Endsley v. Geotechnical & Envtl. Consultants, Inc.

• Decision Date: 28 October 2016
• Docket Number: A16A1003
• Citation: 794 S.E.2d 174,339 Ga.App. 663
• Court: Georgia Court of Appeals
• Parties: Endsley v. Geotechnical & Environmental Consultants, Inc. et al.

339 Ga.App. 663

794 S.E.2d 174

Endsley

v.Geotechnical & Environmental Consultants, Inc. et al.

A16A1003

Court of Appeals of Georgia.

October 28, 2016

Reconsideration Denied November 28, 2016

Charles Madden Cork III, Lester Zack Dozier Jr., for Appellant.

William S. Cowsert, Athens, Holly Jane Portier, Atlanta, for Appellee.

Dillard, Judge.

Mildred Endsley appeals from the trial court's denial of her motion for new trial following its entry of judgment on a jury's verdict in favor of Geotechnical & Environmental Consultants, Inc. ("GEC") and Patricia Mason (collectively, "appellees") in Endsley's personal-injury suit, in which United Health Group ("UHG") intervened to seek reimbursement for workers' compensation benefits that UHG paid to Endsley. On appeal, Endsley contends that the trial court erred in (1) denying her request to bifurcate the trial; and (2) after a stipulation was reached between Endsley and UHG as to a monetary amount, instructing the jury that UHG had paid benefits to Endsley and had done so as a result of a wreck, as well as instructing the jury that UHG's workers' compensation lien was "evidence about the presence or absence of insurance or benefits." Endsley contends that, because of the foregoing errors, the trial court should not have entered judgment on the jury's verdict or should have granted her motion for new trial. For the reasons set forth infra , we affirm.

The undisputed underlying facts show that in 2008, Endsley was involved in a motor-vehicle accident with Mason while both were acting within the scope of their respective jobs. Mason collided with the rear of Endsley's vehicle, and both Mason and her employer, Geotechnical & Environmental Consultants, Inc., admitted to their negligence and/or vicarious liability. However, what wasdisputed at trial was the proximate cause of Endsley's alleged injuries, which Mason and GEC argued were the result of a pre-existing condition at the time of the collision.

Following the accident, Endsley received workers' compensation benefits through UHG. Then, after Endsley filed suit against Mason and GEC in 2010, UHG filed a motion in 2014 to intervene in the action under OCGA § 34-9-11.1. And noting that there was "no objection by any of the parties," the trial court granted UHG's motion.

Prior to trial in 2015, all three parties engaged in an exchange of emails with the trial court, and those communications were later made part of the record on motion by Endsley. These emails reflect that UHG wished to participate in the trial and that, upon learning this, counsel for Endsley contacted all parties and the court to express disagreement with the suggestion that UHG should be permitted to participate in the trial, which would inject knowledge of the workers' compensation lien into the main proceedings. Instead, suggested Endsley, the court should wait until after the main trial to decide what to do with UHG's lien. However, in an emailed response to all parties, the trial court concluded that UHG would be allowed to participate at trial because, in its view, this was the "proper role for an intervenor at trial." Endsley's counsel again expressed his disagreement with this decision in an email sent to all parties and the trial court. But thereafter, the trial court issued an order as to the role of UHG as an intervenor, concluding that UHG would "participate during the jury trial as a party" and be permitted to "make an opening statement, examine witnesses, offer evidence, and make closing arguments related to its interest of protecting and enforcing its subrogation lien."

Prior to beginning jury selection, the trial court told the venire that UHG would be participating as an intervenor and had paid workers' compensation benefits to Endsley. Thus, the trial court explained, UHG had a lien against any recovery and could present evidence to protect and enforce its lien. The court further instructed, however, that the jury's focus would not be on UHG's claim and that it would not be concerned with making a decision as to the lien.

Following these comments by the trial court, Endsley objected to UHG's participation on the record, arguing that the jury should not have been informed of UHG's payment of benefits and that the court should decide the issue of the lien after the jury's return of a verdict. But the trial court again ruled that, as an intervenor, UHG had the right to "participate and influence" the jury to protect and enforce its lien, but that the jury would consider the evidence only to determine liability and the amount of damages.

Thereafter, Endsley further objected to any reference as to the amount of workers' compensation payments received or the amount of the claimed lien because any such reference at trial would "further inject" knowledge of a collateral source. But Endsley then indicated to the court that she did not contest the amount of the lien and was willing to stipulate to same. And during a break that ensued in the proceedings, UHG and Endsley reached an agreement that they would stipulate to the amount of the lien. When the proceedings resumed, Endsley acknowledged that she and UHG had "agreed that it's stipulated and there's no reason to present any of that to the jury."

The stipulation having been accepted, the trial court inquired, "[w]ith that stipulation, I don't think there's any need for [UHG] to present anything to the jury; is there?" UHG's counsel responded that she was "just going to explain why I was here, and not any amounts, and ask that [the jury] fully compensate Ms. Endsley's injuries." Endsley offered that UHG "certainly has a right to say that." Counsel for Mason and GEC then asked what he would have a right to say to the jury and asked if he could "explain to the jury what's going on or not?" The following colloquy then took place between the trial court and counsel for the parties:

THE COURT: I mean, where I am in my thought process is, I don't know that there is any need for the Intervenor to do anything at trial if there is a stipulation that's been made between the Intervenor and the Plaintiff.

[UHG]: Your Honor, my thoughts were that the jury should know that someone has asserted a lien on her—on the damages that she may be entitled to.

THE COURT: I can tell [the jury] that, you know, the Defendant—a stipulation has been made that's going to take care of that aspect of the case, so you're not going to hear from the Intervenor. And it's consistent with what I've already told them, which is their focus is to be on the Plaintiff—between the Plaintiff and the Defendant.

[ENDSLEY]: That, I think, is correct, Your Honor.

[UHG]: I would like for the jury to know that Ms. Endsley should be fully compensated for her damages and that any damages they award should fully compensate her.

But counsel for Mason/GEC still wanted to know exactly what the defendants could argue at trial about the intervention. The trial court explained that it was "having pause about any kind of statement made from the Intervenor...." Endsley's counsel then explained that he thought "we are right where we would have been if [UHG] had not intervened at all. We try this case on the issues. Was this woman hurt? Was it the Defendant's fault? What are the damages?" Nevertheless, Mason/GEC's counsel persisted in asking the trial court whether the jury was entitled to know that Endsley "brought a workers' compensation claim seeking medical expenses and lost wages and that they reached a settlement with [UHG], and that now they have reached an agreement between themselves and [UHG] as to the enforceability of that lien." In response, the trial court concluded that,

[i]f we're at the position that the Intervenor is not going to introduce any evidence, then I'm not going to allow the Intervenor to argue the case, because I do think the issue that is out there, that it has been resolved as far as what the jury needs to know about it.

And that's what I'm going to do, is tell them that that's been resolved and it will be dealt with separately and that their issue is to decide between the Plaintiff and the Defendant whether there is liability and how much it is.

And so they will not—I'm not going to tell them how much the lien is.

Still unclear as to how the case would proceed, Mason/GEC's counsel asked the trial court if the jury would be told that "there was a settlement, there was a worker's comp[ensation] claim" because the jury "implicitly know[s] that...." In response, the court further explained that it would instruct the jury

that the issue that existed between—with the Intervenor has been resolved separately from what they're doing, and so what they're going to be focused on is the claim that exists between the Plaintiff and the Defendant, which actually I've already told them once that. And I was going to tell them that in the charge, too, is that that's what they're to be focused on.

And when counsel for Mason/GEC asked the trial court what he would be allowed to say in his opening statement as to UHG's role, the court responded that Mason/GEC should "view it as though the Intervenor didn't intervene" and that they were "back to a case that's between the Plaintiff and the Defendant."

Thereafter, during preliminary instructions, the trial court charged the jury as follows:

As you know from my earlier comments, the case that we're dealing with today is a motor vehicle collision case. And Ms. Endsley is contending that she was injured in this motor vehicle collision. The Defendants, Geotechnical and Environmental Consultants, Incorporated, and Ms. Mason, admit that Ms. Mason was at fault in causing the impact, and they admit that Ms. Mason was working in the scope of her employment at the time of this collision, but they deny there were injuries resulting from the collision.

Earlier you heard me talk a little bit about United Health Group as an Intervenor in the case. I want to tell you that the issues relating to the Intervenor have been stipulated to between the

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