Ballard v. Warren
| Decision Date | 08 February 1995 |
| Docket Number | A94A2149,Nos. A94A2148,s. A94A2148 |
| Parties | BALLARD v. WARREN. WARREN v. BALLARD et al. |
| Court | Georgia Court of Appeals |
Baker, Kinsman & Hollis, P.C., N. Mark Kinsman, Chattanooga, TN, for Ballard.
Weiner, Yancey & Dempsey, Beryl H. Weiner, Atlanta, Weill & Weill, Harry Weill, Chattanooga, TN, for Warren.
This appeal and cross-appeal are from a plaintiff's verdict in this suit arising out of a three-vehicle collision caused when defendant Graydon Lee Ballard III pulled from the road shoulder onto Interstate-24 into the paths of plaintiff Susan Jennifer Steele Warren's vehicle and a tractor-trailer rig owned by defendant Foster Trucking Company. Plaintiff Warren was awarded $78,500 against Ballard and nothing against Foster Trucking Company and its driver, Justin Walls.
Ballard contends the trial court erred in refusing to admit evidence of plaintiff's insurance coverage after plaintiff and her husband "falsely" testified that they themselves had to pay medical bills. Ballard further contends the verdict was so excessive as to be inconsistent with the preponderance of the evidence. Plaintiff Warren filed a cross-appeal. Held:
1. Plaintiff Susan Warren responded to a question about physical therapy costs: As to what medical tests she had, Warren responded: The plaintiff then read to the jury a list of medical bills totaling $6,287.22. Plaintiff's husband testified that the only interest he had
Ballard's counsel made no objection to the plaintiff's statement, but, to the response of plaintiff's husband, Ballard's counsel objected that the witness was misleading the jury to believe plaintiff and her husband had to buy a new car and pay all the medical bills with their own money, which is false. Ballard's counsel asked to be allowed to inquire whether plaintiff received insurance money for the loss of the car and medical bills. The trial court refused.
Ballard contends the statements by plaintiff and her husband are false because their car damages and medical bills were paid by insurance. Plaintiff's counsel rejoins that Ballard is in a poor position to complain of misleading conduct inasmuch as Ballard denied any responsibility for the collision throughout the litigation until his opening statement, when he admitted liability. See Ga.-Carolina Brick, etc., Co. v. Brown, 153 Ga.App. 747, 754, 266 S.E.2d 531; the parties may have placed themselves on equal footing in this regard.
Be that as it may, the trial court erred in refusing to permit Ballard to introduce evidence of plaintiff's insurance benefits. In Denton v. Con-Way Southern Express, 261 Ga. 41, 402 S.E.2d 269, the Supreme Court declared unconstitutional a law allowing evidence of "collateral sources" in consideration of damages. Such evidence is "inherently prejudicial." Id. at 43, 402 S.E.2d 269. "The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1(b)." Willard v. Wilburn, 203 Ga.App. 393, 394, 416 S.E.2d 798. " 'Certainly, the pre-Denton, and proper, rule is that when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented (plaintiff) from seeking treatment, defendant is allowed to cross-examine her on this point in the narrow, limited manner which the trial court allowed in this case.' " Moore v. Mellars, 208 Ga.App. 69, 72, 430 S.E.2d 179; see also Patterson v. Lauderback, 211 Ga.App. 891, 892, 440 S.E.2d 673 (cert. denied).
When, as in Moore and Patterson, a plaintiff falsely states that she was deprived of medical care, a defendant may be allowed "to impeach a plaintiff's contentions regarding financial inability to seek medical treatment" (Moore, supra at 71, 430 S.E.2d 179) and defendant is allowed to cross-examine the plaintiff "on this point in [a] narrow, limited manner." Moore, supra at 72, 430 S.E.2d 179; Patterson, supra.
Whenever a plaintiff "opens the door," admissibility of collateral source evidence is determined by the trial court's exercise of its discretion to balance the probative value of that evidence against its tendency to prejudice the jury unduly. See Pullen v. State, 208 Ga.App. 581, 585, 431 S.E.2d 696. In this case, as in Moore and...
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Warren v. Ballard
...namely, when may a tort defendant elicit testimony regarding insurance coverage for purposes of impeachment. Ballard v. Warren, 217 Ga.App. 23(1), 456 S.E.2d 589 (1995); Luke v. Suber, 217 Ga.App. 84(1), 456 S.E.2d 598 1. We begin with a discussion of the facts of each case, as well as the ......
- Plunkett v. Ginsburg, A94A2012
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Ballard v. Warren, s. A94A2148
...themselves and they had thus "opened the door" to be impeached by evidence that their bills were paid by insurance. Ballard v. Warren, 217 Ga.App. 23, 456 S.E.2d 589. On certiorari, the Supreme Court combined this case (Case No. S95G1171) with another which it considered of identical import......