*1 of The standard of review kept, and where the failed this Court. ings was board or this Court is whether commis- specific con findings to of fact and make arbitrary capricious.3 is sion’s action and based, upon its decision was clusions which 213(a). While the Bar Commission Rule How procedural process due was denied. expressly Bar Rules do not Commission ever, that does not establish that the mere require findings to of the commission make findings fact conclu failure make of upon permission ruling petition fact in a for law have been a con sions of alone would examination, to take the bar the absence In process due violation. stitutional findings such makes difficult make Trustees, later case Bowler v. Board of arbitrary capricious analysis. If the 537, (1980), 101 Idaho 617 P.2d merely whether there was standard majority opinion, in Court relied on this support evidence to the Bar substantial said, require process does not “[D]ue decision, as is the case in a Commission’s every decision statement of reasons for verdict, jury’s review of a I would vote liberty or interest.” affecting property There evi- affirm this case. is substantial 543, at 847. Numer 101 Idaho P.2d support Bar con- dence to Commission’s in in examples judicial process ous exist However, clusion in this case. where the are without the bene which decisions made arbitrary capri- standard of review fit findings of fact and conclusions cious, necessary a statement of reasons law, pro and no violation of constitutional carry properly for order this Court to process due results. This Court cedural appellate out its review. Osburn, 104 Idaho held State v. ul- Accordingly, believe that under our (1983), findings and reasons P.2d 1111 authority for the supervisory timate admis- sentence, imposition particular for the of a practice sion to before the bar of “mandatory.” In although helpful, are not Court, appropriate it is for the Court fees, awarding attorney our the area findings require of fact in order that require findings own rules written for an may perform the better evaluation attorney I.C. award of fees under required by Rule Bar Commission’sactions 12-121, 54(e)(2), when but not I.R.C.P. § 213(a). re- Accordingly, I concur pursuant to attorney awarded fees are to the Bar Commission mand of this matter Code. Devine v. other section of for its decision. to set out reasons 1, 4, 110 Idaho 713 P.2d Cluff, un (“[Fjindings required are (Ct.App.1986) 54(e)(2)only a court awards
der Rule when 12-121.”).
attorney pursuant to I.C. fees § involving some
Finally, juries decide cases
most
decisions made
critical
entire PACHECO, Plaintiff-Appellant, Wilford findings required to make constitutionally v. of fact. OF INSURANCE COMPANY SAFECO the Ida- Board of Commissioners AMERICA, Defendant-Respondent. Bar, processes and rules ho State when 16993. No. the bar upon petitions admission take for examination, promul- operates under rules Idaho. Supreme Court of which, ap- by it when gated proposed July 1989. Court, the standards proved by this are Rehearing Denied Oct. 1989.* the bar applicants which admission applicants If are evaluated. of this Court rules, set out
meet the standards by order practice law admitted
they are determining 1979), disregard or without (5th of facts Dictionary ed. defines 3. Law Black’s arbitrary capricious principle.” the ”[c]haracteriza- by an adminis- or action taken tion of a decision * Dissenting opinion rehearing meaning will willful on denial of agency court or inferior trative published. consideration unreasonable action without *3 Webb, Burton, Carlson, & Pedersen Webb, Falls, Kugler B. Law and John Twin Offices, Pocatello, plaintiff-appellant. for argued. Kugler Lloyd B. John J. Webb Wood, Telford, Falls, Stephens & defendant-respondent. Alan C. Ste- for phens argued.
HUNTLEY, Justice. against filed bad Pacheco suit claim for fire insurance faith denial his defended, contending proceeds. Safeco responsible for intention- that Pacheco was setting the fire. The found for ally judg- filed motion for Pacheco Safeco. verdict, notwithstanding which ment appeals by the court. was denied evidentiary grounds. and other January approximately On $200,- fire caused over an arson 3:45 a.m. damage Benito to Wilford 000 worth Falls, office in American Pacheco’s dental fire, Pacheco day before the Idaho. On boxes his office and removed several closed supplies and at least paintings two and was less than the loss he sustained in the took them home where he stored them fire. witness for Pacheco testified that family his patient room. Pacheco treated a Pacheco would not have set the fire himself night at his office that and was in his office hanging because he had office a until p.m. 9:00 painting drinking of a fawn from a stream given dying patient. that was to him a Pacheco’s truck was seen across the That painting” up “sentimental showed street from his dental office at about 1:30 photograph by police or 2:00 evidence in a January noted, a.m. on taken 1986. As the fire occurred at 3:45 items discovered in a.m. The authori- the basement of *4 ties determined that the fire by Pacheco’s days caused house a few after the fire. poured an arsonist who through accelerant presented testimony that Pacheco a hole which had been cut from Pacheco’s had been in prior financial straits side of building through adjoining fire. presented Safeco also evidence that wall of the next door business offices. day after the fire Pacheco went to IB & Gasoline and diesel fuel were found on the T in paid American Falls and two delin- premises gas matching cans the de- quent IB & T loans with a check dated scription gas cans by owned Pacheco 29th, December but which had a numerical were found at the fire scene. After the sequence number that followed the num- fire, Pacheco filed an insurance claim with bering on checks he had written on Decem- carrier, his fire Safeco, insurance which 31, ber 1985. denied coverage. Olmsted, John investigator” “senior for complaint Pacheco filed a for recovery Investigative Bureau, Idaho Service loss, under the policy, for the for other primary was the testifying witness in sup- damages (including a bad faith refusal to port of Safeco’s defense that Pacheco set insure, defamation), emotional distress and the fire. objection, Over Pacheco’s the tri- for attorney fees and punitive damages. al permitted court testify Olmsted to about Safeco answered denying Pacheco’s claims investigation his opinions of the fire and he and raised the following affirmative de- during reached investigation. that Ulti- fenses: since Pacheco intentionally had set mately, permitted the court Olmsted to tes- fire, Safeco had no contractual obli- tify that he considered the suspects” “chief gation or, pay; alternative, public investigation the arson to be Pacheco policy estop would Pacheco obtaining and his wife. Pacheco moved for a mistrial payment under the circumstances. On Jan- and the trial court denied his motion. Olm- 5, 1987, uary granted the court Safeco’s sted then testified that it duty be summary motion for judgment on Pache- charge person with arson if he believed co’s punitive claims for damages and emo- adequate that he had an against 13, tional February 1987, distress. On person. At the time of the trial no one had granted court Safeco’s motion for summa- charged been arrested or crime ry judgment on Pacheco’s claim for def- connection with the fire. Safeco was also grant amation but summary refused to permitted to introduce evidence that Pache- judgment on the stating bad faith claim co had sustained a fire loss 1982. This Co., Unigard White v. 112 Mut. Ins. evidence was received over strenuous ob- 94, (1986) 730 applica- P.2d 1014 jection. ble and based on that it would consider Pacheco’s claim of bad faith to be parties presented After the their evi- though an issue for trial even it would not dence, requested Pacheco the trial judgment amend dismissing punitive its jury court instruct that each of the damages. The court noted that the thresh- prov- elements Safeco’s defense must be proof old level of was somewhat less for convincing en clear and evidence. The punitive bad faith damages. than for adopt trial requested court did not trial, presented testimony
At Pacheco instruction but instead jury instructed the coverage $189,000 that his insurance only need find the elements of Pacheco, standard by preponderance discuss Safeco’s defense raised appellate evidence. review. proposed in- Pacheco also submitted two required to more show relating to evi- structions circumstantial error; error. prejudicial than he must show sug- dence. One instruction would have Otherwise, pre any error will be below gested jury that circumstantial evi- Thompson, Viehweg v. sumed harmless. something must be more than that dence (Ct. 269, 311, P.2d 103 Idaho suspicion plaintiff. which casts a on the presumed App.1982). Prejudice will not be suggest- The other instruction would have Clark, Dodge Inc. v. appeal. Boise See culpa- ed found that Pacheco could not be (1969). 92 Idaho P.2d ble if the circumstantial evidence was improp Where the is the admission of issue susceptible opposite conclu- equally evidence, will con er such admission Ultimately, sion. the court refused both compe if is other sidered harmless there proposals and instead used standard upon tent evidence to same effect IDJI on the differences between instruction the same result. which could reach *5 direct and circumstantial evidence. Wells, 100 First v. Idaho National Bank appeals found Safeco. Pacheco 256, 429, (1979). 262, 596 435 P.2d admitting in claiming that the court erred ample Here there circumstan investigator’s testimony, the criminal evi- evidence, than tial and testimonial other investigation, of the evi- dence criminal investigator’s testimony, that the criminal previous fi- of a fire and Pacheco’s dence could led the had the same effect and alleges re- nancial status. Pacheco also the This jury to same result. evidence proof error in the standard of uti- versible (1) The in Pacheco’s wall includes: hole lized, juror jury instructions and miscon- through poured; which the accelerant was duct. situation; (3) (2) Pacheco’s financial street discovery gas of his cans across the I. office; smoldering of his from the remains of The Admission Criminal day (4) closing of his Pacheco’s office Testimony Investigator’s (5) fire; removal of Pacheco’s before first the trial court claims that Pacheco and sentimental items various valuable investigator allowing in the criminal erred fire; before the day his office from his testify identity prime to the and, (6) after pre-dated check tendered opinion that suspects and as to his fire. argues this set fires. He testimo- being preju In no addition there prejudicial in ny highly was irrelevant error, investigator’s of the dicial admission improper implication of created an it complied require testimony with the also civil guilt permeate a trial criminal 703, 702, Evidence of Idaho Rules of ments 632, 639, (State Owens, 101 Idaho v. carefully 705 in that he described 704 and 794, 787, (1980)); incompetent P.2d his upon he when stated the evidence relied (Fowler-Barham Ford Indiana Lum- v. the fire. as to the cause of Mutual, N.C.App. bermens Furthermore, testimony (1980); Olmsted’s per- that it 828-29
S.E.2d Safeco issue of whether was critical to the give legal conclusion. witness to mitted a defining law “bad in bad faith. The inappropri- acted argues that it was Pacheco also estab faith,” in such as this was cases permit the investi- trial court ate for the Co., Mut. Ins. Unigard v. issued lished White refer a search warrant gator to (1986) which P.2d 1014 112 Idaho in the course against Pacheco’s residence months about one-and-a-half investigation concerning the was decided of the criminal Therefore, began. when before trial fire, that Pacheco arguing that fact tried, had to assume Safeco the case was did lessen actually arrested never was pertained. the rule stated White admitted evi- improperly impact rule is: addressing the issues That Prior to dence. admitting evidence failing immediately settle court erred the mere ... Pa- particular, In investigation. criminal proves to a valid claim does
what later
be
it admit-
erred when
claims the court
checo
establish ‘bad faith.’
not of itself
of evi-
to items
testimony pertaining
ted
‘in-
must show the insurer
insured
[t]he
Pache-
had been removed
dence which
tentionally
unreasonably
denies or
found
prior to the fire and were
co’s office
omitted).
(Citation
delays payment____’
search
of a
in the course
basement
faith when
An insurer does not act
bad
Regarding the
pursuant
to a warrant.
challenges
validity
‘fairly
de-
origi-
warrant,
Pacheco who
it was
search
claim,
delay results
or when its
batable’
of the search
nally introduced evidence
(Citations omit-
from honest mistakes.
presented
later
and when Safeco
warrant
ted).
search warrant Pacheco
evidence of the
court by Pa- originally introduced the 1982 fire was also claims testimony, Pacheco tigator’s Later, this, in his in company checo chief. Pacheco as the insurance re- where agreed pay the could come fuses an evidence insurance claim the ground under Safeco’s defense to bad faith claimant was an incendi- Once ary, company claim. that evidence was introduced of has burden show- Pacheco, by prohibition evidence, rule ing, by preponderance then of by law cases cited Pacheco did not the claimant set the fire. The claimant's Therefore, apply. proper highly evidence was financial status relevant to the ly argues that admitted. Safeco this Court issue of motive. Lawson v. State See change pertaining Co., should to this Casualty law Farm 41 Colo. Fire Ins. issue, Pacheco, opt (1978). Therefore, for the App. cited P.2d expressed by admitting “better rule” as the court the trial court did not err in Rutledge concerning v. Paul Ins. St. Fire & Marine information Pacheco’s finances. Co., 131, 137(App. 286 S.C. S.E.2d
1985) in which the court stated: V. Still, we think better rule is that The for Required Standard Proof fire and settle- evidence of another Affirmative Defense on Refusal arising ment therefrom is relevant to the to Insure intent, issues the insured’s motive
knowledge irrespective of whether the claims trial court Pacheco erred incendiary. fire other had instructing that Safeco (that prove defense its affirmative argues courts should allow fraud) by preponderance committed fires prior evidence arson cases .civil the evidence rather than clear con requiring without evidence that the insured vincing ap evidence. Pacheco submitted present set them. Safeco fails to com- propriate instructions court pelling change reason to the law as it now test, convincing application of clear reasoning exists in The Paul Idaho. St. rejected. wrongly and asserts were unpersuasive. Fire Marine Ins. & Co. King, Pacheco cites v. 100 Idaho Smith point prior may fire that evidence of *7 217, (1979) 331, 334, P.2d and Car in a be indicative motive and/or intent 155, 162 Co., 284 penter v. Ins. F.2d Union fire, regardless it was later of whether (4th Cir.1960) support of this contention. proven that the first fire was set even arsonist, unpersuasive. particularly rule in majority The is that an We adhere to the that such evi- company prove its affirma surance must legally logically irrele- dence is both pay a fire claim tive defense refusal vant. by preponderance a evidence. God America, v. Co. win Farmers Ins. IV. 571, 416, 418-19, Ariz. 631 P.2d 573-74 Testimony
Admission of
That
(1981).
follow
The trial court chose to
Pacheco Was in Debt
rule;
majority
not err.
It should also
although
original
com
argues
that the financial be noted
fraud,
must
plaint alleged
and fraud
to an
are
party
circumstances of
action
evidence,
convincing
irrelevant,
by clear and
Meagher
proven
immaterial and
v. Gar
(upon
(Nev.1964).
complaint
which the
vin,
He
the amended
511-512
391 P.2d
tried)
allege fraud. The
indicating
did not
argues
case was
also
law
actually
on a breach of
mo
case was
tried
proof
insolvency can
be relevant
theory,
of contract is
runs
contract
and breach
claim context
tive
the fire insurance
evidence,
preponderance proven by
Pa
contrary basic rule of evidence.
this
convincing
evidence.
thriving practice
clear
claims that he had a
checo
policy stated that the insur
was,
fact,
terms of the
underinsured.
and that he
if
insolvency
pay
someone
Thus,
alleged
company
ance
the evidence
policy
lan
property;
his own
incorrect,
being totally irrel
burned
as well as
of dis-
clearly
the defenses
guage
includes
highly prejudicial. In cases such
evant
jury
alleged,
honest and criminal acts in addition to the
misconduct is
there
When
Finally, public policy
showing
prejudice.
defense of fraud.
v.
must be
Black
recovery
would not allow
under a contract
the returned a questions further to answer. VII. filed At the conclusion of the trial Safeco Jurors and
Contact Between Witnesses expenses bill for and at- an extensive cost expert Finally, torney Pacheco claims that the fees. It asked $2610.86 behalf, testify in prosecution’s the witnesses called to its fact that one of witnesses This list of juror listing a in his car so nine such witnesses. gave a three block ride a John expert case as witnesses did not include prejudiced the determination of this Idaho, Olmsted, of employee of the state to demand a new trial. Department eliciting opinion of Enforcement. This in Law and answers tions apparently voluntary jurors man would be an wit- couched not front the were upon testimony relating telling opinion, ness whose Safeco would jury his its defense Pacheco’s civil action to base to a opinion he had delivered Safeco policy. recover on his Safeco fire insurance employee. On the witness stand he would be allowed so Keeping in mind that this conclusion to which he drew to state conclusion based on painstakingly arrived at was person responsible for the fire. More- information, mostly hearsay many bits of over, he be to include in his would allowed others, pres- to which we will statements reasoning process much which was turn, way ently here is the the conclusion clearly objectionable hearsay, and which dramatically forth to the brought itself was objected to. jury: The conclusion he would state which Q you rely did on this informa- And supposedly nonpreju- would be couched coming tion this conversation in phraseology, dicial but nevertheless you opinion just asking I about? that was a verdict could do otherwise but direct Yes, A I did. plaintiff Whereas against Pacheco. Q Now, April you prior did ever wanted Mr. Olmsted Safeco’s counsel 7th, 1986, opinion tell Peterson what Al opinion his Pacheco was the cul- state regard you had with formulated
prit property, his the trial who torched own suspect? chief judicial in a discre- court faint exercise A I’m sure that did. colloquy announced at a between court tion taking Q you arrive at place opinion and counsel outside And what did that, no, jury suspect? can- chief presence regard Olmsted The give that answer. rationale for objection MR. our should WEBB: And opinion ruling court’s was that such an previously artic- be noted for reasons jury— province would invade ulated, Your Honor. assuredly which it would done. most objection is THE The noted. COURT: Nevertheless, opinion same Sir, please question. answer presented jury, al- nevertheless explain it? A ICan slightly language. couched in different beit Q it. Just answer Court, succumbing persistent agaii. question was the What Safeco, the witness contentions of allowed Q have as to you What identity opinion as to the to tell the suspect was that who the chief as used suspect.” “Suspect” “chief Insur- relayed would have noun, accepted is a and has but two here ance? suspected, meanings, namely, “one who is relayed that A I would have suspected of a one who is especially, Patsy Pache- suspect was Wil Dictionary. Collegiate crime.” Webster’s chief co. way into Black's Law It has also found its *9 ed., Dictionary, person reputed 5th “[a] perfunctory, plaintiffs' objection was The Ar- in crime.” suspected be involved previ- had The court just for record. the course, designat- son, is a To be of crime. the Olmsted limine that ously ruled in being equivalent is of suspect chief the ed a Pa- finger guilt at of pointing the opinion likely sus- prime or most designated the More- jury. stated checo could be help but jurors could not pect. Twelve at- over, other frailties irrespective of the hearing from a state they were know that opinion Olmsted allowing the in tendant it, that he started Pacheco was officer that Mrs. Pacheco as Dr. and fingering both crime of fire, guilty of the that he was discredited suspects, the court chief itself arson. only as Olm- insofar the Olmsted to include far as so overboard doing sted went Moreover, though so as suspect: as a chief ques- Mrs. Pacheco palatable, the it more somehow make only overly counsel think Not was Safeco’s THE But don’t based son. COURT: improper his direct exami- investigation, persistent at least with on Mr. Olmsted’s nation, to, overly he any there is but was successful. what he testified reputedly very one of the best judge, Pacheco such to trial implication with Mrs. Idaho, had exten- give an and one who give him the foundation to such southern did, attorney, though obviously experience as a trial was opinion as he even sive by the ar- simply Dr. certain- overwhelmed bombastic she’s Pacheco’s wife. She’s wife, gument at him Safeco’s coun- ly -just because she’s his she can’t directed — brush, painted the same sel. be with might say, attempted that Mr. Olmsted damage Eventually, only after the paint Dr. Pacheco that’s with. So done, great and not erasable was do, I’ll Mr. what Webb. attorney limited eyes of trial of even court realized that too experience, the trial think that some who will There will be After leniency much had been extended. guilt finger pointing the Mr. Olmsted out, jury sent the trial court con- him- Pacheco, believed Mr. Olmsted Mrs. at genuine continuing concern in ceded his much just that defense Safeco’s helping self jury to relate to the what allow Olmsted admitted be- (Even counsel defense more. time, By others had told him. unfor- of Mrs. mention by Olmsted’s ing surprised tunately, objection over strenuous Pacheco.) excerpt, in the above As noted jury to hear from court had allowed Olmsted as at- the court itself observed he and under- Olmsted what remembered implicit- with an tempting paint having per- stood heard from six or seven Quite apparently the ly prejudicial brush.1 presumably sons who were not under oath guilty zeal Mr. Olmsted court saw answering questions. Olmsted’s Even overkill. misgivings, the court announced its when foundation purported Returning to upon urged Safeco still the court time predi- tag as a attempted to which Olmsted again expert gather- time when joint his conclusion for cate information, fact that it is ing such [t]he and his complicity in crime of both Pacheco hearsay meaningless regard opin- place is much of what took wife—because A, Appendix testimony.” ion unbelievable, that the reader it is best so P.2d at 140. Accordingly it will peruse it for himself. position stated his Counsel for Pacheco Appendix A. hereto as found attached be it, hear juries that: The admonition with the testifies to if someone else and even A, Summarizing Appendix the context of differently they still out and it comes truth readily apparent it is counsel Safeco heard the that Olmsted offers version highly over-persistent in his conten- to them. tions that he be allowed to have early in the Testimony given under oath expert jurors tell the witness Olmsted statements of yet repeats trial which unsworn persons other of whom had testi- —none upon a might impact not have much cause—had said to others fied as witnesses enough. attorneys, true objections jury comprised him. Pacheco’s valid went up lay is made long period of time in the But where naught. Over a concep- no people, of whom will have early part formulative of the trial 95% fallacies, jurors hearsay, hearsay and its steady diet of all tion jurors were fed a unring the bell. hardly expected to pointed in the direction of can which was more improper testimony would be substantiating ex- Such cumulatively Olmsted’s *10 opening counsel’s state- damaging than that Dr. and Mrs. Pacheco pert opinion say will (and ment as to what his witnesses suspects no other sus- prime were the they did mentioned) to what closing of dr- as pects were the crime statement argued had opinion. point was that Olmsted court in made in the 1. The court's remark was eyes ju- considering Mrs. Pacheco motion for mistrial di- discredited a Pacheco allowing the Olmsted rors. rected at the error in say. testimony Any plaintiff filing Jurors are advised the ridiculous. a or claim multiple naturally claims will resist witnesses is what matters —not what a dis- And, missal motion. Olmsted tells Mr. counsel them.
a witness. Then, majori- at at the P.2d ty opinion goes as far afield as it has been Finally, evidentiary pernicious as to this experience my to witness: problem, the trial court reached the correct potential conclusion: the Safeco’s counsel foresaw by having conflict could arise to I agree, Stephens, THE Mr. I COURT: present necessary evidence to the issue agree It to me with Mr. Webb. looks of who set the fire and neces- evidence like these witnesses have been should sary question to faith or puni- the bad they jury called first and advise the damages in tive the same trial. There- That be ad- told Officer Olmsted. would fore, on October Safeco moved it, missible, doing of course. But we’re trial, asking for bifurcation of the me, backwards, I it looks to am prior its affirmative defense be tried to procedure. somewhat bothered separate plaintiffs the com- being you, I’m And critical know plaint. scheduling problems have with wit- nothing There is in laudable those two nesses. plaintiff right sentences. A has the to seriously cannot or ar- It be contended presentation of his own case. control the gued juncture the trial otherwise than at this though statement is as The worded aborted, and a new trial should been extending courtesy to so plaintiff inescapable jury It is the scheduled. moving ludicrous, to This is bifurcate. irreparably would have been at that time sign is of mid-summer madness in another prejudiced against Dr. Pacheco. Others opinion writing per- appellate court —which differ, might if do can but one wonder haps protecting we all suffer from jury experi- as of their trial image to extent illustrious which the adminis- Court declared, ence. has the various chief trator speeches. justices repeating prepared contrary, To the Safeco’s motion was II. plaintiff, in order to benefit the made put misconceptions by letting to it on its There are some serious benefit Safeco opinion. plaintiff any At 780 P.2d case before had majority laid out case. (of 42(b), Trials”, opinion captioned “Separate Rule 121: “Even if the evidence Olm- is inadmissible,2 sted) actually opening is lines couched in the it Pa- indeed were convenience, motion, responsible going terms of Safeco’s i.e. who was checo economy strange expedition, and and avoidance jury.” This twist of before is it does not mention prejudice. But what logic said result from Pacheco’s resist- is to to authority in a district court order any Pache- ance to a Safeco motion dismiss plaintiff’s from the claim, causing of a thereby faith Safe- bifurcation co’s bad case, certainly rule makes defense’s lay jury co the information before the defense slightest intimation that not the opinion relayed had Safe- which Olmsted’s ahead of present its case paying may allowed supposed for not justification co as case.3 plaintiff’s This borders the insurance claim. any jury as to the cause to draw conclusion appear to con-
2. would to be tantamount This evidence, entirely circum- opin- the Are which the ceding inadmissibility of stantial, Olmsted opinion Olmsted’s would substantiate. the heart of the issue which ion which went to prime testimony naming sus- decide, Pacheco as Dr. not Olmsted. be for the attorney devastating can (of pect was as trial say, Olm- To "Even evidence if hope never inadmissible, encounter. sted) actually ever were going responsible before the for it who was Separate 42(b) trials. —The damning praise. 3. in full reads: Rule jury" like with faint court, inadmissible, convenience to avoid in furtherance of opinion was admissible or either court, separate will be condu- prejudice, trials or when eventually "these ruled trial and as may economy, order expedition cive called.” It was for should have been witnesses *11 horse, jury proof A horse is a horse is a and a trial as to the burden of on the basis plaintiff puts likewise is a trial. At trial a of a 1981 from Arizona. Godwin case liability damages, on his case of and being follow- Godwin sets the standard as a mere same, which the defendant can do the preponderance of the evidence in a fraud bringing in liability his evidence on case. damages. probably There are instances odds with Huntley, wholly at Justice where those two issues have been bifurcat- care, then makes ordinarily extreme ed, just as now it is that in well-established complaint “original that the the statement potential penalty death cases the issue of grossly in error. This is alleged ...” fraud guilt or innocence sepa- is tried first and that Justice it reads so well Nevertheless rately, separate hearing and a is held as to along in with Huntley has been taken imposition punishment. But, in es- join an are content to justices other who sence it is one trial broken down into original com- The opinionwhich reads well. stages, stage flowing one logically from fraud; it made no plaint alleged no fact other. fire alleged policy mention of fraud. It support filed a of its Safeco brief Pacheco, by Dr. a fire purchased insurance seeking present leave of court to its motion loss, sought to recover excess and fire plaintiff put any defense even before $189,000 policy on the of insurance. Just case, no Idaho for that but it cited Huntley office became so confused how the procedural concept. Mostly novel confusion unknown—and the in this case is ignores Safeco’s motion and brief is that opinion. rampant throughout the and error is “trials” of a are not mentioned defense Huntley quality, say It is the least. mentioned; 42(b); is not Rule bifurcation claims, what is mentioned are trials of tri- may The Safeco brief filed in this Court cross-claims, counterclaims, als of trials of responsible, in that it does not accurate- third-party Lastly claims. and trials of filed, ly portray pleadings which were barely sepa- for a mentioned candidates certainly misportray the although did not rate trial are trials of issues. complaint: Pacheco part
It was innovative on the of Safeco to attempt away Proceedings make the take momen- 2. Course Below plaintiff ordinarily tum which a achieves complaint against Pacheco filed his court, putting on his case. The trial how- willful, 8, 1986, April alleging Safeco on ever, orderly was well conversant with the intentional, grossly negligent and vexa- presented, manner in which trials are part tious conduct on the of Safeco straight ruled in a forward common sense amounting sought puni- faith and bad “THE kind short statement: COURT: It’s damages therefor. He also claimed tive mean, way, rolling crap of a shoot in a damages policy proper- for his under ruling is the dice with the motion.” That loss, interruption ly his loss of business appeal. foregoing not an issue on the R., pp. attorneys’ fees. 8-12. i.e., presented point only, make a how denying its answer Pache- Safeco filed majority opin- far afield the erroneous and raising claims and blaming Dr. Pacheco for co’s ion takes itself in affirmative intentionally that Pacheco motion to bifurcate. Safeco’s ill-starred defense that, there- responsible for fire III. fore, obligation contractual had no estop public policy PROOF pay STANDARD OF or that CORRECT V) claiming payment under (Majority’s Part circumstances. correctly notes Huntley’s opinion Justice court chose to instruct that the trial right of trial claim, cross-claim, ways preserving inviolate any counter- separate trial of Constitutions, claim,
claim, statutes or any separate third-party or of as declared or cross-claims, claims, issue or of number the court. rules of issues, claims, counterclaims, third-party al- *12 ill. complaint on filed an amended willful, 9, 1986, again alleging December defense, defendant anAs affirmative intentional, negligent vexa- grossly duty to contractual it has no alleges that on behalf of Safeco tious conduct under the' plaintiff any monies to pay faith, amounting for loss of to bad claims for the said policy of his insurance terms fees, interruption, attorney’s business fire, that for the reason January and new the contract property loss under by intentionally caused the fire was infliction of emo- for intentional claims plain- by acting with plaintiff others or R., pp. defamation. tional distress and encouragement. tiff’s the amended Safeco answered 53-56. complaint by denying the claims COUNTERCLAIM al- raising defenses affirmative R., ready pp. against 57-60. stated. for counterclaim As and alleges plaintiff, the fol- the defendant Brief, 1-2. Answer Safeeo’s lowing: to referred It is to be noted importance appeal extreme record. Of I. instruction on a correct giving of to the its proving affirmative Safeco’s burden January 1986 the That on or about Defense and Counter- is the Third defenses himself, through the encour- plaintiff or plead in first answer: claim Safeco’s others, intentionally agement caused located to at his dental office
fire occur Falls, Street, I. Ida- Tyhee American ho. defense, affirmative defendant As an plaintiff, part of the
alleges fraud on II. himself, through or plaintiff others, the fire encouragement of caused plaintiff prior the said fire That the 2nd dental office on to occur at his cover- policy of fire insurance obtained a January, with intent to obtain to the said damage fire ing loss due proceeds of insur- from defendant made the said fire office and after dental destroyed in allegedly property ance for payment against policy said a claim fraud, furtherance of said fire. In $189,000. in excess of demands that claims and made he filed him payment defendant make III. $189,000 policy of under the excess of amount to. plaintiff The actions de- plaintiff insurance issued to and have misrepresentation fraud fendant. substan expend the defendant caused investigate the cause tial sums II. itself to defend of said fire and origin defense, defendant As affirmative herein, all plaintiff’s action illegality estoppel. It would alleges damage in the amount of defendant’s public against the illegal, or at least be will amount as be: $50,000 such other Idaho, for this State of policy of the reserves Defendant proven at trial. proceeds pay plaintiff any defendant to al counterclaim right to amend plaintiff’s insurance the terms of under damage prior amounts to. specific lege wherein the circumstances policy under ascertainable. become trial through personally or plaintiff, either fire others, intentionally caused the IV. 2nd of office on the his dental occur in are plaintiff actions That the plaintiff should and the January, a nature and are of fraudulent claiming poli- under that estopped from others1 prevent attempt to should courts cy-
807 and, therefore, plaintiff estopped from claim- acting similarly pu should be from policy. the said damages nitive the under should be awarded to against plaintiff in the defendant the readily It is in the consider- assumed that $50,000 or amount of such other amount intervening time between Safeco’s able appropriate under as would be the cir De- pleadings, first June to and second 16 cumstances. 22, those cases cember research uncovered proved by require
which fraud to be evidence, convincing notably of clear and V. 348, Clement, Gneiting v. 96 Idaho which to required Defendant has been defend one, (1974), 528 is and a case P.2d 1283 against plaintiff’s complaint itself to therein, cited Buick Zuhlke v. Anderson bring this counterclaim and has and will 634, Co., (1972) P.2d 95 94 Idaho 496 attorney’s fees, incur and should be Shepard another. Justice authored both attorney’s its fees awarded reasonable Gneiting, for a court. In Jus- unanimous against plaintiff. and costs Idaho, fraud is held that Shepard tice “[i]n R., (From p. 36 first Answer and Safeco’s presumed, must rather be shown evidence, 1986). Counterclaim, 13, filed June (citing by convincing clear Zuhlke). The adduced evidence ... 22, 1986, On December Safeco filed an highly conflicting and an examination complaint answer Pacheco’s amended persuades thereof that the trial court us (the count, being amendment to add holding Gneiting err in had brief, accurately in noted Safeco’s dis- prove failed to fraudulent conduct above). In pleading cussed this part 96 at defendants.” plead same bad conduct on Pacheco’s 350, P.2d at 528 1285. but, noted, part, using be as will avoided language used, previously namely “fraud” The court this Pacheco trial v. Safeco and “fraudulent”: presented argument contra case was with authority by parties. for both counsel Notwithstanding precedent Idaho case
THIRD DEFENSE
convincing
re-
that clear and
evidence is
I.
conduct,
quired
tri-
prove
fraudulent
opted
go along
with
1981
al court
defense,
As an affirmative
defendant
Arizona,
Appeals
Court of
decision
alleges
no
duty
that it has
contractual
America,
Godwin v. Farmers Ins. Co. of
any
pay
plaintiff
monies to the
under the
416,
In
(App.1981).
129
631
571
Ariz.
P.2d
terms
for the
policy
of his insurance
said
turn,
Court,
goes
through majority,
its
this
fire,
January 2, 1986
for the reason that
along
the trial court’s choice. Unfor-
the fire
intentionally
caused
neither the trial court nor
tunately,
plaintiff
acting
plaintiff’s
byor
others
court,
made
majority speaking for this
has
encouragement.
instance or with
independent
any pretense of
review
which have been submitted.
authorities
II.
instance,
than
For
later
Godwin
Co.,
Casualty
466
Hutt
Lumberman’s
v.
defense,
As
defendant
an affirmative
(1983). Here
through intentionally are caused We question on the have divided in his office on the thorities fire occur dental (see Farm- 1986, and, therefore, collected in Godwin v. January, cases 2nd of 808 Amer., (1979),
ers
holding that the
Ins. Co. of
129 Ariz.
the latter case also
418-419,
571, 574;
Great Amer.
P.2d
alleging
631
has the burden
party
fraud
Inc, K
Log,
Ins. Co. v. & W
Wash.
proving
convincing
clear
evidence.
468, 472,
459;
App.
P.2d
P.2d at 221.
Idaho at
*14
C.J.S., Insurance,
1359,
567-568).
pp.
Gneiting,
§
case
is
action.
before us
a civil
applying
cases
We find those
the clear Zuhlke, and
Smith were
also civil actions.
(e.g. Carpenter
convincing
and
standard
in a
firmly
Those cases
established that
Soc.,
155, 162;
v. Union Ins.
284 F.2d
conduct,
civil action based on fraudulent
Mut.
Ins.
Jonas v. Northeastern
Fire
party claiming
higher
the
fraud has a
bur-
Co.,
353,
44
[347],
171 N.W.2d
Wis.2d
present
ordinary
civil
den than is
the
185, 187,
1)n.
to be more in accord with
fraud.
action where there is no element of
long imposed
New
law
a
York
which has
law,
Godwin
Arizona
the
court
As to
demanding”
"far
a
more
burden when
of
facially instructs us that “the burden
involving
turpi
serious accusation
moral
proof
pre-
in civil
is satisfied
the
cases
(Jo
tude,
fraud,
Ann
such as
is leveled
ponderance
excep-
of evidence.” BUT [a]n
Dworetz,
Homes
v.
at Bellmore
25
rule
be
tion to this
is that
fraud must
112, 121,
799,
N.Y.2d
302 N.Y.S.2d
250
proven by
convincing
clear
evidence.”
and
214;
see Commissioner
Pub
N.E.2d
of
Godwin
The
court
arson,
hay
make
in a civil
rather than this
investigation which
action with a criminal
IV.
dropped
no
initiated and then
has been
SUMMARY
then, later, or ever.
charges brought —not
puts
House-
Today’s majority
its “Good
fire,
the 1982
Regarding evidence of
*16
keeping
Approval” on a common
Seal of
majority opinion,
uphold
while it does
company
insurance
intimidation tactic—
fires will not be
rule that evidence of other
guilty
is
insinuating that its insured
that of
admitted unless it can be established
crime,
doing
only
interjecting
of
so
starting
the claimant was connected with
investigation into
of the criminal
evidence
fires,
v. Northwestern Mutu-
those
Hawks
insured is
action where the
the civil
381,
93 Idaho
461
Company,
al Insurance
seeking
proceeds
to collect the
due on
(1969),
721
nevertheless refuses
P.2d
Testimony as to a crimi-
policy.
insurance
yet
apply the rule of Hawks and worse
having been
investigation
nal
without there
requirements
to the detailed
pays no mind
conviction,
pro-
ensuing
is not
an
trial
Men, Ltd.
of Boise Association
Credit
of
probative
It
evi-
evidence.
is
bative
Compa-
Fire Insurance
v. United States
arrest, citation, or
dence because a mere
249,
(1927).
P. 523
This
44 Idaho
256
ny,
with the
investigation is not inconsistent
prem-
simply on the slender
stance is taken
Billington v.
innocence of the insured.
agreed
Pacheco’s counsel
ise that
634,
(Wash.1953).
Schaal, 259 P.2d
only as hav-
could be mentioned
1982 fire
v.
also Fowler-Barham Ford
Indiana
See
true,
occurred,
it
ing
but without
which
625,
Mutual,
N.C.App.
Lumberman’s
being
that Pacheco caused
inferred
825,
(1980).
allowing
By
828-29
263 S.E.2d
Tr.,
1, p. 21.
fire.
v.
evidence, the
reception
this
court
of
brief,
majority
Parroting
Safeco’s
cloak a civil trial
permitted the insurer to
“once that evidence was
opinion states that
any evi-
innuendo without
with criminal
Pacheco,
prohibition
by
then the
introduced
guilt. This is intolerable.
of criminal
dence
cited
rule of law in the cases
majority opinion
recognize,
as does the
Majority opinion,
apply.”
did not
other
at
at
that there is
780 P.2d
authority
122. No
780 P.2d at
circumstantial,
evidence,
Pa-
though
proposition, and for valid rea-
cited for this
responsible for this
may have been
checo
pro-
majority
son—there is none. The
then
However,
the ultimate result
fire.
requirements
ignore
ceeds to
the detailed
an
only
not the
issue which
given case is
proper proof
previous
of
fires laid down
address. The
court
must
appellate
by a unanimous court Boise Association
perhaps in some cases more
larger, and
Men,
stated:
supra, where it was
Credit
of
rule of law which
important, issue is the
offer,
to em-
this
it is seen
Analyzing
Today’s majority
a case.
issues from
First, that the
propositions:
three
brace
insurance com-
opinion offers a sure-fired
fires;
previous
had
plaintiff Smith had
payment
recipe
of
pany
for avoidance
he
second,
they occurred
that at the time
Only
claim.
with Crea-
a fire insurance
fires, the
causing the
motive for
majority say
had a
clairvoyance can
tor-like
instances;
in all
being the same
testimony was
motive
the admission of
motive,
tending to show
third,
quot
showing or
portion
within the
embraced
them; and the effec-
caused
ed,
pursuance
that Smith
that he caused the fires
depends
therefore
tiveness of the offer
plan;
proof
of all
comprehensive
of a
given
portion
upon the effect to be
propositions
necessary
under
these
to show that
quoted, purporting
of
any theory, to warrant the admission
portion
Smith. This
were caused
offered. The establishment
the evidence
argumentative
the offer seems
be
alone, namely,
proposition
of the second
preceding portion of
conclusion from the
had in each case a motive for
that Smith
tending
evidentiary facts
the offer. No
fires,
causing the
was of course insuffi
other fires were of
to show that
he did cause them.
cient to show that
unexplained origin, or
mysterious or
(State
Elwell, 105 Or.
209 Pac.
v.
incendiary,
could have been
or that Smith
(1922)].)
apply
To
the rule which is
[
fires,
caused or could have caused the
in criminal cases where other
followed
offer
admit-
were offered. Had the
been
sought
offenses
to be established as
are
ted,
complied
defendants could
evidentiary
guilt
the defendant
by merely presenting
that the
evidence
trial,
of the offense for which he is on
occurred,
fires
and that Smith had
other
admissibility
is essential to the
such
them,
causing
a motive for
and without
proof
evidence that
the other
offenses
showing
argued
further
could have
conclusive,
plain,
clear and
must
quoted portion
they did
vague
and evidence
and uncertain
offer,
In
that Smith caused all the fires.
regarding
character
them is not admissible.
offer,
make a valid
counsel
order to
(Pa
States, 260
v. United
Fed.
ris
*17
specific facts
should have stated the
(8th Cir.1919)
State,
];
529
Baxter v.
91
[
establish,
testimony
which the
would
456;
592.)
110 N.E.
Ohio St.
C.J.
by
he
the nature of the evidence which
proof
of
admissi
Before
other fires is
expected
physical
establish
facts
to
arson,
prosecution
ble in a
for
it must be
which
at least be consistent with
previous
that the
established
were
fires
incendiary origin
previous
an
fires
(Kahn
State,
incendiary.
182 Ind.
v.
having
and with Smith
been connected
(1914)]; People Fitzger
A and believe Lieutenant present. Price was A APPENDIX Q you her? What did ask including investigation ... but about, oth- I Pacheco’s office already talked A asked what in Wil that we’ve prize investigation you regard proud to his er did do with Mr.. possession. some coming this fire and to conclusion? answer, Q give you she Yes, I did Mr. Pacheco’s And did
A talk with say anything response that? lady, she cleaning Mary Farmer. Olmsted, photo- marked Q Mr. we’ve here, for identification. Exhibit 55 graph A Yes. straight, you did have this Just so we Honor, going I’m Your MR. WEBB: you? photograph, did take that thought going object to that. I we were No, I did not. A permissible far as I'm hearsay is to— pho- in that Q you identify what’s Can as to the facts that relate concerned tograph? going if talk incident. But we’re about somebody else somebody’s idea of what Canon, appears, 35-millime- A It’s a prizes, going object then am to have ter camera and flash. inappro- hearsay that it’s on the basis not that’s Q you Do know whether or priate proceedings. at this state Dr. Pache- camera that was found at Stephens? THE COURT: Mr. co’s home? Honor, MR. Your we’re fol- STEPHENS: A I not know. do questioning lowing just the line of as Mr. Q iden- somebody else have to Would going it. Mr. Olmsted—I’m Webb outlined tify photo, then? say things Mr. to have to some here that A Yes. to hear. Ob- may Webb not want questions of viously Mr. Olmsted asked Q you know who that would be? Do conducting Mrs. Farmer the course A DeWald or Lieutenant Officer Chris investigation, and that’s what we’re Jerry Hubbs. getting question into. He asked her a Q Why don’t me that back. hand highly seems to me to be relevant to the counsel.) (Hands situation, going give him an and she’s answer, he used and it’s me, information maybe WEBB: Hand it to MR. to come to a conclusion. agree can that it can come into evidence. correct,
THE COURT: Is that sir? (Defendant’s counsel.) Exhibit 55 handed to Yes, THE WITNESS: it is. problem with MR. WEBB: We have no proposed Your Honor. Exhibit objection THE is noted. COURT: question. Answer the you. Thank THE COURT: painting A An oil of a bull elk for its MR. STEPHENS: We would move meadow and a 35-millimeter camera on the admission, then.
bookcase Mr. Pacheco’s office. Stephens, Mr. for the ben- THE COURT: Now, Q out did that information turn depict and its jury, efit what does it *19 significance you in the course be of some location? your investigation? As as we admit MR. STEPHENS: soon Yes, A it did. it, him to the witness and have I’ll hand it identify it. Q significance What did it have. Okay. 55 is admitted. THE COURT: missing
A That both items were fire scene. (Defendant’s admitted Exhibit No. 55 was evidence.) into Q you Were those items that were look- you Pacheco’s for when went to Dr. Olmsted, Q after that’s been admit- Mr. the list that discussed earli- home with we ted, appear to be? what does er? camera with a A A 35-millimeter Canon Yes, A it was. lens, exactly what kind large I don’t know lens, and a flash.
Q And were both of those items ob- tained at his home? you I Q put way. it this If told Let me camera, you Dr. Pacheco’s that was Yes, they A were. that? any reason to disbelieve (Defendant’s marked Exhibit No. 55 was identification.) A No. for
Q you given custody of the saw Were yesterday? Now, Q your testimony yes- if I recall Yes, A I was. terday, you indicated that there a saw that was obtained at Mr. Pacheco’s home. Q By who?
A Yes. By Jerry A Lieutenant Hubbs. Q you you And do have that saw with Q you’ve custody your And had it in today? yesterday? since Yes, yesterday A at 1900 hours. Since
A I do. Honor, MR. Your STEPHENS: Q you Would hand that to me so we can num- would move the admission of—what mark it—or hand it to the Sheriff here if that, ber is Mr. Olmsted? you would. A 56. (Witness complies.) A counsel, please. THE COURT: Show it to
(Defendant’s Exhibit No. 56 was marked identification.) (Defendant’s exhibit No. 56 shown to Now, Olmsted, counsel.) Q Mr. when the saw home, was obtained at Mr. Pacheco’s May inquire, MR. I WEBB: Your Honor?
you that time. see and handle the saw at Certainly. THE COURT: saw, yes. A I seen the (Voir Webb) Q I Dire Mr. If recall Q At his home? Olmsted, your testimony yesterday, Mr. you testified that at Wil’s house he advised actually police A I believe it was at the hunting you that he had a saw that was department actually when I seen the saw. backpack family situated in a down in his Q Okay. you And could tell me the room or basement area at the house. you events from the time that left the Basement, yes. A it, you hap- home until the time saw what pened? that’s, fact, Q And where the saw found, backpack? inside the
A The saw remained—or was custody of from the resi- Chris DeWald A Yes. police department dence to the as far as Q you? Which Wil disclosed to
know. A Yes. Q you And were with him at that time? Q Now, you’ve Stephens told Mr. No, cars, driving separate we were essentially in that it this is the condition together. but we were you DeWald. was when saw it from Officer it, true, quite Mr. Olmsted? Q police That’s not Did follow him to the sta- tion? saw, yes, A The other than the sticker.
A Yes. Q talking I’m exhibit which is about the apart like this a saw and a sheath. Was Q you got police And when sta- *20 (indicating)? tion, you is this the item that saw? No, apart. A the sheath was not A Yes. up Q integral sewed sheath was Q certainty you say any And can typical hunting of other saw sheaths unit today that it’s the same saw? you’ve seen? that appears A It to be the same saw. A Yes. Now, Q custody that you haven’t had Q apart? you Do know who took during period between saw of time when it was taken to the sheriff’s office A No. yesterday, you?
until have fact, Q submitted As a matter of it was examination, it? the FBI for wasn’t A No. report? Q you copy have a Do me, For counsel. Excuse THE COURT: had been. A believe ques- yes no to anyway, answer or now re- object to the We don’t MR. WEBB: question you remember what the Do tion. Ex- proposed ception into evidence was? long as it the sheath hibit 56 so includes Yes. THE WITNESS: integral part proposed which is an exhibit. or no. yes Just answer THE COURT: you objec- Do have THE COURT: A Yes. tion, Stephens? Mr. report from the Q you consider the Did No, Your Honor. MR. STEPHENS: coming your FBI in conclusion? 56, including Exhibit THE COURT: I’ve No, report. A I haven’t seen sheath, into is admitted evidence. report, was on heard of what heard (Defendant’s admitted Exhibit No. 56 was report report, I haven’t seen the evidence.) into FBI. from the Olmsted, Q you Mr. did look at that Q you report know went Do who that coming to saw and consider saw to? regard later some conclusion on with A Pardon? your investigation? report know went Q you Do who that Yes, A I did. to? Q your- you Did ever make a decision Department. American Falls Police A self, opinion, as your own to whether or Jerry have that? Q Hubbs So have been make the that saw could used to Now, cut in wall? you come A what conclusion did your regard to own view to with going object I’m MR. WEBB: to have to cut in wall as to whether saw and the They FBI to that. submitted this to the been used? not that saw could have report got back a and it said it could not be connected. object. going I’m MR. WEBB: this There’s insufficient foundation incorrect, Your MR. STEPHENS: That’s anything upon which base witness has Honor. opinion. such an going Are we to have MR. WEBB: this time. THE Sustained at COURT: override the FBI? Olmsted, cut Q you look at the Mr. MR. That’s a misstate- STEPHENS: wall, the sheetrock? ment, Your Honor. Yes, A I did. misstatement, It’s not a it’s MR. WEBB: FBI directly report. from the the cut was Q you observe how And made? Honor, need MR. Your STEPHENS: then, get report, have Mr. Olm- Yes, I did. A very report. This is a sted discuss you compare the saw and Q And did objection. inappropriate in the sheet- that saw with the cut teeth on report? Do THE COURT: fire scene? you saw the rock that does, I MR. STEPHENS: Mr. Olmsted Yes. A
think. to this Q you have saw similar Do THE No. WITNESS: yourself? Q don’t have it? You Yes, I do. *21 No,
A it’s at Falls— American fact, any testing on Q you, in do Did regard saw and to either your own Q It’s where? sheetrock? De- Police A It’s at American Falls Yes, I did. A partment.
mine not that this was the saw that made cut, opinion your but whether or not in Q you And did that —could describe used to make the the saw could have been you what did that test? you cut that saw at the fire scene? A I took a sheet of sheetrock and with A Yes. my saw I cut the sheetrock to see what MR. WEBB: Excuse me. I think what type of marks were left on the sheetrock. permitted response the Court to was Q sitting similar to this saw How whether a of this kind been saw could have you you front of is the saw at the saw that caused the cut. your home? Correct, THE COURT: not whether Quite A other than mine has a similar not this could saw have been saw. plastic cap (indicating) here of a instead MR. STEPHENS: That’s fine. metal screw. THE rephrase your ques- COURT: So Q How about the teeth? tion, please. A I The teeth are identical as far as can Q Could the saw kind that’s sit- tell, or similar. identical ting you in front of have been used to that, Q Based on the view of the sheet- you make the saw cut that at fire scene, rock the fire the view of both scene? saws, home, your experiment at did A Yes. you your own conclu- reach mind a asking —I’m sion whether or not Q you And was that information used, you whether or not this saw was helping you used in to come the con- whether or it could have been used investigation? later clusion you make the cut saw at the fire Yes, A it was. scene? Now, Q you anyone did interview Yes, I did. determine whether or not the doors were Q you at? And what did arrive secure or not at the time of the fire at the Pacheco office? objec- MR. WEBB: have the same We speculation tion. We think this is and not A Yes.
opinion, Your Honor. Q you regard Who did talk to Olmsted, your opinion
THE COURT: Mr. that? wouldn’t to the effect that Exhibit A Officer Chris DeWald and Lieutenant hole, was the saw that cut the would it? Jerry Hubbs. THE WITNESS: No. Q Jerry And Hubbs Officer the doors as to you tell with reference to might just
THE I COURT: And ask— whether or not were locked? you any questions like to ask in aid Webb, objection, ques- Mr. further going object MR. WEBB: We are tions? we can until that witness is called so the declarant. It’s hear- No, cross-examine MR. WEBB: Your Honor. say, Your Honor. Well, saws, THE many COURT: how Honor, we are MR. STEPHENS: Your Olmsted, Mr. this same there make are trying All I’m going to call Hubbs. Officer existence, do know? you to establish here is that Officer Olmsted idea, THE I WITNESS: have no don’t. to a relied on this to come information you go THE I’ll COURT: let ahead stop If now and conclusion. we have question. ahead. answer the Go put then Mr. Olmsted call Mr. Hubbs and question again? on, going get A The ridiculous. back it’s it, you going to call Q rephrase me Mr. THE COURT: If are Let Olmsted. asking you if him— I'm were able to deter- *22 or see Now, yourself conduct
Q you did investigation any conducted there was call De- MR. STEPHENS: We will Chris might have been surrounding any keys that well, sir. Wald as people to those doors? available foundation, Lay THE COURT: more A Yes. took when and where the conversation regard? in that Q And was done place, present who was and so on. Jerry interviewed A Lieutenant Hubbs Q you you Do know where talked to key have a parties involved that would locks? Officer Hubbs about the Mr. Pacheco’s office. Yes, A in the American Falls Police De- Q your understanding that Offi- It was partment. people? cer Hubbs interviewed those Q approximately And when? inter- A I attended some of the Yes. January A It would have been 2nd— views. 2nd I’m not sure It or 3rd. of the date. Q generally was the 2nd or 3rd. And don’t need who—we them, people kinds of know all of but what Q you any And do recollection as keys? you understood had were anybody to whether or else would have you been there when had the conversation? Cleaning lady, help, hygienist, A office type thing. A I if do not recall there were other people there. Q you any Did use of the information well, me re- from that research let or— Q you What did Hubbs tell Officer phrase that. regard to the locks? obtained that in- information from objection MR. WEBB: The is that this is vestigation, by you was that used in later hearsay, and I don’t for a care whether it’s coming to a conclusion? not, purpose hearsay. it’s still It’s a declaration of someone who is not in court A Yes. permit
at this time to cross examination. Now, Q you did ever interview an Offi- Honor, MR. STEPHENS: Your we’ve King? Gary cer gone through hearsay this before and A Yes. setting admissible when we’re the founda- Q you Did receive information regard tion with to an that ah you coming used in to a 'him that expert upon, has relied and that’s where regard your investiga- conclusion with that, going everybody we’re knows tion? only talking that’s the reason we’re about A Yes. something this. If he relied on that’s not reliable, guess they I can cross-examine Now, Q you have the conver- where Mr. Hubbs. King? Gary sation with
THE COURT: The statement will be Department. A American Falls Police for the that it said and admitted fact was Q approximately you Do remember necessarily falsity for its truth or when? as a for which the witness reached basis recall if it the 2nd or A do not opinion. his ultimate 3rd, it one or the other. answer, go sir. So ahead Q the 2nd or the It would have been Yes, A that both doors to Wil Pacheco’s 3rd? time of the fire. were locked at the office 2nd or the 3rd. A It was the Q you use that Did information Q police Do know where opinion later on with re- formulating an place. took department the conversation gard to some conclusion at the end A Yes. investigation? fire—the Yes, Q Where? I did. *23 are
before these individuals themselves testify. called to dispatch A In desk. front of that, Mr. you on Would like to be heard Q anyone And do know if you else Stephens? present? Yes, Honor. MR. STEPHENS: Your Jerry A Lieutenant Hubbs. Honor, And, Honor, MR. I’m Your reason have to take STEPHENS: Your we going question to ask and we’re not this course we are is there’s that because true, offering prove only it to that it’s objection by but with been made counsel this was Mr. regard that information that Olmsted to the are opinion testimony, and we in reaching had a conclusion. laying required to foundation as we are asked, going Mr. as do. Olmsted is to be Q you you What did he tell that used Court, he already we have notified the if your investigation? expe- opinion arrived at an on his based Honor, that, MR. And to WEBB: Your investigation rience and who the as to to the wit- object. again, we’ll have Once suspect that was. This information chief he’s cross ness is not here examination. giving is to the Court information obviously to The declaration is intended testify that he will that he in arriv- used proof contrary to what used substantive that it is opinion. at fact says, objec- for that counsel reason hearsay regard meaningless with should tion stand. opinion testimony. King going to THE COURT: Is Officer We’ve also notified Court and counsel testify? all of have been these witnesses that definitely MR. He will tes- STEPHENS: today regard Mr. Olm- discussed with tify, Your Honor. sted, King, including Gary have been sub- approach THE COURT: Counsel poenaed called the defense will be bench, please. chief, they’re subject in their examination, really just goes (Discussion record.) cross off weight or he relied to the whether not gentlemen, THE Ladies COURT: formulating pertinent on information morning We we’ll take the recess now. opinion, jury weight then the can his something up your take outside appropriate he had whether not infor- again. presence please So remember mation. given you previously, same admonition I’ve room, you if retire to the Honor, Your goes, And it further excused.) please. (Jury information issue of bad faith because this opin- formulating that he arrived at (The following proceedings had were say A1 given he will later ion also court, pres- open hearing outside filing prior Peterson jury:) ence of the course, and, plaintiff, complaint THE The record reflect the COURT: will the matter and that’s this is at heart of jury has been excused from the courtroom. try- why why here and that’s we’re we’re with just The Court had conference ing to do. record, off the but the counsel at the bench objection not made with If the had been allowing Mr. Olm- is concerned about Court on his regard laying such a foundation testifying about conversa- sted to continue go not into opinion, may then have to we in reach- he had other individuals tions go into it really But have to this. prior to these individuals ing his decision it, because, pret- Ias understood the Court that ex- testifying. The Court aware you if have a ty told me that don’t well many their perts can base gives opinion, he good foundation when jury trial things, I’m sure that in a give opinion. may let him him to allow proper it’s to continue to him THE That’s correct. COURT: testify people as to other told *24 you,
THE Thank sir. COURT: Honor, MR. STEPHENS: Your So making MR. STEPHENS: we’re sure that, happy would be more than to do you’re that aware of all the factors he that fact, attempted that’s what we do with to coming opinion. used to that I’m not prior questions, objection and the came trying anything going to do that I’m not to no, and up witnesses, said we want a definite back with other Your Honor. conversa- asking tion. I was him That’s where we what information are. you gain investigation, in your they really proper I don’t see that this is a objected specific questions. wanted the objection. calling We’re man this as got We’re not the ones that us started expert hearsay any- I see don’t that has path. down this thing with to do THE Okay, Stephens. Mr. COURT: Honor, indicate, though, Your we would if objection Webb, is sustained to this phraseology Mr. if the question is, and later on Mr. question you know, Olmsted is not you like did discuss give allowed to opinion, we would think this with Officer DeWald whoever and right that we would him have to call based on that discussion—or what informa- again after all these are on and witnesses you tion did derive from that discussion opinion him again. ask which you used as one of the bases for your opinion, you would still have the same Well, THE I probably COURT: would objection? agree you with there. Yes, MR. I I WEBB: think have to Mr. Webb? have, Your Honor. MR. particular question WEBB: That I objection wouldn’t have an wit- that’s before the Court at this time is a saying ness he discussed the matter purported crucial one. It relates to view- with King discussion, Officer and that that ing of pickup a camper shell that said, identifying without what was resembles one that’s owned Dr. Pache- part upon of the information that he relied co. It’s critical as also time and reaching his conclusions. going We’re clearly what the officer hearsay. saw. It’s object to continue to to those conclusions Hearsay does not become less hear- they’re legal conclusions, they because are say promise because counsel opinion. not But I think that would be going he’s to call jury someone else. The appropriate for him to talk about. But the it, hears and even the someone else if specifics of just the conversation is a way to the truth situation testifies try get hearsay jury. before the it comes differently, they out still hear the version that this witness THE I agree, Stephens, COURT: Mr. I offers inappropriate them. It’s opinion under the agree Mr. with Webb. It looks to me like rule. these witnesses should have been called first and advise the told I extensively have read question, on this That Officer Olmsted. would be admissi- expect too, I have, Court and counsel ble, it, doing course. But we’re it looks and what says Professor Moore backwards, me, am somewhat say other authorities on evidence is that procedure. bothered I’m And you permitted are expert give as an being you, you critical of I know specific testimony of what someone else scheduling problems with witnesses. data, you said. You can talk about can added). general talk about IV, (emphasis sense conversa- 748-771 Tr. Vol. tions, give specific hearsay cannot part just
statements. That is not
opinion may part formulation—it process,
formulation but not of the
expression process. So we think that
object good.