This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-95-2099

Summit Fidelity and Surety Company,

Respondent,

vs.

Don Stern Enterprises, Inc.,

Appellant,

and

Don Stern Enterprises, Inc., d/b/a Donovan's,

Appellant,

vs.

Summit Fidelity and Surety Company,

Respondent.

Filed May 21, 1996

Affirmed

Stone, Judge*

Hennepin County District Court

File No. 938353

Jon A. Hanson, Norman M. Abramson, Hanson, Lulic & Krall, Suite 500, 920 Second Avenue South, Minneapolis, MN 55402 (for Respondent)

Barry V. Voss, Suite 1740, 701 Fourth Avenue South, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Stone, Judge.

U N P U B L I S H E D O P I N I O N

STONE, Judge

Don Stern Enterprises argues that it is entitled to a new trial because of a number of errors made during trial, including (1) the district court's refusal to dismiss Summit Fidelity's declaratory judgment action after Stern subsequently commenced a breach of contract action; (2) the district court's barring of a number of expert witnesses from testifying due to the tardy disclosure of their identities; (3) allegedly improper statements made by Summit's counsel during closing argument; (4) the district court's use of a special verdict form that Stern claims failed to conform to the evidence; and (5) the cumulative effects of Summit's counsel's allegedly improper actions throughout trial. Stern claims that these alleged errors are so egregious as to call for a new trial. We affirm.

D E C I S I O N

I.

On appeal, this court need not defer to the district court's determinations when reviewing a question of law. County of Lake v. Courtney, 451 N.W.2d 338, 340 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). A reviewing court is not bound by and need not give deference to a district court's determination of a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Minnesota courts have a longstanding policy of encouraging the resolution of insurance coverage disputes in separate declaratory judgment actions. Clemens v. Wilcox, 392 N.W.2d 863, 865 (Minn. 1986). The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. Minn. R. Civ. P. 57.

Stern argues that the district court erred when it denied Stern's request to dismiss Summit's declaratory judgment action after Stern commenced a breach of contract suit. As support for this position, Stern cites Grain Dealers Mut. Ins. v. Cady, 318 N.W.2d 247, 250 (Minn. 1982). Stern argues that Grain Dealers stands for the proposition that a declaratory judgment action is improper when the disputed issue can be resolved in the main action.

In Grain Dealers an insurance company commenced a declaratory judgment action after the underlying legal action was already in progress. Id. at 249. The supreme court held that where the question to be decided is the same in both actions it is improper to grant declaratory judgment. Id. at 250. However, the instant case is procedurally distinguishable from Grain Dealers. Here, Summit filed its declaratory judgment action before Stern filed its breach of contract suit. We do not believe that Grain Dealers is controlling in this case.

We hold that, due to the strong policy support behind resolving insurance coverage disputes through the use of declaratory judgment actions, the district court did not abuse its discretion.

II.

Trial courts have discretion to determine the appropriate sanction for a violation of the discovery rules. Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977). In Minnesota expert testimony should be suppressed for failure to make a timely disclosure of the expert's identity only where counsel's dereliction is inexcusable and results in disadvantage to his opponent. Dennie v. Metropolitan Medical Ctr., 387 N.W.2d 401, 405 (Minn. 1986). The crucial question is whether the late disclosure resulted in any appreciable degree of prejudice. Id.

Stern argues that the district court erred when it decided that certain proposed expert witnesses could not testify regarding their opinions about the origin of the fire because their identities were not disclosed during discovery. Stern asserts that this decision was in error because (1) at least one of the experts was identified by both counsel in their opening statements as a witness who participated in the suppression and investigation of the fire; and (2) Stern's offer of proof indicated that the witnesses would have testified that the cause of the fire was reported to the State of Minnesota as unknown. We are not persuaded by these contentions.

When determining whether to suppress expert testimony, the district court should consider whether the failure to disclose was inadvertent. Norwest Bank Midland v. Shinnick, 402 N.W.2d 818, 823 (Minn. App. 1987). According to the record, during discovery (1) Summit served several interrogatories upon Stern requesting the names of any expert witnesses Stern intended to call; (2) Summit also made three formal demands for supplementation of Stern's discovery responses; and (3) at a motion to compel hearing, the district court directed Stern to provide the dates by which it would disclose the identities of opinion experts. Despite these requests, Stern did not disclose the fact that it intended to call these individuals as expert witnesses until one week into trial. Thus, the record supports a finding that Stern intentionally failed to disclose the names of its expert witnesses. Cf. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (holding that district court did not abuse its discretion when it excluded expert testimony of witnesses about whom plaintiff had known for 18 months and whose disclosure had been required by court order).

Although we might not have made the same ruling to exclude the witnesses, the district court has substantial discretion in this area. The record does not support a finding that the court abused its discretion. Appellant's dereliction was inexcusable, and as a whole the exclusion did not result in an appreciable degree of prejudice.

III.

The decision whether to grant a new trial due to improper argument by counsel rests almost entirely within the discretion of the district court and should not be reversed on appeal absent a clear abuse of discretion. Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989). The primary consideration in determining whether to grant a new trial for improper remarks of counsel is prejudice. Janssen v. Neal, 302 Minn. 177, 182, 223 N.W.2d 804, 807 (Minn. 1974). To raise a claim of misconduct by counsel in a closing argument, the objection must be made on the record before the jury retires. Rogers v. Ponti-Peterson Post No. 1720, 495 N.W.2d 897, 902 (Minn. App. 1993). However, this rule has no application where counsel's argument is so prejudicial that the district court should have taken appropriate action sua sponte. Brabeck v. Chicago & N.W. Ry., 264 Minn. 160, 167, 117 N.W.2d 921, 926 (1962).

Stern argues that it is entitled to a new trial due to statements made by Summit's counsel during his closing argument. Stern asserts that Summit's counsel attacked Stern's attorney and witnesses by implying that they had lied and had withheld notes and diagrams during discovery and from the jury. Further, Stern contends that, despite the fact it did not raise any objection to these statements, Stern is entitled to a new trial because they were so prejudicial that the district court should have sua sponte granted a new trial. We disagree.

Our review of the record reveals that these statements were not so egregious as to call for the court to require a new trial sua sponte. Although we find that Summit's counsel's remarks in front of the jury may have been unprofessional, we cannot say as a matter of law that they are so prejudicial that Stern should be entitled to a new trial. See Johnson v. Washington County, 518 N.W.2d 594, 600-01 (Minn. 1994) (district court's decision not to grant new trial upheld where attorney made inappropriate comments in closing arguments, improperly questioned a witness over objection about issue barred by the court and misstated law of damages to the jury).

IV.

On appeal, evidence must be considered in the light most favorable to the prevailing party, and the verdict will not be disturbed unless it is manifestly contrary to the evidence. Schendel v. Hennepin County Medical Ctr., 484 N.W.2d 803, 809 (Minn. App. 1992), review denied (Minn. July 16, 1992). A jury verdict will be sustained if it is possible to do so under any reasonable theory of evidence. Dang v. St. Paul Ramsey Medical Ctr., 490 N.W.2d 653, 659 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).

Stern also argues that the district court erred by not sua sponte modifying the special verdict form to conform to the evidence by excluding an alternative causation for the fire. Stern asserts that this was error because there was not any evidence adduced at trial that reasonably shows this fire was intentionally set. We disagree.

The special verdict form provided that the jury could find that Donovan Stern either set the fire at Donovan's himself or procured the assistance of someone else to set the fire. The record reveals that after reading the form the district court judge asked if there was anything that either party would like to add before the jury left to deliberate. Counsel for both parties responded in the negative. However, after the jury verdict was returned, Stern, in its motion for a new trial, alleged that the special verdict form improperly permitted the jury to find that he procured another to set the fire.

A review of the record shows that there was testimony which indicated that Donovan Stern had a motive to set the fire because of the poor financial condition of Donovan's. In addition, there was expert testimony presented at trial to indicate that, although there was no direct evidence of an accelerant found at the scene, the manner in which the fire progressed suggests a strong possibility that one was used. Because direct evidence of arson is not usually available, circumstantial evidence that supports the inference that a fire was intentionally set is sufficient. See Quast v. Prudential Property & Casualty Co., 267 N.W.2d 493, 495 (Minn. 1978) (proof of a fire's incendiary nature and of the insured's financial difficulties which suggest a motive is enough to support a jury verdict for the insurance company). Clearly, under the standard set forth in Quast there was more than enough evidence presented to support the jury's finding that Stern set the fire or procured the help of another to have it set.

V.

Stern also asserts that it is entitled to a new trial because the cumulative effect of opposing counsel's attacks on the "integrity of the civil justice system in general and Donovan Stern in particular" was sufficiently egregious so as to require a new trial. Stern argues that the conduct of opposing counsel was of such a nature that this court should grant a new trial despite the fact that Stern failed to object during trial. Stern contends that the actions that support such relief are that Summit's counsel (1) made no reference to the theory that an accelerant was used to start the fire at Donovan's during his opening statement in his case in chief; (2) made objections to the testimony of an expert about smoking materials stating that the court had already barred this line of questioning when in fact there was no such bar; (3) misled the district court into admitting a photograph into evidence; and (4) submitted a false affidavit that said he did not recall receiving an offer of proof as to how Stern's experts would testify. These arguments are without merit. [1]

The trial judge is in the best position to determine whether an attorney's misconduct has prejudiced the jury. Johnson, 518 N.W.2d at 601. Here, there were never any objections placed on the record for any of the events that Stern now claims were so egregious as to warrant a new trial. At worst they were overargumentative. Based upon the record before this court, we cannot find that Stern is entitled to a new trial.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]At this time we note that Summit filed a motion to strike this portion of Stern's appeal. We have decided against granting this motion and will consider this issue.