Voegel v. Salsbery

Can a Montana Jury Verdict Be Thrown Out Over a Passing Reference to “Who Pays”? Voegel v. Salsbery, 2023 MT 137

Boland Aarab PLLP

Not ordinarily. In Voegel v. Salsbery, 2023 MT 137, the Montana Supreme Court (5–2) held that a district court abused its discretion when it threw out a $168,500 jury verdict for an injured driver because of two brief statements by her lawyer that the court read as hinting at insurance. Neither statement used the word “insurance,” and the Court found no showing of prejudice, so it ordered the verdict and judgment reinstated.

Key Takeaways

• Montana Rule of Evidence 411 bars evidence of liability insurance to prove fault, and it guides review of lawyers’ statements about insurance at trial (Voegel ¶¶ 13–14 & n.1).
• A court “is not required to grant a new trial simply because the word insurance is spoken.” The question is how and in what circumstances the topic came up (¶ 15, quoting Dias).
• Reading “the state” or “someone else” as a reference to insurance was an “overbroad” interpretation of Rule 411 (¶ 25).
• A brief, isolated comment in an otherwise proper closing, after a three-day trial, was not an “irregularity” that materially affected the defendant’s rights under § 25-11-102(1), MCA (¶ 27).

In this case sheet: At a glance · What the Court held · What changed · Statutes · When it applies · How hard · Related law · FAQ

The lawyers who tried and briefed this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Voegel v. Salsbery?

On June 18, 2018, in Malta, Cheryl Voegel slowed her Jeep to stop for a child waiting to cross the street. A 17-year-old driving a Ford F-150 behind her ran into the back of the Jeep. The defendant admitted negligence, and the case went to trial in May 2022 on causation, damages and Ms. Voegel’s alleged contributory negligence (¶ 2).

Before trial, the court limited any mention of insurance under Rule 411 (¶ 3). Two statements by Ms. Voegel’s counsel became the issue:

• In jury selection. Prospective jurors worried that a defendant would have to pay “for the rest of their life.” Counsel responded that it was “not our concern or your concern as jurors where the money’s coming from” (¶ 5). No one objected.
• In closing. The defense had been allowed to introduce Ms. Voegel’s medical bills, although she no longer sought them (¶¶ 4, 6). Counsel told the jury the bills were “for the medical providers,” so “the burden of taking care of Cheryl doesn’t fall on someone else, doesn’t fall on the state” (¶ 8).

Before closing, the court had warned counsel not to make “any reference to any other payer” (¶ 7). When the defense objected to the closing statement and moved for a mistrial, the court said counsel had been “playing very fast and loose” with its direction. It also said it was “not certain the jury even took great note” of the remark, and it denied the mistrial (¶ 9). The jury found Ms. Voegel was not contributorily negligent and awarded $168,500 in general damages (¶ 10). Weeks later the court granted a new trial, calling the closing reference “highly prejudicial” (¶ 11).

The Supreme Court reversed:

• It agreed with the district court that the jury-selection comments were not prejudicial. Counsel never said the defendant was insured and told jurors not to consider the source of payment (¶ 22).
• The closing remark “did not use the word ‘insurance’ or refer to Salsbery,” did not refer to any other payer of a verdict, and was aimed at medical bills Ms. Voegel was not asking the jury to award (¶ 24).
• At worst it was “an ambiguous reference to the general topic of insurance” that could as easily have meant her own health insurance (¶ 25).
• The comment was “brief and isolated” in a closing focused on the evidence, and the jury awarded “less than two-thirds of the amount Voegel requested” (¶¶ 26–27).

The Court also agreed that the jury foreperson’s affidavit could not be considered under Rule 606(b) (¶ 28).

The dissent. Justice Rice, joined by Justice McKinnon, would have affirmed. In his view the issue was not the scope of Rule 411 but the district court’s authority to enforce its own ruling. He compared the closing remark to the “few words that were well placed” in Willing v. Quebedeaux (¶¶ 33–35).

What did Voegel change in Montana law?

• Rule 411 is about insurance, read narrowly. Words like “the state” or “someone else” are not automatically a reference to insurance. Treating them that way was “overbroad” (¶ 25).
• Rule 411 still reaches lawyers’ remarks. Attorney statements are not evidence, but lawyers “may not circumvent the rule by injecting prejudicial comments about insurance” in argument (¶ 14 n.1).
• Prejudice must be shown on the specific record. The Court reaffirmed that every insurance reference must “stand on its own particular facts,” and contrasted this case with the pervasive misconduct in Anderson v. BNSF Railway and the “devastating” targeted comment in Willing (¶¶ 15, 20, 24).
• A trial judge’s real-time reaction counts. The district court’s own comment during trial that the jury may not have noticed the remark supported reversal (¶ 27).

The Court noted, without deciding, the amicus argument and treatises questioning the empirical basis for a broad reading of Rule 411 (¶ 15 n.2).

Which Montana laws and rules apply?

• M. R. Evid. 411: liability insurance (¶ 13)
• § 25-11-102, MCA: grounds for a new trial, including an “irregularity in the proceedings” (¶ 19)
• M. R. Evid. 606: jurors’ affidavits about deliberations (¶ 28)

When might Voegel apply to you?

• A verdict for you is attacked over a stray remark. A new trial requires prejudice shown on the actual record, not just a mention of payment or insurance (¶¶ 15, 27).
• Jurors raise money worries in jury selection. Counsel may tell prospective jurors not to consider a defendant’s economic status (¶ 22).
• The other side puts in your medical bills. You may explain to the jury what those bills are and are not for, as long as you do not suggest an insurer will pay the verdict (¶ 24).

The line is real: the Court stressed that the comments were “brief and ambiguous” and that counsel “did not suggest Salsbery had insurance to pay the damages” (¶ 29).

How hard is it to reverse a new-trial order in Montana?

Hard:

• Deferential review. A decision to grant a new trial “will not be disturbed absent a showing of manifest abuse of discretion” (¶ 12).
• Legal questions are reviewed fresh. When the ruling rests on the interpretation of an evidentiary rule or statute, review is de novo (¶ 12). That is where Voegel turned: the district court read Rule 411 too broadly (¶¶ 25, 29).
• Close cases split the Court. Two justices would have deferred to the trial judge (¶¶ 30–36).
• Juror testimony rarely helps. A juror’s affidavit about what the jury did or did not consider is generally barred (¶ 28).

Related law and later decisions

Statutes and rules

• M. R. Evid. 411: liability insurance
• M. R. Evid. 606: juror competency; subsection (b) applied
• § 25-11-102, MCA: grounds for new trial. Last amended in 2009; no amendment in response to Voegel.

Later decisions citing this case

• None confirmed yet. An exact-citation search (September 2026) returned no later opinion citing Voegel.

The Boland Aarab Way

Boland Aarab PLLP represented Cheryl Voegel. Samir tried the case in Phillips County, and he and Caitlin handled the appeal. We publish the whole record, including the district court’s criticism and the dissent, because the reasons matter as much as the result. The work that went into this appeal is the work we bring to serious trucking and injury cases, car crash cases and catastrophic injury cases: try the case carefully, then protect the jury’s verdict. When you hire Boland Aarab, you work directly with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Does mentioning insurance at trial automatically require a new trial in Montana? No. “A district court is not required to grant a new trial simply because the word insurance is spoken during trial.” The court must look at how and why the topic came up (Voegel ¶ 15, quoting Dias).

Can a lawyer tell Montana jurors not to consider who will pay a verdict? The Court said it is appropriate to tell prospective jurors not to consider a defendant’s economic status (Voegel ¶ 22). Suggesting that an insurer will pay the verdict is a different matter (¶¶ 24, 29).

Can a juror’s affidavit save a verdict from a new-trial motion? Generally not. Rule 606(b) bars juror affidavits about the effect of matters during deliberations, and the Court agreed the affidavit could not be considered (Voegel ¶ 28).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court and the Ninth Circuit handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Voegel v. Salsbery, 2023 MT 137 (official opinion)
• M. R. Evid. 411
• M. R. Evid. 606
• § 25-11-102, MCA

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.