### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 2000 Session CALVIN JOHNSON v. ALLSTATE INSU RANCE COMPANY v. STEV EN UTAH JOHNSON A Direct Appeal from the Circuit Court for Grundy County No. 5954 The Honorable Buddy D. Perry, Judge

No. M1999-01639-COA-R3-CV - August 16, 2000

Insured sued his insurer to recover policy coverage due on a fire loss to his automobile after the insurer den ied coverage under the fraud provision of the policy. Judgment was entered on a jury verdict for the insured, and the insurer has appealed.
Tenn.R.App.P. 3, Appea l as of Right; Judgme

nt of the Circuit C

ourt Affirmed and Remanded.
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER ,J., joined. Michele E. Cooper; Michael P. Mills, Nashville, For Appellant, Allstate Insurance Company Howell G. Clements; Carl E. Shiles, Jr., Chattanooga, For Appellee, Calvin Johnson Earlene Y. Speer, Altamont, For Appellee Steven Johnson OPINION Defendant,

Allstate Insurance Company, appeals the judg ment of the trial court on the jury verdict awarding plaintiff, Calvin Utah Johnson, $11,825.00.
In December, 1995 , plaintiff purch ased a 1994 Mitsubis

hi Eclipse automobile

primarily for his son, Stephen Johnson, and the vehicle was titled in both names. Plaintiff procured insurance coverage from defendant, Allstate. Steven Johnson was in the U. S. Army at the time that the vehicle was purchased and used the vehicle when he was home on leave. Steven was discharge d from the army in F ebruary of 1996, and on or about March 25, 1996, the vehicle was subjec t to a t otal fir

e loss. Plaintiff reporte

d the total fire los s claim to Allstate on March 26, 1996, and after an investigation, Allstate denied th e claim on the basi

s of t he fr aud pro vis ion of t he p oli cy. On March 13, 1997, plaintiff filed suit against Allstate to collect the proceeds of the policy alleging that the fire was from an unknown or igin which totally

destroyed t

he vehicle. Allsta

te’s answer den

ie d that-2-

plaintiff was entitle

to recover based upon the policy provisions dealing with fraud on the part of an insured. Allstate also filed a counterclaim a gainst plaintiff

alleging that A

llstate is entitled to the bad faith penalty, because plaintiff did not bring the a

ction in good fait

h. Allstate also fil

ed a third party complaint against Steven Johnson for judgment over ag ainst him in the event that liability was adjudged aga

inst Allstate in the o

riginal complain

t. The case was tried before a jury and was submitted to the jury on special interrogatories. The interrogatori

es and answers th

ereto are as fo

llows:
1. Did the Plaintiff

make material misrepresentation on the proof of loss with the intent to deceive?
Answer: No.
2. Was the fire loss to th e 1994 Mitsubishi Ecl ipse intentional, in vio lat ion of t he “a cci den tal los s” p rov isi on o f th e po lic y?
Answer: No.
3. Did Steven Utah Johns on, son of Calvin

Utah Johnson, cause the willful burning of the 1994 Mitsubishi Eclipse?
Answer: No. 4. Did Calvin Utah Johnson cause or consent to the willful burning of the 1994 Mitsubishi Eclipse?
Answer: No. 5. Is Calvin

Johnson entitled to a verdict of $11,825 as established by the NADA book as the fair market value of the vehicle?
Answer: Yes. Judgmentwas entered on th e jury verd

ict for plaintiff i

n the amount

of $11,825.00. Allstate’s post-trial motion for a new trial or in the alternative for judgment

notwithstanding the verdict was denied, and Allstate has appealed presenting the following issues, as stated in its brief:

I. Did the Court err in failing to define an “insured” as including Steven Johnson as prescribed by the Allstate Indemnity Tennessee Automobile Policy?-3- II. Did the Cour t err in ruling that the multiple prior fire losses of Calvin Johnson were not relevant to the case-in-chief, prevent i ng Allstate from proving two of

the three elements of its arson defense? III. Did the Court err in bifurcating the trial of this matter?
IV. Was Allstate unduly prejudiced by theCourt’s procedural rulings to the point of prec

luding it from rece

iving a fair trial ?
V. Did the Court err in not finding that Calvin Johnson failed to meet his burden of proving

the fir e los s to the vehicle was accidental, as required by the policy?
VI. Did the Court improperly instruct the jury on Allstate’s burden of establishin

g the defense of misrepresentation of the loss, thereby committing reversible error?
VII. Did the Court err in making a numb er of invalid evidentiary rulings, prejudic

ing Allstate to the p

oint of precluding

a fair trial?
VIII. Did the Court err in proffering an incorrect jury verdict form, thereby confusing the jury and committing prej udicial, revers ible error?
As a preliminary matter, we observe that technically Allstate is not entitled to review of many of its issues. Tenn. R.App.P. 3 (e) prov ides in pertinent p

art: Provided, however, that

in all cases tried by a jury, no issue presented for review shall be p

redicated upon e

rror in th

e a dmission or exclusio n of evidence, jury instructions granted or refused, misconduct

of jurors, partie

s or counsel,

or other action committed or occurring duri ng the trial of the case, or other ground upon which a new trial is sought, unle ss the same was specific ally stat ed in a mot ion for a new trial; otherw ise such issues will be t reated a s waived. . . . (Emphasis added). The motion for new trial filed by Allstate does not specifically set out any alleged error, but refers to its memorandum of law in support of its motion for a new trial. Normally, a memorandum of law is not filed as part of the record, although it is a part of the record in this case. Moreover, the specifications of the alleged errors in the memorandum do not comply

in many instances with the specificity

required by Rule 3(e). However, in this in stance, the Court

will treat the memorandum as a part of the motion for a new trial and consider the issues as presented. We will now conside

r the issues:-4- I. Did the Co urt err in failing to define an “insured” as including Steven Johnson as prescribed by the Allstate Indemnity Tennessee Automobile Policy? Allstate’s first issue is somewhat confusing. It appears to the Court that the first issue is re

ally a nonissue, inasmuch

as the jury found th

at neither pla

intiff nor Steven intentionally set fire to the vehicle. Nevertheless, we will discuss the issue, be ca use Allstate’s as sertions in its brie f are incorrec

t. Allstate asserts

that the insured is defined as Calvi n Johnson and any f

amily member and in

dividuals utilizing the insured’s automobile, which included Steven and Linda Johnson. Allstate points out that Steven Johnson was residing at the residence owned by Calvin Johnson, is related by blood, was the nameddriver on the declaration page, was operating a covered automobile, and thereby is an insured under the policy. What A

llstate fails to recognize is that the definitio n relied upon in its a

ssertion is the definition that applies only to the liability part of the policy. The definition applicable to Part D, Coverage For Damage To Your Automobile, is contained in the definition section of the policy, and states: DEFINITIONS

A. Throughout this policy, “you” and “your” refer to: 1. The “named insur

ed” shown in th

e Declarations; and 2. The spouse if a resident of the same household.
T he trial court correctly noted that Steven Johnson was not an insured as to Par t D of th e policy. Moreover, even if Steven Johnson was considered an insured under Part D of the policy, the provision of the policy relied upon by Allstate would not p revent covera

ge to Calvin

Johnson. The policy provides:

Fraud
We do not provide cover age for any “insured” who has made fraudulent

statements or

engaged in

fraudulent conduct in connection withany accident or

lo s s for which cover

age is sought under

this policy. Apparently, Allstate misconstrues the language of this provision. We view it as saying that Allstate provides no coverage for an insured who has made fraudulent statements or engaged in fraudulent

conduc t. It does not state that coverage is not provided for any insured when any other insured has made fraudu

lent statements or

engaged in frau

dulent conduct. For

the reasons state

d, this issue is without meri

t.-5- II. Did the Cour t err in ru ling that the multiple prior fire losses of Calv in Johnson were not relevant to the case-in-chief, prevent in g Allstate from proving two of the threeelements of its arson defense? Allstate asserts that the tr

ial court’s ruling

that C alvin John son’s prior fire losses were not relevant to the case in chief precluded Allstate from proving two of the three requirem

ent elements of an arson defense; t

hat is, motive for de

struction of the pr

operty, and the op

portunity to coll

ec t insurance proceeds by being fully aware of the claims process. Allstate contends that the evidence was relevant under Rule 401, Tenn.R.Evid., since the case involves allegations of destruction of property due to arson and

insurance fraud. Allstate also argues that plaintiff’s prior fire losses were admissib l e under Tenn.R.Evid. 404 (b) for the purposes of showing knowledge, motive, common scheme, or plan, op portunity, fraudulent intent, and absence of mistake or accident. The pertinent rules provide: Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to makethe existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w ithou t the evidence. Rule404. Character evidence not admissible to prove conduct; exceptions; othe

r crimes.

* * * (b) O t her Crimes, Wron gs, or Acts.

- Evidence of oth

er crimes, wrongs, or acts is not admissible to prove the character of a person in order to show acti on i n conformity with the character trait. It may, however, be admissible for other purposes. The cond itions which must be satisfied before allowing such evidence are: * * * (2) The court must dete rm ine that a material issue exists other

than conduct conforming with a character trait and must upon reque

st state on th

e recordthe material issue, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
Rule403. Exclusion of

relevant evidence on grounds of prejudice, confusion, or waste of time. - Although relevant, evidence may be excluded if its probative value is su bs tantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of-6- undue delay, waste of time, or needles presentation of cumulative evidence.
In Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439 (Tenn. 1992), the insured sued to recover policy proceeds for fire damage to her home. In holding that the trial court had not erred in excluding evidence of plaintiff’s allegedly prior fraudulent dealings with other insurers, the Court said: [T]he defendant cont ends that given the difficulty of proving arson

such evidence of

the plaintiff’s a

lleged past deali

ngs should

have been admitted. The defendant cl aims th e exclusion of this evidence deprivedit of the ability to show the plaintiff was consciously engaged in a scheme of lying to insurance companies for monetary gain.
We disagree that suc

h evidence must

necessarily be admitted. An in quiry into charac

ter is not rejecte

d so often becaus

e it is irrelevant;

“on the contrary it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a b ad ge neral record and deny him a

fair opportunity to defend against a particular charge.” Michelson v. United States , 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948). T his legal maxim appl

ies in civil cases ; litigants must be accountable only for the cause of act io n brought against them or affirmative defenses asserted.
In Tennessee admis sibility of evidenc e is w ithi n the sound discretion of

the trial judge. When arriving at a determination to

admit or exclude even that evidence which is considered

relevant trial c

ourts are generally accorded a wide degree of latitude and will o nly be overturned

on appeal where there is a showing of abuse of discretion. Strickland

v. City of Lawrenceburg, 611 S.W.2d 832 (Tenn. Ct. App. 1980); Tennessee Rules of Evidence 401; Austin v. City of Memphis , 684 S.W.2d 624 (Tenn. Ct. App. 1984); Inman v. Aluminum Co. of America , 697 S.W.2d 350 (Tenn. Ct. App. 1985). Id. at 442-43. Considering the record in this case as a whole, we do not find that the trial court abused his discretion in his ruling concerning the proposed evidence. Moreover, a review of the record reveals that the trial court al

lowed the evidenc

e into the record

in connection with the allegation of material misrepresentation, and that Allstate’s counsel cross-examined the plaintiff in

some detail concerning the prior fire losses

. It appears that all of the evidence concerning the prior fire losses was introduced, and, therefore, if there was any error in the trial court’s initi

al ruling it was ce

rtainly harmless.

This issue is without meri

t.-7- III. Did the Court err in bifurcating the trial of this matter? Allstate filed a counterc

laim against Calvin J

ohnson alleging tha

t Calvin Johnson’s a

ctio n against Allstate is not in good faith and that pursuant to T.C.A. § 56-7-106 (1994) Allstate is entitled to damages not ex cee ding twenty-five percent of the amount of the loss claimed under the policy. The trial court bifurcated the trial as to the original complaint and the counter-compla

int. Allstate asserts that by doing so it was prevented from putting on evidence of its good faith in denying the claim. Allstate’s

offer of proof c

onsiste d prima

rily of additional p

roof concernin

g Calvin Johnson’s prior fire losses and insurance c

laims, all of which

he admitted during

his cross examination.
In Ennix v. Clay , 703 S.W.2d 137 (Tenn. 1986) this Court said: The decision whether or not to sever the issues for the jury

must be left to the sound discretion of the trial judge, and the interests of justice will warrant a bifur

cation of the issue

s in only th e most exceptional cases and upon a strong showing of necessity. In making its decision the trial court should co nsider the possibility of juror confusion, the risk of prejud ic e to either party, and the needs of judicial efficiency. Above all, the issues at trial must n ot be bifurcated

unless the issue to be tried is so distinct and separ able from the othe rs that a trial of it alone may be had without injustice. 703 S.W.2d at 139. While we have some doub

ts that the trial co

urt properly exe

rcised its discre

tion in regard to bifurcation in this case, an examination of the proof allegedly kept from the jury indicates that if the trial court was in error in bifurcating the issues, the error was actually harmless error. Therefore, this issue is without meri

t. IV. Was Allstate unduly prejudiced by the Court’s procedural rulings to the point of prec

luding it from rece

iving a fair trial ? Al lstate asserts that the trial court made several erroneous procedural rulings which pro hibite d it from having a fair trial. First, Allstate claims that the trial court erred in allowing Carlene Y. Spear, a general session judge in Grundy County, to act as counsel on behalf of Steven Johnson. Allstate argues that Spears’ position as an active member of the local judic

iary unduly and unf

airlyprejudiced Allstate. T.C.A. § 16-15-500

2 (1994) provides : 16-15-5002. Time judge must devote to office - Practice of law or other employment. -(a) All general sessions judges in Class 1, 2 or 3-8- counties shall devote

full time to the duties of such office and shall be prohibited from the practice of law or any other employment wh ic h conflicts with the performance of their duties as judge. (b) General Sessions

judges in class 4 thr

ough class

8 counties shall

be considered

part-time judges and shall not be prohibited from the practice of law or othe r g ainful employment while serving as judge except to the extent such practice or emp loyment constitutes

a conflict of interest. Grundy county falls under section ( b). Therefo re, Spear is allow ed to practice la

w unless a conflict of interest is pre

sent. Allstate has

f ailed to show a ny conflict of interest caused by Spear’s representation. Further, Allstate did not object to her repre sentation at trial. Therefore, we find no reversible error. Allstate asserts that the trial court’s second procedural error was in allowing plaintiff’s counsel and Steven’s counsel to confer regarding their peremptory challenges. Allstate insists that this gave plaintiff an unfa

ir advantage an

d violates T.C.A. § 2

2-3-105 (1994), w

hich reads: 22-3-105. Peremptory challenges – Effect of consolidation of c

ases. (a) Either party to a civil action maychallenge four (4) jurors without assigning any cause. (b) In the event ther e is more t han one (1) part y plaintiff or more than one (1) party defendant in a civil action, four (4) additional challenges shall be allowed to such side or sides of

the case; and the trial court shall in its discretion divide the aggregate number of challenges between the parties on the same side which shall not exceed eight (8) challenges t

o the side, regar

dless of the number

of parti e s. Even when two (2) or more cases are consolidated f or trial p urposes, the total challenges shall be eight (8), as herein provided.
In State v. Simon , 635 S.W.2d 498 (Tenn. 1982), our Supreme Court considered the method for exercising peremptory challenges in a criminal case. The trial court prohibited conference among counsel when they sought to collaborate with each

other in the exercise of peremptory challenges. The Supreme Court no ted that the Tenne ssee Rules of Criminal Procedure do not prohibit such consultation and held that the preferable practice is to avoid duplication. Id. at 508.
We find nothing in the Tennessee Rules of Civil Procedure or

Tennessee Code t

hat prevents parties from collaborating in the exercise of peremptory challenges. The Simon court noted this fact and stated that the method of exercising pere mptory challenges is left to the discretion of the trial court. Id . at 507. We find no error in allowing counsel to collaborate. Allstat e asse rts that the third procedural error involves the court ruling regarding rebuttal witnesses. Tenn.R.Evid. 615, Exclusion of Witnesses, was invoked for the trial. At the conclusion of Allstate’s proof, plaintiff’s counsel announced that he intended to call Linda Johnson as a rebuttal-9-

witness, and a

discussion was had concerning the proper procedure for his preparing the witness for testimony. The rec

ord reveals the f

ollowing colloquy be

tween counsel an

d the court. MS. COOPER: With

all due respect t

o the Court, it’s my understanding that anything that is

t estified to in this court cannot be relayed to an individual who’s going to be called to testify.
MR. CLEMENTS: Well, I want to make s ure. I’m not so worried about that. Obviously I cannot put a rebuttal witness on and – t o me, it’d be malpractice if you do n’ t tell them what you’ re going to ask them.
THE COURT: I don’t think t here’s any prob

lem your telling the

m, the witnesses, the questions you’re going to ask.
MR. CLEMENTS: I want to tell the witness what I’m going to ask that witness.
THE COURT: Well, out of an abundanc e of caution, don’t tell them what’s been said in the co urtroom, but cert

ainly if you put a

witness on you’ve not talked

with, that’s dange

rous and you’ve go

t a right toask him.
MR. CLEMENTS: And I’m go ing to tell him exact

ly the questions I’m going to ask him and what it relates to. I don’t intend to relate that A, B, C said D, E, F, but I’ve got to give themsome factual background, do you know so- and-s o and so-and-so. I mean, otherwise they won’t know what I’m talking about, but I’m not going to say that somebody testified to so-and-so that’s a non-party.
I just want to

make that clear, that

I’ve got the right to do that. I don’t think there’s any question about it, but I do.
THE COURT: I don’t see h ow you can call a r

ebutt al w itness unless you do. MS. COOPER: I agree, Your Honor.
THE COURT: I’m going to tr ust that I have – and it’s been evidenced today – very good lawyers in this courtroom to dealwith fromall sides, and obviouslyI’ve known Mr. Clements for 25 years. I’m confident I’ve got ethical, competent attorneys, and I’m not going to try to give you any guidelines other than that. I think I can rely on your judgment-10- to stay within the rules, and I suspect you’ll make every effort to clearly stay within the rule

s. Allstate urges tha

t the trial court di

d not comply with that

part of Rule 615 wh

ich states: “The court shall order al l per sons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness.” We no

te that the trial c

ourt specificall

y stated, “Well, out of an abundance of caution don’t tell them what’s been said in thecourtroom.” We believe this statement by the trial court complies with the spirit of Rule 615. The court did not err in this regard.
V. Did the Court err in not finding that Calvin Johnson failed to meet his burden of proving the fire loss to the vehi cle was accidental, as required by the policy? Allstate asserts in its fifth

issue that the trial court erred in not requiring that plaintiff prove the fire loss was acciden

tal. It is undisputed that th

e vehicle was ins

ured by Alls

tate. However,

Allstate asserts that the loss was not covered under t

he policy be

cause the fire l

oss was not an “ac

cidental” loss, as required by the policy. Allstate further asserts that plaintiff had the burden to prove the loss was accidental,

that plaintiff fa

iled to prove such,

and that, theref

ore, the trial co

urt erred in deny

ing its motion for a directed verdict.
A claimant under an insurance policy must prove the existence and validity of the policy and the details of the claim. First Am. N at’l Bank v. F idelity & Deposit Co. , 5 F.3d 982, 984 (6 th Cir, 1993). Howe ver, there is a presumption that the burning of property is the result of an ac cide nta l cause. Ricketts v. State , 241 S.W.2d 604 (Tenn. 1951). Further, plaintiff testified that he did not set the fire and that he did not know who did. A directed verdict is not approp r iate when the accused testifies that he did not set fire to the property in question and that he has no idea who did. Jones v. Tennessee Farmers Mut. Insur. Co. , 896 S.W.2d 553 (Tenn. Ct. App. 1994). This is a question for the jury. Id. Further, Steven testified that he was driving the vehicle at the time it caught fire and that he did not know th e cause of the fi re. Mother also te

stified that she wa

s following in her

vehicle behind Son when vehicle caught fire and that she saw no signs of

arson. We believe this testimony meets plaintiff’s burden. An insurer s eeking to prove an arson defense h as the burden of p

roving all of the

requisite elements of the defense. Alexander v. Tennessee Farmer’s Mut. Inc. Co. , 905 S.W.2d 177 (Tenn. Ct. App. 1995). An insurance company must show by a preponderance of the evidence (1) that the loss was due to a

fire of incendiary origin, (2) that the insured had an opportunity to set the fire, and (3) that he had a motive to do so. McReynolds v. Cherokee Insur. Co. , 815 S.W. 2d 208, 211 (Tenn. Ct. App. 1991). All three elemen

ts must be establi shed by the party attempting to prove arson. Walters v. Tennessee Farmers Mutua l Insur. Co. , 873 S.W.2d 691, 694 (Tenn. Ct. App. 1993). Allstate is apparently

contending in this

issue that the tria

l court erred in n

ot granting it a directed verdict. We find no such error. “The constitutional right to a jury trial re quir es the submission of the case to the jury except where there is no doubt as to the conclusion to be drawn from-11-

the whole evidence.” Jones v. Tennessee Farmers Mut. Ins. Co. , 896 S.W.2d 553, 555 (T enn. Ct. App. 1994). Plaintif

f’s fifth issue is w

ithout merit.
VI. Did the Courtimproperly instruct the jury on Allstate’s burden of establishing the d e fense of misrepresentation of the loss, thereby committing reversible error?
In its sixth issue, Allstate asserts that the trial court improperly instructed the jury regarding Allstate’s burden of establishing the defense of misrepresentation of the loss. Allstate requested a modification of the Tennessee Pattern Jury Instruction 13.24 on the defense of misrepresentation of the loss. Allstate requested that the instruction be modified to add that an insured may void the policy by swearing with disr

egard for truth,

or swearing to the

truth of factswhich the insured does not know to be true. The trial court de

nied Allstate’s re

quest and instruct

ed the jury as foll

ows: [B]efore you may find that

the policy has been vo

ided under the fraud or false swearing provision of the policy, you mus

t find fro m a preponderance of

the evidence that the plaintiff made misrepresentations as to material matters and that he did so willfully and with the intent to deceive the insurer . If you find that the plaintiff intentionally

made false statements in its proof of loss as to t he valu e or if you find that he intentionally made false statements to the insurer concerning the cause and the origin of the fire, the whole policy is voided and the plaintiff cannot recover. The trial court’s instruction is consistent with the law in Tennessee. In Boston Manuf. Insur. Co. v. Scales , 101 Tenn. 629, 99 S.W. 742 (1899), the Tennessee S upreme Cou rt distinguished betweenfalse statements made in the application for insur ance from those made subsequent to the issuance of the policy. The court stated that material misrepresentations made in a proo f of loss statement do not void

an insurance policy, unless evidence establishes, on the plainest grounds, that the misrepresentations were willfully an d knowingly made wi

th the intent to

deceive or defraud the insurer. 99 S.W. at 746; see also Nix v. Sentr y Ins. , 666 S.W.2d 462, 464 (Tenn. Ct. App. 1983 )

. Therefore, we find this issue is without merit.

VII. Did the Court err in making a number of invalid evidentiary rulings, prejudic

ing Allstate to the p

oint of precluding

a fair trial? Allstate asserts that the trial court made erroneous evidentiary rulings which precluded it from receiving a fair tr

ial. T he trial court is afforded wide discretion in the admission or rejection of e vidence, and the trial court's action will be reversed on appeal only when there is a sho wing of a n abuse of discretion. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439 (Te nn. 1992); Davis v. Hall , 920 S.W.2d 213, 217 (Tenn. App. 1995). Allstate a ls o asserts that the trial court erroneously allowed as plaintiff’s rebuttal proof the testimony of Glen Doyle Myers who was not previously identified on plaintiff’s witness list. Plaintiff points out that the Tenne ssee twelfth judic

ial distr ict, loc al rule 11.01, excludes rebuttal and-12-

impeachment

witnesses from the obligation to exchangewitness lists prior to trial. Allstate asserts that local rule 11.01 contradicts Tenn. R. Civ. P. 26.02, which permits parties to discover the identity of all persons having relevant knowledge of any discovera

ble matter, including the facts relevant to any claim or defense involved in the litigation. It is well settle

d t hat the trial courts of this state have the authority to make and implement reasonable

local rules of pr

actice and proc

edure in their respective courts, as long as these local rules do not conflict with a substantive rule of state law. Richie v. Liberty Cas h Groc ers, Inc. 63 Tenn. App. 311, 471 S.W.2d 559, 560 (Tenn. Ct. App. 1971); Brown v. Daly , 884 S.W.2d 121, 123 (Tenn. Ct. App.1994); Pettus v. Hurst , 882 S.W.2d 783, 786 (Tenn. Ct. App.1993).
We can not find that lo

cal rule 11.01 co

ntradicts Tenn. R.

Civ. P. 26.02. Rule 11.02 deals with the exchange of witness lists prior to trial; it has nothing to do with the scope of p retrial discovery permitted by Tenn. R. Civ. 26. We have no record of what transpired when Allstate’s counsel objected to Myers’s testimony. I n the absence of such a record, w e cannot say that t

he trial court er

red in allowing the testimo

ny. We find this issu

e without merit. Allstate also asserts that the trial court erred in allowing the introduction into evidence of a publication titled “Mitsubishi Eclipse, Plymouth Blazer, and Eagle Talon, 1990 to 1994, All Models” which Steven Johnson testified on rebut tal that he purchased from the Autozone in Manchester, Tennessee the night before h is testimony. The pa

ge of the publicat

ion showing the loca

tion of the fuse box was allowed

into evidence over the objection of Allstate. Allstate

argues that the pu

blication is hearsay and shou

ld have been exc

luded by the court

. Rule 801, Tenn.R.E

vid. states:
Rule801. Definitions. - The following definitions ap ply under this article: (a) Statement. - A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the pers on as an assertion. (b) Declarant.

- A “declarant

” is a person who ma

kes a statement. (c) Hearsay. - “He

arsay” is a state

ment, oth er th an one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The publication is

a written assertion

offered to prove

the location of the

fuse box; thus, to prove the truth of the matter asserted. Therefore, unless within an exception of the hearsay rule, the publication should have been excluded, and we find no such exception. Plaintiff asserts that the trial court can take judici al notice of the publication, as provided for in Tenn.R.Evid. 201. We disagree with this assertion. Although the trial court erred in admitting the publication, from our

review of the entire record, it appears that the admission of this document is harmless error.-13-

Allstate next asser ts that the trial court erred in refusing to allow certain witness testimony. Allstate’s brief

states: The Court also failed to allow key defense witnesses to testify before the jury of twelve (12) regarding the reputation and character of Calvin Johnson and Steven Johnson. F u rther, the Court r efused to allow the sam e defense witnesses to testify regarding the Johnson’s history for arson in the c ommunity and gener

al reputa t ion and propensity

for untruthfulness. S uc h inquiries were made via an offer of proof outside of the presence of the jury, and the jury was not permitted to weigh this

compelling evidence in rea ching their verdi

ct. As a basis for admissibility of eviden ce as t o the character, reputation, history of truthful ness in the community, and propensity for arson, Allstate would show this H onorable Court tha t this was a case involving allegations of insurance fraud. As such, a parties’ credibility, propensity

for truthfuln

ess or lack thereof, moral turpitude, and reputation and history of simila r acts is relevant pursua

nt to Tennessee Rule of Evidence 401. As was previously addressed, such information is also relevant pursuant to Rule 404(b) of the Tennessee Rules of Evidence. A party’s character, propensity for truthfulness or untruthfulness,

and reputation in the community can be proven and are also relevant pursuant to Rules 405 of th e Tennessee Rules of Evidence, 608, and 803 (21). Rule 4 05 of the Tennesse e Rules of Evidenc

e permits introduction of evidence of character or a

trait of character of a person, and states that "proof may be made by testimony as to reputation or by testimony in the form of an opinion." Tenn. R. Evid. 405. Further, Rule 608 of the Tennessee Rules of Evi de nce allows introduction of specific instances of conduct, such as prior criminalacts or arson acts,

and such evidence is clearly probative of the truthfulness or untruthfulness of the parties in this litigation. Rule 608 states in fact that “[t]he credibility of a witness may be attacked or suppo rted by evidence in the form of

opinion or reputation. . .” Tenn. R. Evid. 608. “The particular trait of truthfulness, however, is always an issue when a witness testifies.” State v. West , 844 S.W.2d 144, 149 (Tenn. 1992).
It is difficult from th

e record to

determine precisely the offer of proof made because, for the most part, the offer

of proof was made

in a summary fashio

n; more or less a c

ollo quy betwe en the court and Allstate’s counsel. We quote from the record.-14- THE COURT: And all that testimony, I wi ll allow to come in on the bad faith claim, if and when we get there. MS. COOPER: In addition, Your Honor, for offers of proof purposes, I have subpoenaed a witness by the name of Jerry Prater, who is a volunteer fire department personnel member, who is aware of the Johnson fires history and

Ms. Carolyn Baker. I misstated her name on the subpoena. Ms. Rollins is the individual that I a sked for a sidebar on, and for the pur

poses of clarify

ing the record, Ms

. Rollins is going to testify not only about the prior fires but about some of the credibility and impeachment components I wanted to use against the plaintiff. There have been some allegations of threats and add it ional information I wanted to

get out of her, but I was afraid to do so before the jury for the simple reason that those allegations overlap the fact that that fire was occurring.
THE COURT: It might be useful for me, and since the jury’s gon e, w hy don’t you just put that witness on and give me the opportunity

to hear that firsthand and then I can make a more sensi

ble ruling? MS. CO OPER: Would Your Hon or like to hear, in

summa ry , Jerry Prater’s testimony?
THE CO URT : If you will, we migh t release him. Le

t’s go to him and discuss that

. MS. COOPER: Mr. Prater was going to testify that he actually responded to four of

the other Calvin

Johnson fires, one that occurred 15 to 20 years ago, a house trailer fire in October of 1992, a fram e house fire, and t

hat he is aw are due to the fact that he is a volunteer fireman of

reputation of multiple additional fires in the Grundy County area. He actually resp

onded to and is aware of this car fire. Hi

s colleagues,

more or less from various rural fire depart ments, and he have discussed the Calv

in Johnson reputation in the community, which I do believe is at issue in this trial, and they have quite a reputation for multiple, numerous fires a nd have actually

been referred to among local fire departments as arson bugs, Your Honor.
THE COURT: I don’t know that I’m going to let you put the repu tati on of “arson bugs” i n on the bad faith c

laim, but I’m going to rule that that witne

ss would come in, if a

t all, on the bad faith portion bifurcated.-15- MS. COOPER: What about the young lady? MR. CLEMENTS: Cottrel l.
THE COURT: I cut you off on the question you asked. Yo u said you wanted to make a – MS. COOPER: Please, Your Honor. Thank you for reminding me about one. The samething ac tually. No, I take that back. It was

Ms. Cottrell.
For purposes of offe

r of proof, it’s De

fendant’s positi on that once Ms. Cottrell had exclaimed Tom Steel was extremely upset after discussing the situation with Steven and C alvin Johnson, that Tom Steel relayed the fac

t that the Johnsons w

ere asking him to

lie for him. Again, he told them he wasn’t going to do it. The quote is, “I won’t lie for that dumb son of a bitch.” It is my opinion that the response to the objection that was going to be stated on the rec o rd, that was an exception of the hearsay r ule of Tom Steel due to his then existing emotional state, of

the 803-3 under the Tennessee Rules of Evidence, Excited Utterance, 803-3. It’s a statement of rule of interest under 840- 3 because were he

to acquiesce, he’d be submitting himself to perjurous testimony, and then subseque nt to that conversa

tio n, that response, T om Steel drove Shannon Cottrell and Shane Tate by Steven Joh nson ’s tra i ler, pointed out the remains of the burned car, and said, quote, “That’s the damn car they wanted me to lie about, I’m not going to do it.” THE COURT: And I’m s ustaining the objec

tion. All Right.
An offer of proof

was made of the testimony of Carolyn Baker Rollins. She testified that she lived at 441 HickersonRoad, Manchester , Tennessee, an

d that her proper

ty is located near the

property ownedby Calvin Johnson. Her parents own the ho

me across the roa

d from the Johnson p

roperty on Hickerson Road. Both the Johnsons and her parents lived at the same location about fifteen years ago. She was questioned concerning an incident that occurred about that time when the Johnsons had a h ome that burned down. She testified that she was living with her parents at the time, and it was getting late and she saw a lamp on in the window of the Johnson home. She said that later she smelled something burning and rema rked toher father that something was burning. She then noticed that the Johnson house was on fire, so shecalled 911. She stated that she had seen the Johnsons leave earlier that afternoon and that they were not home at the time. She testified that she spoke to Linda Johnson some time after that, and she could not recall anything beca use it was suc h a long time ago. She remembers something about who called the fire department, and she told Linda Johnson that she called-16-

the fire d epartment. She testified that her feeling was that it was not appreciated that she called the fire department. She further testified that she had heard about some other fires on the Johnson property, such as a trailer burning after the house was burned. She testified that she had just heard that and knows about it because she lived in Murfreesboro at the t ime. The cou rt questioned her concerning the conversation she had with Linda Johnson. Sheresponded to the court that she didn’t have any i dea about what was said, that it was fifteen or sixteen years ago, and she just did no t remember. The offers of proof fall short of attacking the reputation of the plaintiff for truth and veracity. The verbatim testimony of Ms. Rollins concerning an episode of 15 or 16 years before the trial aptly demonstrates the quirks of memory. From our review of the record as a whole, we cannot say that the trial court abused its discretion in excluding the proffered evidence. Allstate also asserts that the trial court erred in not allowing Allstate to put on witnes ses t o testify as to the integrity andcharacter of its witness, Tom Steel. Allstate contends that because Cal vin and Steven Johnson contradicted Steele’s testimony, it was an attack on his c haracter. In N eil P. Cohen, Tennessee Law of Evidence § 608.11 (3d ed. 1995), it is stated:

Attack on character - A witnes s can be rehabilitated only after the witness’s character

for truthfulness has been attacked. Rule 608 does notindicate what constitutes an attack on credibility. Obviously an attack on chara

cter occurs if

an opinion or

reputation witness testifies that the witness has a c haracter for untruthfulness. Other methods of at tack, triggering the rig ht to rehabilitate

the witness, inclu

d e introduction of a prior crimina l conviction, Rule 609, prior spe cific acts, Rule 608(b), and proof that thewitn ess has been corrupted. Conversely, it is wid

ely held that a witness’s character is not attacked simply by proving that the witness is biased. H owev er, if the ground of bias is a form of c orruption, such as taking a bribe, rehabilitative character evidence may be admissible. Several methods of impeachment may or may not constitute an attack on a witness’s character for truthfulness, dependi n g on the circumstances.

The critical que

stion is whether the proof

is suggesting that the witness has an u ntr uthful character. Contradiction was cited by the Advisory Committee to the Federal Rules of Evidence as an impeachment

mode that does not necessarily engender an attack on truthful character. Contradiction proo f can simply be use

d to establish that the witness, though a truthful person, is forgetfu l. Simi larly, a prior inconsistent statement or a vigorous cross-examination does not always suggest the witness has an untruthful character, but the facts of each case mus t be examined carefully. (Emphasis added).

* * *-17-

From our review of the record, w e do not find that the

trial court abuse

d its discretion in not allowing the proffered testimony.

VIII. Di d the Court err in proffering an incorrect jury verdict for m , thereby confusing the jury and co mmitting prejudicial, reversible error? Allstate asserts that the trial court erred in giving an incorrect instruction to the jury on the jury verdict form itself. The instruction erroneously stated that if the jury answered Question No. 2 “no,” then they should

go directly to Question No. 4. The court noticed this error after the jury came back leaving Question No. 3 unanswered . When t he court noticed the error, he reinstructed the jury that they needed to respond to Question No. 3 regardless of what answer they had given to Question No. 2. The jury left and after further deliberation answered Question No. 3. The trial court prope

rly instructed the jury and sent the jury back to complete the jury verdict form. We find no prejudice to Allstate in this inadvertent error which was promptly corrected by the court upon discove

ry. This issue is with

out merit. The judgment of the trial court on the jury verdict is affirmed, and the case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed ag

ainst the appellant, Allstate Insurance Company.

__________________________________________ W. FRAN K CRAWFORD, PRESIDIN G JU DGE, W.S

.