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IN THE COURT OF APPEALS OF IOWA No. 8-582 / 08-0136 Filed November 26, 2008

SHIRLEY L. RICHARDSON, Plaintiff-Appellee, vs. AMERICAN FAMILY INSURANCE COMPANY, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

Insurer appeals from judgment entered in favor of plaintiff in a suit for contractual underinsured motorist benefits. AFFIRMED.

Ted J. Wallace, Davenport, for appellant.

M. Tod Melton and Thomas J. Potter of Ludens Potter Burch Melton & Calvo, Morrison, Illinois, for appellee.

Heard by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.

2 HUITINK, P.J. American Family Insurance Company (American Family) appeals from judgment entered in favor of Shirley Richardson on her suit for contractual underinsured motorist benefits. American Family contends the district court

erred in excluding evidence; in restricting its closing arguments; and in submitting an eggshell plaintiff jury instruction. In addition, it contends it was denied a fair trial by cumulative errors. We affirm. I. Background Facts and Proceedings. Richardson was involved in a motor vehicle accident in which she was hit from behind. Following the accident, Richardson underwent four neck and cervical surgical procedures at the University of Iowa Hospitals. She sought coverage for these procedures under her underinsured motorist benefits coverage through American Family. American Family denied that the surgeries were caused by the motor vehicle accident. The matter went to trial on the sole issue of whether Richardson's four surgeries were proximately caused by the motor vehicle accident. At trial American Family sought to introduce a disability insurance application, which had been completed prior to the accident at issue. It also sought to introduce a medical record from Mayo Clinic from before the accident. Richardson moved in limine to exclude the items. American Family argued that other lawsuits and applications for disability were relevant to Richardson's motivation for making the instant claim. The district court sustained Richardson's objections to the exhibits on grounds they were more prejudicial than probative. The court did not exclude questioning concerning preexisting conditions or prior medical complaints. American Family was allowed to question Richardson about

3 the medical matters asserted on the disability application and the Mayo medical record. Richardson introduced the testimony of Dr. Vincent Traynelis, the operating neurosurgeon, who opined that the accident was related to Richardson's later neck surgeries. He testified that he based his opinion upon the patient's history, i.e., Richardson stated that she had no significant history of neck problems before the accident. During cross-examination, American Family asked if Dr. Traynelis was aware of Richardson's prior treatment for back and neck issues and how that knowledge would change his opinion. Dr. Traynelis testified that Richardson had degenerative disk disease that may or may not have required surgery. However, the accident "acutely created a symptomatic situation out of one that was relatively asymptomatic." American Family introduced the testimony of Dr. Thomas Carlstrom, also a neurosurgeon, who had examined Richardson's medical history and documentations. Dr. Carlstrom noted that Richardson had an extensive history of both neck and low back pain prior to the accident. He stated that Richardson had sustained a muscular injury in the accident. He opined that the surgery performed on Richardson was not necessary for her complaints from the automobile accident and that it was "not a good operation for get ting rid of neck pain, [it] doesn't usually work." After Richardson had finished testifying, American Family sought to introduce into evidence one of Richardson's interrogatory answers and to read into the record portions of Richardson's prior deposition. The district court ruled that it would allow American Family to recall Richardson and question her about

4 the contents of the interrogatory and the deposition, but it would not allow the items to be introduced in the manner proposed by American Family. American Family did then recall Richardson and further question her concerning prior history of neck and back pain and treatment. The district court informed the parties it intended to offer the eggshell plaintiff instruction "because Dr. Traynelis did testify that this accident made her degenerative disk disease become symptomatic." American Family objected, arguing that the instruction was improper since it had not been allowed to introduce evidence of her prior disability. The court overruled the objection. Just before closing arguments, Richardson asked the district court to limit American Family's closing arguments. Richardson asked that American Family not be allowed to argue that the surgeries were not needed. I think that he's limited to arguing that it did not

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