This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-2461

James Dillon, et al.,

Appellants,

vs.

Susan Hasskamp,

Respondent.

Filed July 22, 1997

Affirmed

Lansing, Judge

Sherburne County District Court

File No. C8951310

Robert Edwards, Edwards & Malzahn, Ltd., 229 Jackson Street, Suite 105, Anoka, MN 55303 (for Appellants)

Kevin P. Hickey, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Short, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

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

LANSING, Judge

The district court ordered attorneys' fees to be paid by the claimants in a personal injury action after declaring a mistrial for their attorney's misconduct. The claimants appeal the assessment and an award of costs and disbursements under the cost-shifting provisions of Rule 68 on offers for judgment. Because the district court did not abuse its discretion in ordering the attorneys' fees or in allowing costs and disbursements, we affirm.

FACTS

The question precipitating the mistrial related to Susan Hasskamp's insurance coverage. Hasskamp had been sued by James Dillon and Marie Grant Dillon for injuries the Dillons sustained in a three-vehicle accident. The Dillons served a written interrogatory on Hasskamp, requesting information on any liability insurance coverage that would cover the accident. Hasskamp answered that she held a policy with a $100,000 limit. About six months later, Hasskamp's attorney contacted the Dillons' attorney and disclosed that Hasskamp had an "umbrella policy" offering coverage up to $1 million.

At trial the Dillons' attorney sought to impeach Hasskamp's credibility by pointing out the discrepancy between what she had answered in response to the interrogatories and the true extent of the insurance coverage she held. On cross-examination, Hasskamp was asked to review her answers to the interrogatories. The Dillons' attorney then stated: "Now that question asks you to indicate here in writing what insurance that you have that would be applicable to this case." The question drew an objection, and the district court judge granted a mistrial based on attorney misconduct. Hasskamp was awarded $4,565 in attorneys' fees.

The case was retried one month later. At the close of trial, the jury found Hasskamp 35% at fault for the accident. After off-sets for no-fault insurance that had already been paid, James Dillon was awarded $11,899.21 and Marie Grant Dillon was awarded nothing.

Prior to the initial trial, Hasskamp had mailed to the Dillons an offer for judgment pursuant to Minn. R. Civ. P. 68 in the total amount of $100,000, plus reasonable costs and disbursements. Because the Dillons did not accept that offer and because the verdict amounts were less favorable than the offer, Hasskamp moved for costs and disbursements in the amount of $17,019.24 pursuant to the cost-shifting provisions of Rule 68. The district court granted the motion.

The Dillons appeal (1) the award of attorneys' fees resulting from the mistrial and (2) the award of costs and disbursements pursuant to Rule 68.

D E C I S I O N

I.

The Dillons argue that they should not be liable for fees incurred by Hasskamp in retrying the case because the mistrial was unnecessary. They maintain that it was unnecessary because the question on insurance was permissible to impeach the witness's credibility; and even if the question asked for inadmissible evidence, no prejudice resulted and a mistrial was unwarranted.

Generally, all relevant evidence is admissible. Minn. R. Evid. 402. But "[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness." Minn. R. Evid. 411.

Courts have held that evidence related to insurance coverage is admissible under some circumstances to challenge a witness's truthfulness. See Wilson v. Home Gas Co., Inc., 267 Minn. 162, 167, 125 N.W.2d 725, 729 (1964) (holding it was not error to admit insurance evidence when doctor based testimony about plaintiff's depression on plaintiff's statements that he had no insurance to cover losses); Danielson v. Johnson, 366 N.W.2d 309, 315 (Minn. App. 1985) (holding it was not error to admit insurance evidence to rebut plaintiff's testimony that he had stopped seeing doctor in part because he could not afford continued treatment), review denied (Minn. June 24, 1985).

But Wilson and Danielson are distinguishable from this case in two significant respects. First, they each involve the affirmance of a district court ruling admitting the evidence. Second, in each of those cases the evidence was admitted for the limited purpose of rebutting testimony of the witness rather than challenging the witness's "credibility" in a general sense. See Wilson, 267 Minn. at 167, 125 N.W.2d at 729 (evidence appropriately admitted because "it became relevant to that issue [--the doctor's testimony--] to show that there was no substance to such claim"); Danielson, 366 N.W.2d at 315 (evidence admitted "for the limited purpose of rebutting [Danielson's] statement about treatment").

Because Hasskamp did not testify or present evidence requiring the introduction of insurance evidence to rebut her assertions, Wilson and Danielson do not support the Dillons' argument. There is no requirement that evidence of insurance be admitted for the purpose of impeaching a witness's credibility in general (i.e., as it relates to other statements not about insurance coverage), and therefore, it was well within the district court's discretion to exclude such evidence. See Clark v. Johnson Bros. Constr., 370 N.W.2d 896, 900 (Minn. App. 1985) (repeated references to insurance were inappropriate when issue "was not related to any fact of consequence to the determination of the action."), review denied (Minn. Sept. 19, 1985).

The question of whether to grant a new trial based on attorney misconduct is "wholly within the discretion" of the district court. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994); see also Jack Frost, Inc. v. Engineered Bldg. Components, 304 N.W.2d 346, 352 (Minn. 1981) ("The trial court's decision [refusing to order a new trial] may be reversed only upon a showing of clear abuse of discretion or if conduct was so prejudicial that it would be unjust to allow the result to stand."). Whether to grant a mistrial turns on the existence of prejudice. Johnson, 518 N.W.2d at 600. And the district court is in the best position to judge the extent of potential prejudice. See Anderson v. Rumsey, 398 N.W.2d 670, 672-73 (Minn. App. 1987) ("Questions of prejudicial misconduct with respect to insurance coverage disclosure are 'peculiarly within the discretion of the trial court [judge] who was in a better position to judge than [is the appellate court] the impact of statements made to or in the presence of the jury.'") (citation omitted), review denied (Minn. Mar. 18, 1987).

We agree that the transcript provides little evidence that the Dillons' attorney's statement prejudiced Hasskamp, but it is well settled that evidence about insurance is generally inadmissible and prejudicial, and the decision to grant a mistrial was within the discretion of the district court. The Dillons do not dispute the award of attorneys' fees pursuant to the mistrial ruling. See Erickson v. Hinckley Mun. Liquor Store, 373 N.W.2d 318, 326 (affirming attorneys' fees awarded after mistrial based on attorney misconduct).

II.

The rules of civil procedure encourage settlement of disputes by shifting the burden of costs to the settlement offeree "[i]f the judgment finally entered is not more favorable to the offeree than the offer." Minn. R. Civ. P. 68. But Rule 68 applies only if the offer is made more than 10 days before the trial begins. Id. If the settlement offer is made by mail, the three-day provision of Minn. R. Civ. P. 6.05 applies and such an offer "'must be mailed more than thirteen days before the trial is set to begin.'" Barrera v. Muir, 553 N.W.2d 104, 108 (Minn. App. 1996) (citation omitted), review denied (Minn. Oct. 29, 1996).

Hasskamp mailed a settlement offer to the Dillons on April 23, 1996, and the trial began May 6, 1996, i.e., thirteen days later. Because the offer was not sent "more than thirteen days before the trial was set to begin," the Dillons argue that the cost-shifting provision of Rule 68 should not apply. But the Dillons' objection to the timeliness of the offer was waived when they failed to raise the issue in the district court.

Generally, issues not raised in the district court may not be raised on appeal. Schatz v. Davis, 354 N.W.2d 522, 524 (Minn. App. 1984). While the Dillons objected to the award in a "motion for reconsideration," we have not looked favorably on post-trial motions brought under Rule 60.02 that seek correction of judicial error. See Carter v. Anderson, 554 N.W.2d 110, 114 (Minn. App. 1996) (noting that "it is doubtful that Rule 60.02 can be used as a substitute for appeal based on a perceived judicial error"), review denied (Minn. Dec. 23, 1996). Because the "motion for reconsideration" itself is not authorized by the Rules of Civil Procedure, id. at 113, it cannot serve to preserve an issue for appeal. Cf. Midway Nat'l Bank v. Bollmeier, 462 N.W.2d 401, 404-05 (Minn. App. 1990) (supplemental evidence submitted to district court with motion for reconsideration deemed outside district court record and not considered on appeal), aff'd, 474 N.W.2d 335 (Minn. 1991).

Unless determinative of the court's jurisdiction, objections to timeliness are generally deemed waivable. See, e.g., Doe v. Legacy Broad. of Minn., Inc., 504 N.W.2d 527 (Minn App. 1993) (challenge to timeliness of answer waived by failure to object); Texas Commerce Bank v. Olson, 416 N.W.2d 456, 462 (Minn. App. 1987) (challenge to timeliness of new trial motion waived by failure to object). Because the Dillons failed to raise their objection to the timeliness of Hasskamp's Rule 68 settlement offer in the district court, the objection was waived.

Finally, the Dillons argue that the district court erred by failing to make findings on the reasonableness and necessity of the costs and disbursements sought by Hasskamp under Rule 68. Costs and disbursements must be reasonable and necessary. Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). And when a party has challenged the reasonableness or necessity of an award, we have remanded to the district court for findings on that issue. See Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216, 222 (Minn. App. 1993). But there is no affirmative duty placed on the district court to make such findings.

On appeal the Dillons have raised no specific objections to the reasonableness of the costs, and we therefore affirm the award. See Jonsson v. Ames Const., Inc., 409 N.W.2d 560, 563 (Minn. App. 1987) ("absent a specific finding that the costs were unreasonable the court shall approve recovery of disbursements"), review denied (Minn. Sept. 30, 1987).

Affirmed.