Sample--Appellate

Case A21A0559 Filed 12/18/2020 Page 2 of 48

TABLE OF CONTENTS

TABLE OF CONTENTS ...... 2

TABLE OF AUTHORITIES ...... 4

INTRODUCTION ...... 9

Questions Presented...... 9

PART ONE: STATEMENT OF FACTS ...... 11

Hard work “is comfort.” ...... 12

A “catastrophic” collision—like being hit by a “massive locomotive”—causes permanent injuries...... 12

Whether Cypress insured the Grays is, they argue, an “issue[] for determination by the jury.” ...... 14

Cypress demands more evidence of insurance...... 17

“I wouldn’t call any of you prejudice[d].” ...... 20

PART TWO: ARGUMENT AND CITATION OF AUTORITIES ..... 22

Standards of Review ...... 23

Argument ...... 25

I. The Grays and Cypress induced, acquiesced in, and waived their first enumeration...... 25

A. The Grays and Cypress induced argument about insurance, listing it as a jury issue in the pretrial order. ... 25

B. The Grays and Cypress acquiesced in argument about insurance by introducing evidence of insurance and by arguing it themselves...... 26

C. The Grays and Cypress waived any objection to argument about insurance by failing to properly object. ... 27

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II. Even if the Grays and Cypress had preserved their first enumeration for appeal, they cannot show plain error or an abuse of discretion...... 29

A. In direct actions against insurers, evidence of insurance is required...... 29

B. In direct actions against insurers, evidence of insurance is admissible...... 32

C. The Grays and Cypress admitted that there was no prejudice and have no proof of prejudice...... 35

D. The Grays and Cypress are not entitled to review and cannot show plain error or an abuse of discretion...... 39

III. Verner’s tax records are irrelevant and inadmissible—especially since he did not claim lost wages...... 43

CONCLUSION ...... 46

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TABLE OF AUTHORITIES Cases Pages

Andrews v. Yellow Freight Sys., Inc., 262 Ga. 476 (1992) ...... 30, 32

Ashley v. Goss Bros. Trucking, 269 Ga. 449 (1998) ...... 38

Auto-Owners Ins. Co. v. Dolan, 342 Ga. App. 179 (2017) ...... 36

Borenstein v. Blumenfeld, 151 Ga. App. 420 (1979) ...... 43

Braithwaite v. State, 275 Ga. 884 (2002) ...... 28

Capes v. Bretz, 195 Ga. App. 467 (1990) ...... 26

Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746 (1980) ...... 36

Cham v. ECI Mgmt. Corp., 353 Ga. App. 162 (2019) ...... 36

Cherokee Nat’l Life Ins. Co. v. Eason, 276 Ga. App. 183 (2005) ...... 26

Chrysler Grp., LLC v. Walden, 303 Ga. 358 (2018) ...... 24, 33, 36, 39, 40, 41

Dagne v. Schroeder, 336 Ga. App. 36 (2016) ...... 24

Denton v. Con-Way S. Exp., Inc., 261 Ga. 41 (1991) ...... 36, 37

Dodd v. Dodd, 224 Ga. 746 (1968) ...... 25

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Fuller v. Flash Foods, Inc., 298 Ga. App. 217 (2009) ...... 11

Gates v. State, 298 Ga. 324 (2016) ...... 24, 39, 40, 41

Grissom v. Gleason, 262 Ga. 374 (1992) ...... 36

Harper v. Hurlock, 281 Ga. App. 265 (2006) ...... 25–26

Hill v. State, No. S20A0781, 2020 WL 6122196 (Ga. Oct. 19, 2020) ...... 39

Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305 (1999) ...... 34

Jackson v. Sluder, 256 Ga. App. 812 (2002) ...... 30–31

Keller v. State, 308 Ga. 492 (2020) ...... 39

Lockhart v. S. Gen. Ins. Co., 231 Ga. App. 311 (1998) ...... 31

McClellan v. Evans, 294 Ga. App. 595 (2008) ...... 36

Miller v. Cole, 289 Ga. App. 471 (2008) ...... 24

Moody v. Dykes, 269 Ga. 217 (1998) ...... 25

Mullins v. State, 270 Ga. 450 (1999) ...... 29

Powell v. State, 335 Ga. App. 565 (2016) ...... 28

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Ross v. State, 296 Ga. 636 (2015) ...... 39

Ruffin v. State, 333 Ga. App. 793 (2015) ...... 27

Sapp v. Canal Ins. Co., 288 Ga. 681 (2011) ...... 32

Slade v. State, 287 Ga. App. 34 (2007) ...... 27

Smith v. Crump, 223 Ga. App. 52 (1996) ...... 29, 31, 40

Smith v. State, 279 Ga. 48 (2005) ...... 41

S. Outdoor Promos., Inc. v. Nat’l Banner Co., 215 Ga. App. 133 (1994) ...... 43

Suber v. Fountain, 151 Ga. App. 283 (1979) ...... 23

Swoope v. CSX Transp., Inc., No. 4:13-cv-0307-HLM, 2015 WL 12564948 (N.D. Ga. July 29, 2015) ...... 45–46

United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) ...... 24, 41, 46

Vega v. La Movida, Inc., 294 Ga. App. 311 (2008) ...... 23, 29

Wallace v. Wiley Sanders Truck Lines, Inc., No. 4:14-cv-142 (CDL), 2016 WL 320140 (M.D. Ga. Jan. 25, 2016) ...... 32

Williams v. State, 328 Ga. App. 876 (2014) ...... 24, 41, 46

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Whisnant v. State, 178 Ga. App. 742 (1986) ...... 26

Statutes

O.C.G.A. § 24-1-103(d) ...... 39, 40

O.C.G.A. § 24-4-401 ...... 43

O.C.G.A. § 24-4-402 ...... 43

O.C.G.A. § 24-4-411 ...... 32, 40

O.C.G.A. § 40-1-112(c) ...... 14, 26, 29, 31

O.C.G.A. § 40-1-101(d)(2) ...... 14, 15

O.C.G.A. § 40-1-140(d)(4) ...... 14, 26, 29, 31

O.C.G.A. § 40-6-10(b) ...... 38

O.C.G.A. § 46-7-12 ...... 29

Rules

Fed. R. Evid. 411 ...... 33

Ga. Ct. App. R. 36(1) ...... 22

Ga. Ct. App. R. 36(3) ...... 22

Miscellaneous

Alan Calnan, The Insurance Exclusionary Rule Revisited: Are Re- ports of Its Demise Exaggerated?, 52 Ohio S. L.J. 1177 (1991) ...... 38

Cal. Dep’t Ins., Report of Examination of the Cypress Insurance Com- pany as of December 31, 2016, available at https://bit.ly/3qKBjJr...... 46

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Derek Thompson, Do Trump’s Taxes Show He’s a Failure, a Cheat, or a Criminal?, The Atlantic (Oct. 5, 2020), available at https://bit.ly/3qQB1ky...... 46

Elizabeth Loftus, Insurance Advertising and Jury Awards, 65 A.B.A. J. 68 (1979) ...... 37

Samuel R. Gross, Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance, 49 Hastings L.J. 843 (1998) ...... 38

Voltaire, Candide, in The Works of Voltaire: A Contemporary Version (William F. Fleming trans. 1901), available at https://bit.ly/37jSU37 ...... 45

William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575 (1991) ...... 37, 38

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INTRODUCTION

James Gray tried to pass Lemuel Verner on a double-yellow line and hit him with a fully loaded 80,000-pound logging truck. It was a “catastrophic” collision, an engineer said—like being hit by a

“massive locomotive.” It twisted Verner’s spine, according to a doctor, “like you twist a washcloth to get the water out,” permanently injuring him. Verner sued and, under Georgia’s direct-action statute, named the Grays’ insurer, Cypress Insurance Company, as a party.

After a jury found for Verner, the Grays and Cypress moved for a new trial. The trial court denied the motion, finding “ample evidence” to support the verdict. The Grays and Cypress appeal, demanding a new trial.

Questions Presented. This appeal presents two issues:

• Under Georgia law, evidence of insurance is admissible

in direct actions against insurers. In this direct action,

the Grays and Cypress demanded evidence of insurance

and argued about it in closing. For his part, Verner, sum-

marizing the direct-action statute’s effect, noted that Cy-

press would be liable for any judgment against it and the

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Grays. Did the trial court err by not excluding references

to insurance sua sponte?

• Irrelevant evidence is inadmissible, and tax returns are

generally irrelevant in personal-injury cases—except for

some cases involving claims for lost wages. Here, Verner

did not claim lost wages, only general pain and suffering.

Did the trial court err by excluding his tax returns?

The answer to both questions is “no.” Evidence of insurance is admissible in direct actions, and the Grays and Cypress invited— indeed demanded—it. Even so, the Court need not reach that issue because the Grays and Cypress induced the error they claim, acquiesced in it, and waived it. In the pretrial order, for example, they insisted that Verner prove to “the jury” that Cypress insured the

Grays for this crash. As for Verner’s tax returns, the trial court correctly excluded them as irrelevant and inadmissible, especially since

Verner did not claim lost wages. The Court should therefore affirm the judgment below and the order denying the motion for a new trial.

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PART ONE: STATEMENT OF FACTS

Over five years ago, James Gray hit Lemuel Verner with an

80,000-pound logging truck. V10-268; V14-36:3–53:22.1 (Title to the truck is in Mrs. Gray’s name, so she is also a party.) Verner sued the

Grays and brought a direct action against their insurer, Cypress In- surance Company. See generally V2-16–23. After a four-day trial, in which the Grays and Cypress admitted liability, the jury found for

Verner. V11-67.

Now the Grays and Cypress ask the Court to second-guess not only the jury’s verdict but also the trial court’s decisions. They spin the record to that end. On appeal from a jury verdict, however, the

Court “must construe the evidence with every inference and presumption in favor of upholding the verdict.” E.g., Fuller v. Flash

Foods, Inc., 298 Ga. App. 217, 217 (2009) (citation and punctuation omitted). The Court should disregard the Grays and Cypress’s statement of facts because it violates that rule.

1 In accordance with Georgia Court of Appeals Rule 25(3), references to the electronic record are to the PDF page number.

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* * *

Hard work “is comfort.” Verner grew up on a Georgia farm where his family raised livestock and grew vegetables. V15:78:12,

78:25–79:8. Asked if that was “comfortable . . . or a hardworking life,” he replied, “[hard work] is comfort.” Id. 79:9–11. After six years in the Navy and an honorable discharge, Verner worked as a mechanic and steam-plant operator for three decades, some of the time at the

Navy Supply Corps School. Id. 79:15–24, 84:2–14. Since then, he has worked as a handyman—welding, doing tractor work, and salvaging roof trusses from chicken houses. Id. 85:24–86:24. Above all, Verner relished being an asset to the community and helping people. Id.

45:20–21, 47:4–8, 57:1–9.

A “catastrophic” collision—like being hit by a “massive locomotive”—causes permanent injuries. On August 18, 2015, a clear summer morning, Verner was hauling trusses on a trailer behind his pickup truck. Id. 90:17–25, 91:1–92:6. He was taking them to a church camp for children. Id. 91:17–20. As Verner signaled that he was preparing to turn left from State Route 98 onto Floyd

Road, Mr. Gray was driving an 80,000-pound tractor trailer loaded

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with logs in the same direction on State Route 98 toward the same intersection. Id. 91:17–93:1; V13-41:2–16, 43:7–20.

Gray tried to pass Verner on a double-yellow line, smashed into his light truck at about 43 miles per hour, dragged him down the road, and tore the trailer from the truck. V14-39:15–25, 41:2–49:25,

57:22–25. “[Y]ou have this massive locomotive approaching your door,” an accident reconstructionist testified. V14-52:19–53:7. “A collision with a semi-tractor trailer,” he added, “sixty or eighty thou- sand pounds into your side, it’s very severe, catastrophic.” Id. 53:9–

22.

Verner’s injuries are correspondingly severe. According to an orthopedic spine surgeon—a graduate of The United States Military

Academy at West Point and former flight surgeon—Verner is now

“permanently disabled” from working, from doing what gave him purpose. V14-64:22–78:15; V19-1–11. All due to the injuries he sus- tained in the crash. V14-78:16–81:13. The disks and soft tissues in his spine took the brunt of the impact. Id. 79:8–12. Verner was hit so hard and his truck rotated so “violently and so quickly that angular velocity or acceleration twisted him.” Id. It twisted his spine, the

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doctor explained, “like you twist a washcloth to get the water out.”

Id. 79:8–25.

Whether Cypress insured the Grays is, they argue, an

“issue[] for determination by the jury.” In the pretrial order, the

Grays and Cypress argued that “[w]hether Defendant Cypress Insur- ance Company is subject to direct action” is an “issue[] for determination by the jury.” V10-266 (emphasis omitted). For good reason:

Under Georgia law, the Grays “shall . . . [m]aintain liability insurance.” O.C.G.A. § 40-1-101(d)(2). And to be subject to direct action under Georgia law Cypress must be the Grays’ “insurance carrier.”

Id. §§ 40-1-112(c) & 40-2-140(d)(4). The Grays and Cypress thus argued, in effect, that Verner must prove both that Cypress was the

Grays’ liability insurance carrier and that it had issued them a policy that covered this crash.

Although they demanded evidence of insurance, the Grays and

Cypress moved in limine to exclude reference to the insurance “policy’s limits”—the maximum amount Cypress would pay to cover injuries that the Grays caused. V4-232:14–18. But they did not move to exclude any other reference to or argument about insurance. V4-

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225–39, 247–60; V5-138–41; V10-231–40, 275–78. Verner did not op- pose the motion. He didn’t intend to offer evidence about the insurance policy’s limits and never did so. V5-77, 90.

When the case went to trial, Cypress did not have a representative there, and Mr. Gray was indisposed, so Mrs. Gray was the only defendant present. V13-14:8–12.

During opening statements, Verner’s attorney mentioned that

Georgia law mandates that the Grays have insurance on their truck.

V13-6:20–23; O.C.G.A. § 40-1-101(d)(2) (“All motor carriers shall . . .

[m]aintain liability insurance”). The Grays and Cypress objected, claiming that statement “[g]oes into an objection [they] raised earlier.” Id. 6:24–25. But they admit that there is no record of the pur- ported “earlier” objection. See Appellants’ Br. 12 (admitting that the alleged “colloquy . . . appears to have taken place off the record”); compare V4-232 (moving to exclude evidence of policy limits). They raised the “[s]ame objection” later—referring again to something that they claim to have done “off the record.” V13-7:12–17; Appel- lants’ Br. 12.

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During their opening, the Grays and Cypress’s counsel introduced them:

[W]ho are the defendants? . . . Mr. Gray is . . . not able to be here. Vivian’s been married to -- . . . . They’ve been married about 52 years. They’re your neighbors. They live here. And Mr. Cheeley’s [Ver- ner’s attorney] trying to make it about the insurance company. And certainly the insurance is a party to the law- suit, . . . .

V13-14:8–16. Their attorney also explained the defense: “So, what’s our case about? We expect the evidence in this case to be that Mr.

Verner’s been a lifelong sufferer of back pain.” Id. 15:18–20.

Verner’s first witness, an accident reconstructionist, testified about the physics of the collision: the forces involved, the severity of the collision, and the effect on Verner. V14-36:3–53:22. He opined, in short, that it was a “catastrophic” collision—likening it to being hit by a “massive locomotive.” Id. 52:19–53:22.

Next, Dr. James Malcolm—the orthopedic spine surgeon, former flight surgeon, and West Point graduate—explained how the crash had “permanently disabled” Verner. V14-64:22–81:13.

Verner’s cousin testified about the changes he saw in Verner after the crash. V15-45:8–46:4. Before the crash, he said, Verner was

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a “lively person,” “lived life to the fullest.” V15-45:8–14. “[H]e was happy, . . . there was a lot of joy in being able to complete a job, . . . helping other people.” Id. 45:14–19. He was active in the community, helping neighbors, and “always had a smile on his face.” Id. 45:20–

21, 47:4–18. Since the crash, however, Verner doesn’t go out in public, doesn’t call his friends, and just “seemed . . . depressed.” Id.

45:22–46:2. His depression has “progressed.” Id. 46:3–4. It “eats away at him . . . that he’s not able to get out there and help”—“help other people.” Id. 47:16–18.

Verner’s ex-wife even testified about how the collision had changed his life. V15-50:20–57:21. Before the crash, she described him as “sweet,” “funny,” “engaging,” and “happy-go-lucky.” Id. 53:23–

54:3. She recounted how he relished helping other people. Id. 57:1–

12. But since the crash, she said, “he can’t do that anymore. The joy is gone out of his life . . . .” Id. 57:13. “And the worst thing is,” she added, “he’s a man of great faith,” but “[h]e can’t get down on his knees and pray anymore because he can’t get back up.” Id. 57:16–19.

Cypress demands more evidence of insurance. Through- out trial, Cypress hinted that it was going to move for a directed

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verdict, and when Verner rested, it did. V15-157:1–25. It began by arguing that Verner had “to prove [that Cypress] issued” the “policy[]” covering the Grays. Id. 157:14–15. But he had done so, and Cy- press admitted as much, conceding that he had “elicited testimony from Ms. Gray about that.” Id. 157:15–16. “But,” it added, proving that Cypress had issued the insurance policy isn’t enough: Verner, it said, needed “to prove that it was on file with The Department of

Revenue,” too. Id. 157:8–10, 157:16–17. After some argument, Cy- press ultimately withdrew its motion. Id. 170:2–12.

For their part, the Grays and Cypress called one witness: Mrs.

Gray. Her testimony—given on direct—focused on money and insurance:

Q. . . . did your husband ask you to line up the insurance on the truck? A. Yes. Q. And did you try to get the insurance in his name? A. I wanted it in his name, but they wouldn’t put it because the title was already in my name, so they couldn’t use it. Q. And let’s talk about who paid for the premiums on the insurance. Where -- A. He did. Q. Where did the money come from to pay the premiums on the insurance? . . .

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Q. Would he take cash from the business and give it to you to put in your account? A. Right. Q. And then would you write a check to the insurance company? A. I sure did.

V16-15:12–16:6 (emphasis added). The Grays and Cypress’s counsel mentioned “insurance” at least five times during their short direct examination of Mrs. Gray. Id. 13:8–12, 15:12–16:6.

The Grays and Cypress also introduced decades’ worth of Ver- ner’s medical records—everything from a spider bite to a cologne al- lergy. See V15-140:24–144:3; V58-25:23–25 (“[Defense counsel] admit[s in closing] that [he] put in some stuff about tick bites and some other things that sound like they don’t mean anything.”). The obvious implication being that Verner was malingering, lying about his injuries. But Dr. Malcolm obviated that argument, testifying that he had seen his share of malingerers as a military flight surgeon and that Verner was no malingerer. V14-65:2–66:6, 70:6–18 (“Q. Did he strike you as a malingerer? A. Not at all.”). Verner, he added, is “a humble person” and was “just … gonna tough it out.” Id. 70:15–17.

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But Verner’s injuries were serious enough that “tough[ing] it out” would not work. Id. 70:17–18.

“I wouldn’t call any of you prejudice[d].” During closing argument, the Grays’ and Cypress’s attorney told the jury, “I wouldn’t call any of you prejudice[d]. And I know nobody came in here thinking, I’m prejudice[d], or I’m gonna be prejudice[d] in this case.” V58-34:8–10.

Then the Grays’ and Cypress’s attorney tried to stoke what he assumed to be the jurors’ preference for members of their community. V58-45:1–12. He highlighted to the jury that the Grays are

“members of your community.” Id. 45:1–5. “And when you’re awarding damages,” he continued, “you’re gonna be awarding damages against one of your neighbors.” Id. 45:3–5. “Your verdict,” he said,

“should be the same against Mr. and Mrs. Gray and the insurance company as it would be if you or one of your family members were there.” Id. 45:8–11.

Responding to the Grays’ and Cypress’s play on the jury’s neighborly proclivities, Verner’s attorney said that he didn’t want a nickel from the Grays and pointed out that Cypress, a California

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company, didn’t bother to have a representative at trial. V59-4:15–

17, 17:21–18:2. The Grays and Cypress raised no objection during

Verner’s closing argument.

The jury found for Verner and against the Grays and Cypress in the sum of $800,000, and the Grays and Cypress moved for a new trial, among other things. V11-67. After “consider[ing] all testimony and evidence,” the trial court denied the motion. V12-148–61. In so doing, it described the “violent” collision that prompted the case along with the “ample evidence and testimony” supporting the verdict. See id. 148, 160.

The trial court also pointed out the contradiction in the Grays and Cypress’s position that evidence of insurance is both indispen- sable and improper:

In light of the fact that O.C.G.A. §24-4-411 contains a pro- vision specifically providing an exception to the general rule against admitting evidence of liability insurance for actions instituted pursuant to O.C.G.A. §40-1-112, and in light of the fact that Defense Counsel took issue with Plaintiff’s Counsel’s failure to prove certain aspects of his case pertaining to insurance, Plaintiff’s Counsel was within the law in asking questions and making references to the contract of insurance between the Grays and Cy- press.

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V12-156. The trial court further explained that Verner’s tax records were inadmissible because he did not claim lost wages but rather a lack of capacity to work, seeking general, not specific, damages. Id.

Despite the trial court’s well-reasoned order,2 the Grays and

Cypress appeal, demanding a new trial.

PART TWO: ARGUMENT AND CITATION TO AUTHORITY

The Court should affirm the jury’s verdict and the trial court’s order denying the motion for a new trial. To begin with, the Grays and Cypress induced, acquiesced in it, or waived their first enumeration. But even if it were subject to review, the trial court did not commit plain error or abuse its discretion by admitting indispensa- ble evidence of insurance or by failing to exclude argument about it sua sponte. Under the direct-action statute, Verner had to prove that

Cypress insured the Grays for this crash. As for the second enumeration, the trial court properly excluded Verner’s tax returns as irrelevant and inadmissible because he did not claim lost wages.

2 Compare Ga. Ct. App. R. 36(1) & (3).

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Standards of Review

On appeal, “[t]he jury’s determination will not be disturbed” if

“there is any evidence to support it.” Vega v. La Movida, Inc., 294

Ga. App. 311, 316 (2008) (citation omitted, emphasis added). The trial court here found “ample evidence” to support the jury’s verdict.

V11-160. What’s more, the Court must construe the evidence “in the light most favorable to” Verner, making “every presumption and inference . . . in favor of sustaining the verdict.” Suber v. Fountain, 151

Ga. App. 283, 285 (1979) (citation omitted).

As for the first enumeration, the Grays and Cypress claim they are entitled to abuse-of-discretion review. That’s incorrect. At most, they may be entitled to plain-error review—if any review at all. Un- der the plain-error standard, they “must show”—

• “an error or defect that has not been ‘affirmatively

waived’”;

• an error “that is ‘clear or obvious’”; and

• an error “that ‘affected the outcome of the trial court pro-

ceedings.’”

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Chrysler Grp., LLC v. Walden, 303 Ga. 358, 370 (2018) (bracketed alteration omitted) (quoting Gates v. State, 298 Ga. 324, 327 (2016)).

If they satisfy those “three requirements,” only then does the Court

“have the discretion to remedy the error.” Id. But it may do so “only if the error ‘seriously affects the fairness, integrity or public reputation of the judicial proceedings.’” Id. (brackets omitted). The Grays and Cypress made none of those showings. Nor can they.

The abuse-of-discretion standard applies to the second enumeration. See, e.g., Dagne v. Schroeder, 336 Ga. App. 36, 41 (2016)

(quoting Miller v. Cole, 289 Ga. App. 471, 473 (2008)). “Absent an abuse of discretion, a trial court’s decision regarding whether to admit or exclude evidence will not be disturbed.” Id. (quotation marks omitted). “A proper application of the abuse-of-discretion review,” the Court explained, “recognizes ‘the range of possible conclusions the trial judge may reach,’ and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court ‘even though we would have gone the other way had it been our call.’” Wil- liams v. State, 328 Ga. App. 876, 880 (2014) (Dillard, J.) (quoting

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)).

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Because the Grays and Cypress ignore all possible conclusions but their own, they have not shown an abuse of discretion.

Argument

I. The Grays and Cypress induced, acquiesced in, and waived their first enumeration.

The Grays and Cypress failed to preserve their complaint about insurance for three reasons. First, they induced argument about insurance, listing it as a jury issue in the pretrial order. Second, they acquiesced in it by introducing evidence of insurance themselves and by arguing about it in closing. Third, if they didn’t induce or acquiesce in argument about insurance, they waived it by failing to properly object. Any one of those precludes them from raising the issue now.

A. The Grays and Cypress induced argument about insurance, listing it as a jury issue in the pretrial order.

Under Georgia law, the Grays and Cypress cannot induce “error” and then complain about it on appeal, which is precisely what they are trying to do. See, e.g., Moody v. Dykes, 269 Ga. 217, 220

(1998) (citing Dodd v. Dodd, 224 Ga. 746, 747 (1968)); Harper v.

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Hurlock, 281 Ga. App. 265, 266 (2006) (quoting Cherokee Nat’l Life

Ins. Co. v. Eason, 276 Ga. App. 183, 187 (2005)). Here, they urged

Verner to produce evidence of insurance, arguing in the pretrial order, for example, that an “issue[] for determination by the jury” is

“[w]hether Defendant Cypress Insurance Company is subject to direct action.” V10-266 (emphasis omitted). That requires proof that

Cypress insured the Grays. See, e.g., O.C.G.A. §§ 40-1-112(c) & 40-2-

140(d)(4). They argued at trial, moreover, that Verner must prove not only that Cypress insured the Grays, but also that the certificate of insurance was on file with the Georgia Department of Revenue. V15-

157:1–25. In sum, they demanded this evidence and thus cannot complain about it now.

B. The Grays and Cypress acquiesced in argument about insurance by introducing evidence of insurance and by arguing it themselves.

The Grays and Cypress acquiesced in argument about insurance, and that “deprives [them] of the right to complain” about it now. Capes v. Bretz, 195 Ga. App. 467, 469 (1990) (quoting Whisnant v. State, 178 Ga. App. 742, 743 (1986)). They acquiesced by insisting that Verner present evidence of insurance, by eliciting testimony

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about insurance themselves, and by arguing about insurance to the jury. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain about the same on appeal.” Id. So too here.

C. The Grays and Cypress waived any objection to argument about insurance by failing to properly object.

The Grays and Cypress waived their first enumeration by failing to object contemporaneously and with specificity. As for specificity, they objected only generally to a statement that Georgia law mandates that motor carriers have insurance—an accurate statement of law. V13-6:20–23. They say that the statement is covered by some “earlier” objection that they claim to have made “off the record.”

Id. 6:24–25. They admit, of course, that there is no record of the “off the record” objection. See Appellants’ Br. 12.

The alleged off-the-record objection is “too vague and indefinite” for appellate review. Ruffin v. State, 333 Ga. App. 793, 794

(2015) (quoting Slade v. State, 287 Ga. App. 34, 35 (2007)). “[I]t is well settled that a general objection is too vague and indefinite for decision by either the trial court or by the appellate courts.” Id. “To

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preserve a ground for error,” the Court has repeatedly held, the

Grays and Cypress “must state the specific ground upon which the objection is based.” Id. They “must do more than merely state that

[they] object[].” Id.; see also Powell v. State, 335 Ga. App. 565, 568

(2016) (citations omitted) (failing to state the “specific ground” for an objection “amounts to a waiver”).

To be sure, the Grays and Cypress did argue a day or so into trial about whether liability insurance is admissible at all, but they had to admit that “[t]here is a specific exception under Georgia’s direct action statute.” V15-11:20–23, 12:15–17. And they added, “if

[Verner] wants to ask Ms. Gray did she have a policy, that’s okay.”

Id. 13:8–10. Their qualms were about mentioning the “policy limits,” which never happened. Id. 13:12–21.

What’s more, “[t]heir failure to lodge a timely objection”—that is, during closing argument—“results in the waiver of this allegation of error on appeal.” Vega, 294 Ga. App. at 316 (citation omitted). In

Braithwaite v. State, for example, the Georgia Supreme Court held that a party “waived [his] enumeration” about closing argument by

“fail[ing] to object contemporaneously to th[at] portion of the . . .

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closing argument.” 275 Ga. 884, 885 (2002) (citing Mullins v. State,

270 Ga. 450, 451 (1999)). In sum, because the Grays and Cypress failed to properly object, they waived their first enumeration.

II. Even if the Grays and Cypress had preserved their first enumeration for appeal, they cannot show plain error or an abuse of discretion.

The Grays and Cypress cannot show plain error or an abuse of discretion because, in direct actions, evidence of insurance—and thus argument about it—is proper.

A. In direct actions against insurers, evidence of insurance is required.

“[S]ince the 1930’s,” Georgia law has permitted “direct action against insurers.” Smith v. Crump, 223 Ga. App. 52, 55 (1996). Geor- gia’s direct-action statute, O.C.G.A. §§ 40-1-112(c)3 & 40-2-140(d)(4)4

(formerly O.C.G.A. § 46-7-12), allows Verner to join the Grays’

3 O.C.G.A. § 40-1-112(c) (“It shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.”). 4 O.C.G.A. § 40-1-140(d)(4) (“Any person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.”).

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insurer, Cypress, as a party here. See, e.g., Jackson v. Sluder, 256

Ga. App. 812, 814 (2002) (citation omitted). The “statute provides a special remedy for those injured by motor carriers, allowing them to file a direct action against the motor carrier’s insurance company.”

Id.

The direct-action statute’s purpose “is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence.” Andrews v. Yellow Freight

Sys., Inc., 262 Ga. 476, 476 (1992) (citations omitted). It also pro- motes efficiency by making Cypress “automatic[ally] liabl[e]” for the

Grays’ negligence. Id. (citations omitted). The legislature intended to obviate the need for plaintiffs injured by motor carriers to try the same case twice just to get the defendants’ insurer to pay.

But an earlier version of the statute had a big loophole: insurers could avoid liability simply by failing to file the correct paper- work with the public safety commission. See, e.g., Jackson, 256 Ga.

App. at 814–16. That “anomalous statutory scheme” produced a “du- bious result” in which “companies who dutifully filed [the correct pa- perwork] were at a disadvantage vis-à-vis those who failed to do so.”

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Id. at 815 (citations omitted). The Court saw that version of the law’s

“inequity” in action and pointed it out to the legislature. Lockhart v.

S. Gen. Ins. Co., 231 Ga. App. 311, 314 (1998) (Blackburn, J., dis- senting); see Jackson, 256 Ga. App. at 815 n.3. A year or so later, the legislature closed the loophole by eliminating the filing requirement.

Jackson, 256 Ga. App. at 815.

Under Georgia’s current direct-action statute, Verner had to prove that the Grays or Gray Logging was a motor carrier and that

Cypress was their “insurance carrier.” See, e.g., O.C.G.A. §§ 40-1-

112(c) & 40-2-140(d)(4); see also Smith, 223 Ga. App. at 55 (“[T]he policy of insurance must be put into evidence to prove coverage”). He did so through Mrs. Gray’s testimony and by having the insurance policy (with the policy limits redacted) admitted into the record but kept from the jury. See V15-61:14–67:25. The Grays and Cypress didn’t object to any of that. V15-67:19 (“No objection to it going in the record.”).

In short, Georgia’s direct-action statute creates “automatic liability in favor of a third party [Verner] who may have a claim for damages for the negligence of the motor common carrier [the

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Grays].” Andrews, 262 Ga. at 476.5 Thus, Verner’s statement about not wanting a nickel from the Grays follows Georgia law—Cypress is “automatic[ally] liabl[e]” for the Grays’ negligence. Andrews, 262

Ga. at 476 (citations omitted).

B. In direct actions against insurers, evidence of insurance is admissible.

Georgia’s evidentiary rules generally exclude evidence of liability insurance, but they make two exceptions—and one that explicitly applies here. See O.C.G.A. § 24-4-411.6 Evidence of liability insurance is, and must be, admissible in “proceedings under [O.C.G.A. §]

5 Accord Sapp v. Canal Ins. Co., 288 Ga. 681, 683 (2011) (following Andrews to hold insurer subject to direct action); Wallace v. Wiley Sanders Truck Lines, Inc., No. 4:14-cv-142 (CDL), 2016 WL 320140, at *3–4 (M.D. Ga. Jan. 25, 2016) (following Andrews to hold a jury instruction that the insurance company is “the other defendant” and “will be jointly responsible” is an accurate description of Georgia direct-action law). 6 O.C.G.A. § 24-4-411 (“In all civil proceedings involving a claim for damages, evidence that a person was or was not insured against liability shall not be admissible except as provided in this Code section. This Code section shall not require the exclusion of evidence of insurance against liability in proceedings under Code Section 40-1-112 [one of Georgia’s direct-action statutes] or when such evidence is of- fered for a relevant purpose . . . and the court finds that the danger of unfair prejudice is substantially outweighed by the probative value of the evidence.”).

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40-1-112”—that is, in direct actions such as this. See id. The Grays and Cypress admit that this is a direct action under O.C.G.A. § 40-

1-112. In fact, they insisted that Verner prove to “the jury” that “De- fendant Cypress Insurance Company is subject to direct action.”

V10-266. Cypress wanted more evidence of insurance.

This explicit exception for direct actions is one way in which

O.C.G.A. § 24-4-411’s text deviates from that of its model, Federal

Rule of Evidence 411.7 See, e.g., Chrysler Grp., LLC, 303 Ga. at 361

(citation omitted) (“Georgia’s new Evidence Code was modeled in large part on the Federal Rules of Evidence”). Unlike O.C.G.A. § 24-

4-411, the federal rule doesn’t explicitly exclude direct actions from its prohibition. Perhaps wary of the loophole that insurers had ex- ploited in the old direct-action statute, the Georgia legislature chose not to leave the admissibility of insurance in direct actions to case law. Instead, the legislature made it clear in the rule’s text that the

7 Fed. R. Evid. 411 (“Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose . . . .”).

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prohibition does not apply to direct actions. That’s why evidence of insurance is admissible in direct actions.

The Grays and Cypress take a different approach. Their argument hinges on a false assumption—that a general prohibition on evidence of “wealth” trumps O.C.G.A. § 24-4-411’s specific exception allowing evidence of insurance in direct actions. That assumption is at odds not only with the legislature’s intent to modernize the evidence code but also with the interpretive canon that specific rules control over general rules. Cf. Hooks v. Cobb Ctr. Pawn & Jewelry

Brokers, Inc., 241 Ga. App. 305, 309 (1999) (“[A] specific statute will prevail over a general statute, absent any indication of a contrary legislative intent”). And “wealth” is certainly more expansive and thus more general than “proceedings under Code Section 41-1-112.”

Therefore, O.C.G.A. § 24-4-411’s exception applies here.

Yet that may not matter because the Grays and Cypress opened the door to argument about wealth by presenting evidence about their own wealth. See V16-12:11–15 (“I [defense counsel] want to talk a little bit about how the money runs through the Gray house- hold. And I don’t mean to pry, but I think it’s important for the case”).

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This is yet another reason why the Grays and Cypress induced, acquiesced in, and waived this enumeration.

C. The Grays and Cypress admitted that there was no prejudice and have no proof of prejudice.

In closing argument, the Grays’ and Cypress’ counsel admitted that the jury harbored no “prejudice” toward them. See V58-34:8–10.

They cannot claim prejudice now.

If anything, the Grays and Cypress invited argument about insurance, lamenting in closing that Verner “doesn’t talk about the times where people do resolve claims” with insurance companies.

V58-34:15–16. They also emphasized to the jury that the Grays are

“members of your community,” “your neighbors.” Id. 45:1–5. They told the jury that it was “gonna be awarding damages against [its] neighbors.” Id. 45:3–5. That opened the door for Verner to point out that Cypress is in California and that it would be automatically liable for the verdict.

As for prejudice, the empirical evidence shows that there was none. Rather than act how the hopelessly prejudiced do, the jury here awarded Verner less than a third of what he asked for and made that

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award against “all Defendants,” which shows that there was no prejudice. V11-67; V59-22:7–10.

What’s more, for their prejudice argument, all but one of the cases that the Grays and Cypress rely on are distinguishable for the same reason: they don’t involve direct actions.8 The only direct-action case they cite for prejudice—Carolina Cas. Ins. Co. v. Davalos,

246 Ga. 746, 746 (1980)—has no relevance here because the plaintiff there revealed the policy limits to the jury. That didn’t happen here.

If anything, Carolina Casualty Insurance Co. shows that the trial court in this case did not err. Indeed, the Grays and Cypress admit,

“[t]he trial judge can . . . allow the insurance policy to be made a part of the record but not presented to the jury,” which is precisely what the trial court did. Appellants’ Br. 25 (quoting 246 Ga. at 747 n.2)

8 See Cham v. ECI Mgmt. Corp, 353 Ga. App. 162 (2019) (premises liability case), cert. granted (July 15, 2020); Denton v. Con-Way S. Exp., Inc., 261 Ga. 41 (1991) (constitutional challenge to damages statute), disapproved by Grissom v. Gleason, 262 Ga. 374 (1992); Chrysler Grp., LLC, 303 Ga. 358 (strict-liability action against automobile manufacturer); Auto-Owners Ins. Co. v. Dolan, 342 Ga. App. 179 (2017) (negligence action alleging improperly installed air-con- ditioning ductwork); McClellan v. Evans, 294 Ga. App. 595 (2008) (negligence action arising from an automobile—not a motor carrier— striking a pedestrian).

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(internal quotation marks omitted). In sum, their best case (Carolina

Casualty Insurance Co.) proves the trial court correct.

Even if they had not invited argument about insurance or dis- claimed prejudice, they have no proof of prejudice. Nowhere in their briefs on appeal or in the trial court do they point to evidence that argument about insurance influenced the jury’s verdict in any way.

Instead, they “chiefly” rely on, as they put it, an “assumption.” See

Appellants’ Br. 22 (quoting dicta in Denton, 261 Ga. at 43 n.2). That

“stereotypical assumption about jurors,” in effect, caricatures jurors as rubes incapable of critical thought. William W. Schwarzer, Re- forming Jury Trials, 132 F.R.D. 575, 587 (1991). It’s an old stereo- type, largely debunked, and a weak rationale for overturning a jury verdict.

In any event, argument about insurance, particularly in direct actions against insurers, is not the automatic adulterant that the

Grays and Cypress claim it to be.9 It’s certainly not fatal error.

9 See, e.g., Schwarzer, 132 F.R.D. at 587 (summarizing a study of 352 jurors on 38 panels in which half of the jurors assumed that defendants were covered by insurance); Elizabeth Loftus, Insurance Adver- tising and Jury Awards, 65 A.B.A. J. 68 (1979) (finding that mock jurors exposed to insurance information awarded lower damages).

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Compare Ashley v. Goss Bros. Trucking, 269 Ga. 449 (1998) (asking about the “one million dollar policy” is not automatic grounds for a mistrial). In fact, every motorist in this state knows that Georgia law mandates that they have liability insurance to drive. See, e.g.,

O.C.G.A. § 40-6-10(b) (criminalizing driving without insurance).

That is one of many reasons why judges and scholars criticize rules excluding evidence of insurance as “impracticable,” “expen- sive,” “of doubtful utility,” and “deceptive”10—and that’s in ordinary negligence cases, not direct actions. Worse still, as one judge explained, “Keeping the truth about insurance from jurors . . . may ac- tually lead to unjust results.” Schwarzer, 132 F.R.D. at 587. The cost to the judiciary in appeals such as this thus only add to the expense and undermine the direct-action statute’s purpose.

10 Samuel R. Gross, Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance, 49 Hastings L.J. 843, 855 (1998) (citations omitted); Alan Calnan, The Insurance Exclusionary Rule Revisited: Are Reports of Its Demise Exaggerated?, 52 Ohio S. L.J. 1177, 1178 (1991) (citations omitted); Schwarzer, 132 F.R.D. at 587.

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D. The Grays and Cypress are not entitled to review and cannot show plain error or an abuse of discretion.

The Grays and Cypress are not entitled to even plain-error review if their enumeration is about argument, not evidence.11 But even if they were entitled to some sort of review, it would have to be for “plain error” because they failed to properly object at trial. See, e.g., Chrysler Grp., LLC, 303 Ga. at 369; O.C.G.A. § 24-1-103(d). Yet the trial court committed no error. The Grays and Cypress also failed to prove any of the other elements—an obvious error that affected the trial’s outcome and seriously undermined its fairness—needed for “plain error.” See Chrysler Grp., LLC, 303 Ga. at 370.

Most importantly, the Grays and Cypress have not shown that the trial court committed an “error”—much less one “that has not been ‘affirmatively waived.’” Chrysler Grp., LLC, 303 Ga. at 370

(quoting Gates, 298 Ga. at 327). For one thing, the trial court did not

11 See Hill v. State, No. S20A0781, 2020 WL 6122196, at*5 (Ga. Oct. 19, 2020) (citation omitted) (holding that plain-error analysis does not extend beyond rulings on evidence); Keller v. State, 308 Ga. 492, 497 (2020) (citations omitted) (same); Ross v. State, 296 Ga. 636, 639 n.6 (2015) (explaining in dicta that “with regard to ‘[r]ulings on evidence,’ a court is allowed ‘to consider plain errors ‘affecting substantial rights . . . .’”); O.C.G.A. § 24-1-103(d) (allowing plain-error review of evidentiary rulings affecting substantial rights).

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err by admitting evidence of insurance when Verner had to prove insurance coverage to hold Cypress directly liable. See Smith, 223

Ga. App. at 55. For another, the Grays and Cypress “affirmatively waived” any error by demanding evidence of insurance and arguing that whether Cypress “is subject to direct action” is an “issue[] for determination by the jury.” V10-266 (emphasis omitted). With no error, they cannot show “plain” error.

Even if the trial court had erred and even if the Grays and Cy- press had not waived the error, they have not shown the second element in plain-error analysis—that the error is “clear or obvious.”

Chrysler Grp., LLC, 303 Ga. at 370 (quoting Gates, 298 Ga. at 327)

(internal quotation marks omitted). It is neither “clear” nor “obvious” how the trial court could do anything other than admit evidence of insurance in a direct action that arises from a statute requiring proof of insurance. See Smith, 223 Ga. App. at 55. That’s all the more so since Georgia evidentiary rules allow evidence of insurance in direct actions. See O.C.G.A. § 24-4-411.

As for the third element, the Grays and Cypress cannot show that the trial court’s ruling “‘affected [their] substantial rights’ by

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‘affect[ing] the outcome of the trial court proceedings.’” Chrysler

Grp., LLC, 303 Ga. at 370 (quoting Gates, 298 Ga. at 327). In brief, admitting evidence needed to prove a direct-action claim does not

“affect” the opposing party’s “substantial rights.” Nor does it affect the outcome of the proceedings within the rule’s meaning.

Finally, the Grays and Cypress cannot prove the fourth element—that admitting evidence of insurance in a direct action against an insurer “seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Id. (internal quotation marks and brackets omitted). They have pointed to no cases holding otherwise. If anything, the approach that they ask the Court to take would undermine the integrity of the proceedings—and the judiciary—by creating a new loophole for insurers trying to avoid liability.

Even so, if the Court were of the view that an off-the-record objection sufficed, nothing in the record suggests that the trial court abused its discretion. See Williams, 328 Ga. App. at 880 (quoting

Frazier, 387 F.3d at 1259). Verner’s attorney was well-within the

“wide leeway” he has “during closing argument.” Smith v. State, 279

Ga. 48, 50 (2005) (citations omitted). No Georgia court has found an

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abuse of discretion in these circumstances. No Georgia court has re- versed a jury verdict in a direct action against an insurer simply because of a reference to insurance.

* * *

The approach that the Grays and Cypress ask the Court to take is as impractical as it is illogical. Prove that an insurer is subject to a direct action, but not too persuasively. Produce evidence of insurance, but don’t argue about it. Respond to arguments, but not too forcefully. This approach would eviscerate the purpose of the direct- action statute and make plaintiffs in direct actions hopscotch from one razor’s edge to another.

What the Grays and Cypress propose is not what the legislature had in mind when it enacted the direct-action statute. Nor is it what the legislature envisioned when it made an explicit exception in O.C.G.A. § 24-4-411 for direct actions.

At bottom, Cypress is trying to defeat the purpose of the direct- action statute (and dragging the Grays along as human shields), hop- ing that, although the legislature closed the loophole in the old direct-action statute, the Court will open a new one in the evidence

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code. But no Georgia court has done what it urges here. The Court should therefore decline the invitation to be the first and affirm judgment below.

III. Verner’s tax returns are irrelevant and inadmissible— especially since he did not claim lost wages.

Tax returns are not typically discoverable—let alone admissible. See, e.g., S. Outdoor Promos., Inc. v. Nat’l Banner Co., 215 Ga.

App. 133, 134–35 (1994); Borenstein v. Blumenfeld, 151 Ga. App. 420,

421 (1979). They are inadmissible because they are irrelevant. See

O.C.G.A. §§ 24-4-401 (defining “relevant evidence” as evidence that tends to make the existence of a “fact of consequence” more or less probable), 24-4-402 (“Evidence which is not relevant shall not be admissible.”). As the Grays and Cypress’s attorney explained to the jury, Verner did not claim lost wages. V13-15:12–15. “So,” he said,

“what’s our case about? We expect the evidence in this case to be that

Mr. Verner’s been a lifelong sufferer of back pain.” Id. 15:18–20. Ver- ner’s tax returns do not make his back pain more or less likely.

Clamoring to make taxes relevant, the Grays and Cypress argue that Verner’s cousin inadvertently opened the door to the topic

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by testifying, “I just learned . . . he was having to go for food to get, have something to eat.” Appellants’ Br. 30 (emphasis omitted). They say this has nothing to do with “Verner’s feelings about any lost capacity to work.” Id. at 32 n.10. But the testimony was explicitly about how Verner “felt”:

Q. How has he felt since he’s not productive anymore? A. We, it’s, you know, Lemuel’s a, he takes a lot of, like I said, he takes a lot of pride in himself, and I know it eats away at him, I guess, inside that he’s not able to get out there and help, and help other people. And, you know, I just learned, and it, you know, really hurts me, just learned that he was having to go for food to get, have something to eat. Q. What do you mean go for food? A. (indiscernible crosstalk) MR. SMITH: Judge -- THE COURT: Hold. Sidebar . . . (Whereupon, a sidebar was held) MR. SMITH: Judge, that’s exactly what we talked about. (Indiscernible crosstalk whispering) no one’s fault. So, I think we need a curative instruction on that. THE COURT: Okay. So, when do you want to -- MR. CATHEY: And, Judge, I didn’t -- THE COURT: I understand. But he just needs to under-- MR. SMITH: I tell you what, I won’t go with curative, but maybe Mr. Cathey needs to remind him of what the ruling was. MR. CATHEY: Yeah, I will. I will. THE COURT: Okay.

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(Whereupon, the sidebar was concluded)

V15-47:14–48:12 (emphasis added). Not once did Verner’s cousin mention income. The Grays and Cypress apparently saw how tenu- ous the relation to income was and declined a curative instruction.

If anything, by excluding Verner’s tax returns, the trial court saved the Grays and Cypress from arguing that Verner did not lose all that much since he was already poor. See Appellants’ Br. 3 (emphasis omitted) (arguing that even if “the collision left [Verner] des- titute,” he “was not earning significant business income immediately before the accident”). Though some may think it quaint, work has inherent value. Voltaire, Candide ch. XXX, in The Works of Voltaire:

A Contemporary Version (William F. Fleming trans. 1901), available at https://bit.ly/37jSU37 (“[O]ur labor keeps off from us three great evils—idleness, vice, and want.”).

Besides, tax returns are not an accurate measure of income in the usual sense. See, e.g., Swoope v. CSX Transp., Inc., No. 4:13-cv-

0307-HLM, 2015 WL 12564948, at *12 (N.D. Ga. July 29, 2015)

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(granting motion in limine to exclude plaintiff’s tax returns).12 Even in lost-wages cases, tax returns contain a slew of irrelevant information—deduction, credits, and so on. Take Cypress’s, for example.

They would show that it has a consolidated federal income tax allo- cation agreement with Warren Buffett’s Berkshire Hathaway, Inc.13

That’s obviously irrelevant. So are Verner’s tax returns.

The trial court thus correctly excluded Verner’s tax returns.

Yet the trial court’s ruling need not be correct; it only need be within its discretion. And it is. See Williams, 328 Ga. App. at 880 (quoting

Frazier, 387 F.3d at 1259).

CONCLUSION

For these reasons, the Court should affirm the jury’s verdict and the trial court’s order denying the motion for a new trial.

This submission does not exceed the word count limit imposed by Rule 24.

12 See, e.g., Derek Thompson, Do Trump’s Taxes Show He’s a Failure, a Cheat, or a Criminal?, The Atlantic (Oct. 5, 2020), available at https://bit.ly/3qQB1ky. 13 See Cal. Dep’t Ins., Report of Examination of the Cypress Insurance Company as of December 31, 2016, 4–5, available at https://bit.ly/3qKBjJr.

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