its defense at trial or on appeal. 205 Kan. at 767.
The dispute here centers around whether Farmers' denial of Weber's claim prior to trial was ever based on her failure to use reasonable care to drain her home's plumbing system of water. If not, then Weber is correct that Farmers was not entitled to an instruction on that theory of its defense.
We find that Farmers did base its denial on Weber's failure to use reasonable care to drain her home's plumbing system of water. In so finding, we needed to look no further than each of Farmers' denial letters. To reiterate, the first paragraph of each of those letters stated, in pertinent part:
“Unfortunately, water damage resulting from a frozen pipe when reasonable care has not been taken to maintain heat in the building or shut off the water supply and drain the system of water is uninsured or excluded from coverage under your policy. For that reason, we are unable to compensate you for any damages or repairs incurred.” (Emphasis added.)
Weber suggests, however, that it is improper to look to this paragraph because it simply paraphrases the policy language later repeated in the letter, or, as she puts it, merely informed Weber, “ ‘[w]e are denying coverage and here's what your policy says.’ “ Instead, Weber maintains that the actual bases for Farmers' denial of her claim appear only in the second paragraphs of the denial letters, which omit any reference to draining the pipes. We disagree. As found by the trial court in denying this same argument, the second paragraph “reports the factual results of the examination, as opposed to the reasons coverage was denied,” which is found in the first paragraph.
Weber also argues that because Brubeck, Farmers' claims representative, acknowledged that whether or not the system was drained was never a focal point of his investigation and because Farmers did not actually investigate the proper drainage of the system by speaking to Robert or otherwise, it could not deny the claim on that basis. But this argument misses the mark. Whether Farmers could defend on this theory at trial, and, by extension, whether the trial court could so instruct the jury, depends on the basis of Farmers' denial of Weber's claim as relayed to Weber, not the specific direction that Farmers' investigation of that claim took. Regardless of what Brubeck may or may not have specifically focused upon during his investigation or what information was exchanged in his verbal interactions with Weber during that investigation, the fact remains that Farmers twice denied Weber's claim in writing in part because reasonable care had not been taken to maintain heat in the building or shut off the water supply and drain the system of water.
Moreover, Weber overlooks the fact that Brubeck explained at trial why her failure to drain the plumbing system of water was not a focus of his investigation. Specifically, Brubeck testified that while this was indeed one basis for the denial of Weber's claim, he did not focus his investigation on what efforts had been made by, for example, examining the main shutoff valve inside the home, because any efforts made were obviously improper or the water would not have gotten into the house. Thus, the mere fact that Brubeck's investigation was not focused upon efforts made to drain the system did not warrant pulling the issue from the jury. Rather, as explained below in addressing Weber's third issue on appeal, it was up to the jury to weigh the evidence and assess credibility in deciding whether such efforts were actually made by Weber and in considering Brubeck's assessment of any such efforts.
Accordingly, we find the trial court properly instructed the jury on Farmers' defense theory that Weber had not used reasonable care to drain her home's system of water.
The jury's answers to the special verdict questions were consistent.
In her second complaint related to the jury's answers to the special verdict questions, Weber argues that even assuming it was proper for the trial court to submit the second question to the jury, she should receive a new trial because the jury's answers to the special questions were inconsistent.
Special verdict forms are designed to obtain the jury's answers to questions of fact while limiting its knowledge as to whether its findings will benefit one side or the other. Rohr v. Henderson, 207 Kan. 123, Syl. ¶ 1, 483 P.2d 1089 (1971). Our role here is to determine whether the jury's findings on each matter submitted in the special verdict are logically consistent. 207 Kan. at 130; see K.S.A. 60–249, We will not reverse a jury verdict due to a perceived inconsistency unless the verdict cannot be reconciled in any rational manner. See Rohr, 207 Kan. at 130 (citing A & G Stevedores v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 [1962] ). And finally, we review the trial court's denial of Weber's motion for new trial for an abuse of discretion. See City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007).
Weber's argument that the jury's verdict was inconsistent is based on evidence presented at trial that her home's plumbing system was capable of holding about 60 gallons of water and that 508,000 gallons ultimately entered her home. In a nutshell, she argues that it necessarily follows from the jury's finding that she used reasonable care to shut off the water that the jury also believed that she used reasonable care to keep the extra 507,940 gallons of water out of her home. Thus, Weber contends that “[i]t is inconsistent for the jury to have not awarded Weber any insurance proceeds when they found she used reasonable care to keep at minimum 507,940 gallons of water out of her home.
Farmers counters that the trial court correctly determined that the jury in this case could answer the two questions independently of one another. Farmers' argument continues that even if the jury found both Weber's and Robert's testimony to be credible, “it might have determined that calling the water company, which handles these matters on a routine basis, was reasonable, whereas delegating the duty to drain the system to the son, never checking on his work, and the method he employed were not reasonable.” Farmers reasons that the jury could have found that if Weber (or Robert) had tried to drain the system, they would have realized the water was on and could have called the water company to tell them they had not turned it off.
We agree that Weber's duty to use reasonable care to turn off her water and her duty to use reasonable care in draining her system are two different duties under the policy, requiring different actions. So the trial court did not abuse its discretion in denying Weber's motion for new trial upon concluding the jury's findings on the two questions were not internally inconsistent.
There was sufficient evidence from which the jury could find that Weber did not use reasonable care to drain the system of water.
Weber argues in her third issue that the trial court erred in denying her motions for judgment as a matter of law and motion for new trial because, “Farmers failed to show that its exclusion applied and the verdict was, therefore, against the weight of the evidence.” Rather, she contends “[a]s a matter of law, reasonable care was used to drain the plumbing system,” and the jury could not have reasonably drawn any inferences to the contrary.
Weber's argument is a challenge to the sufficiency of the evidence to support the jury's finding that she did not use reasonable care to drain the system of water. Whether she exercised reasonable care is a question of fact. See Sail v. T's, Inc., 281 Kan. 1355, Syl. ¶¶ 2–5, 136 P.3d 471 (2006). In reviewing for evidence to support the jury's finding, we must consider the evidence in a light most favorable to Farmers as the prevailing party on this question. See Unruh v. Purina Mills, 289 Kan. 1185, 1196, 221 P.3d 1130 (2009). We must also, “accept[ ] as true the evidence and all the inferences to be drawn from it which support or tend to support the finding[ ], verdict, and judgment below, while disregarding any conflicting evidence or other inferences that might be drawn from the evidence.” 289 Kan. at 1196. Accordingly, “[i]t is of no consequence that contrary evidence might have supported different findings if believed by the jury.” 289 Kan. at 1196.
Weber first argues that there was no evidence or suggestion that the water was turned back on by Weber or at her request after she called WaterOne to turn off the water in September 2008—an action the jury found reasonable by answering yes to the first question. Weber also argues that the jury's finding that she did not use reasonable care to drain the system is against the weight of the evidence because Robert's testimony about how he caused the water to drain out of the system by turning on the faucet in the bathroom was unrefuted, and Farmers gave the jury no reason to disbelieve his testimony.
But, as previously stated, we are required to view the evidence in the light most favorable to Farmers. The jury, as the fact finder as to the reasonableness of Weber's actions, could very well have found Robert not to be credible given his lack of expertise and his failure to conduct any research on how to drain a plumbing system. Or it could have found based on evidence offered through other witnesses about the proper way to drain a plumbing system of water—which included additional steps not taken by Robert such as draining the toilets and turning on all faucets on both the highest and lowest level of the home—that his methods were unreasonable. Weber's suggestion that “[i]t is not a universal truism that the only way a plumbing system can be drained is if water sources at the bottom level and top level are turned on, especially in light of [Ronnie] Robertson's testimony [that the system could theoretically be drained by turning on only a faucet on the lower level despite the lack of pressurization]” only drives home the point that there was sufficient evidence offered at trial for this to be a question of fact to be resolved by the jury and not disturbed by this court on appeal.
Weber further contends in support of her position on this issue that WaterOne's representative, McCauley, offered unrefuted testimony that after turning off the water at the curb box, she turned on the outside faucet and did not recall any water coming out, which, according to Weber, “demonstrated that there was no water in the plumbing system, which is the purpose behind draining the system.” But the jury might not have found McCauley credible because she admittedly did not specifically remember opening up the outside faucet at Weber's home. Rather, she merely testified that she likely did since this was her standard protocol.
Weber's remaining argument on this issue is also unavailing. She contends that the losses she sustained from the 500,000–plus gallons of water that entered her home, “resulted from the fact that the water was turned back on at the exterior shut-off valve and had nothing to do with whether the plumbing system was drained” since her plumbing system held only 60 gallons of water. As explained above in response to Weber's second issue on appeal, Weber's reasoning is flawed. As Farmers points out, “[t]he jury's determination that [Weber] used reasonable care to shut off the water does not mean that the water was actually shut off; it merely means that [Weber's] efforts to have [the water] shut off were reasonable, as required by her insurance policy.” The jury could have, for example, found that if Weber had used reasonable care to drain the system of water, it might have revealed that the water had not been shut off because the pipes would have never drained dry.
Viewing the evidence and all reasonable inferences that can be drawn from that evidence in a light most favorable to Farmers and disregarding all contrary evidence, we reject Weber's contention that the jury's factual finding that she did not use reasonable care to drain her home's plumbing system of water was against the weight of the evidence.
Weber waived any objection to Farmers' counsel's closing argument by failing to contemporaneously object.
Weber's only issue on appeal that does not focus on the special verdict is her fourth and final issue, which involves a challenge to allegedly prejudicial comments made by Farmers' counsel during closing arguments. Before discussing this issue, a review of the complained of comments is necessary.
The thrust of Farmers' argument to the jury was that its policy with Weber insured against only reasonable risks, and Weber did not use reasonable care to secure her unoccupied home from sustaining this type of water damage. In step with that theme, Farmers made the following argument that Weber now complains about:
“This is not just some attempt to avoid paying damages, ... These clauses in these insurance policies are not some evil thing just to get out of paying. They're looking at the risk so that all of us bear a certain risk. And that's what our premiums are based on. And if the insurance company has to assume unreasonable risks, then all of our premiums go up.” (Emphasis added.)
We note that this was the only reference made to premiums and was made early in a rather lengthy closing statement.
According to Weber, the emphasized reference to an increase in insurance premiums was irrelevant, was unsupported by the evidence, and injected an issue larger than that before the jury— i.e., whether Farmers owed coverage to Weber. She summarily contends that she did not receive a fair trial as a result.
Farmers responds that Weber cannot now complain about its counsel's closing argument because she failed to lodge a contemporaneous objection. The district court agreed this lack of an objection was “fatal” to Weber's claim but nevertheless addressed and denied it on the merits.
Almost 40 years ago, our Supreme Court held that misconduct during closing argument in a civil case is not available as a basis for reversing a judgment in the absence of a contemporaneous objection and request for a curative instruction from the court. See, e.g., Siler v. City of Kansas City, 211 Kan. 258, 505 P.2d 765 (1973); Borggren v. Liebling, 198 Kan. 161, 165, 422 P.2d 844 (1967). Another panel of this court recently concluded that this remains good law in civil cases despite the Supreme Court's finding to the contrary in criminal cases. See Daffron v. Mesker, No. 103,507, 2011 WL 1878010, at *5 (Kan.App.2011) (unpublished opinion); see also State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (holding that in criminal case, prosecutor's statements during voir dire, opening statement, or closing argument will be reviewed on appeal in absence of objection).
But since Siler, our Supreme Court has occasionally departed from this rule and held that even in purely civil cases, allegations involving improper statements made during closing arguments may, under limited circumstances, be reviewable on appeal even if there was no contemporaneous objection. See In re Care & Treatment of Foster, 280 Kan. 845, 854, 127 P.3d 277 (2006) (citing Smith v. Blakey, Administrator, 213 Kan. 91, 96, 515 P.2d 1062 [1973] ). A close review of Blakey reveals, however, that such review is limited to circumstances where the challenged remarks of counsel involves repeated and material errors that permeate the whole trial and clearly result in prejudice such that appellate review is permissible in the interest of justice. Compare Blakey, 213 Kan. at 95–96 (improper comments by plaintiff's counsel not isolated but frequently repeated and permeated throughout whole trial warranting departure from general rule that appellate court will not consider reversal in absence of contemporaneous objection) with McKissick v.. Frye, 255 Kan. 566, 587, 876 P.2d 1371 (1994) (lack of objection during closing argument prevented review because challenged comment was not repeated and circumstances were not sufficiently similar to Blakey ).
We conclude that absent outrageous and repeated conduct by opposing counsel that is not adequately addressed by the trial court, the general rule that a contemporaneous objection is required to preserve a challenge to counsel's argument in civil cases is still good law. We are therefore duty bound to follow that rule. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Farmers' counsel did not exhibit outrageous and repeated conduct during closing arguments. In denying Weber's posttrial motions on this issue, the district court summarily found “[t]here is no showing of passion or prejudice to otherwise impeach the jury's verdict ... [by] misconduct of counsel for Farmers in closing arguments.” The court found that even when focusing on the one sentence of argument that Weber now focuses upon in this appeal, “the argument does not rise to the level of being prejudicial.” We agree. Farmers' counsel was not, as Weber contends, predicting or threatening that a verdict in Weber's favor would raise the jurors' insurance premium rates. Rather, Farmers' counsel was arguing about why the policy requires that Weber take reasonable steps in winterizing her home. Simply put, in her brief argument on this issue, Weber has not shown how these remarks by Farmers' counsel materially distracted and hindered the jury from returning an impartial verdict, and she certainly does not allege misconduct of such a nature as would require us to overlook her failure to object and ask for a curative instruction.
Conclusion
This was certainly an unfortunate incident for Ms. Weber. It is not hard to imagine the horror she felt as she discovered the significant damage that water did to her home. But she elected to submit her case to a jury for determination of whether her home owner's insurance policy covered her loss and after considering all the evidence, the jury ruled against her. We cannot substitute our judgment for that of the jury. We only examine the trial for errors committed by the judge or jury that warrant a new trial in front of a different jury. We found none. Accordingly, Weber is not entitled to a new trial or a judgment as a matter of law.
Affirmed.