Gonzalez v. Wells, A94A0593

• Decision Date: 08 June 1994
• Docket Number: No. A94A0593,A94A0593
• Citation: 213 Ga.App. 494,445 S.E.2d 332
• Parties: GONZALEZ v. WELLS.
• Court: Georgia Court of Appeals

Page 332

445 S.E.2d 332

213 Ga.App. 494

GONZALEZ v. WELLS.

No. A94A0593.

Court of Appeals of Georgia.

June 8, 1994.

Crim & Bassler, Nickolai Makarenko, Jr., Atlanta, for appellant.

Jonap & Associates, Arthur C. Nilsen, Atlanta, for appellee.

JOHNSON, Judge.

This appeal raises the issue of the extent to which a plaintiff may inject the subject of insurance into his or her voir dire of the jury. Judgment was entered on a jury verdict in favor of Terrence Wells and against Miguel Gonzalez for $1,460 compensatory and $25,000 punitive damages in this personal injury action arising from an automobile accident. During a pre-trial conference, citing the prejudicial effect of mentioning "insurance" to the jury, Gonzalez moved in limine to prevent the qualifying of the jury as to his or any other insurance carrier. After hearing argument from counsel representing both parties on the motion, the trial court ruled that, other than the court qualifying the panel as to the insurance company and, if necessary, asking a follow-up question or two if any jurors stated on their forms that they worked for Gonzalez' insurance carrier, there would be no inquiries into insurance. During voir dire, the judge asked: "Are any of you either stockholders, officers, directors, agents or employees of the Safeway Insurance Company?" Apparently no one responded, since the subsequent questions were on a different topic. Some time later, Wells' counsel asked: "Do any of you own or operate a vehicle?" All jurors raised their hands. Wells' counsel then asked: "Is that vehicle insured?" All jurors again raised their hands. Wells' counsel further inquired: "And we already asked as a group, no one is insured by Safeway; is that correct?" At that point, Gonzalez' counsel objected and moved for a mistrial. In response, the court stated to Wells' counsel (at a bench conference): "You are not allowed to ask any questions about insurance unless one of the persons indicates here they work for an insurance company." The court then remarked to the jury: "Ladies and gentlemen, you are to disregard that last question and put it completely out of your mind."

1. Gonzalez contends that the trial court erred in qualifying the jury to his insurance carrier. We disagree. Generally, liability or no-fault insurance coverage of a litigant is not admissible in evidence, and unnecessary disclosure of such fact is ground for mistrial or reversal. Goins v. Glisson, 163 Ga.App. 290, 292(1), 292 S.E.2d 917 (1982). On the other hand, it is well-settled that it is proper for the trial court to qualify prospective jurors with regard to relationships they may have with any insurance carrier having a financial interest in the outcome of the case. Franklin v. Tackett, 209 Ga.App. 448, 450(2), 433 S.E.2d 710 (1993); Crosby v. Spencer, 207 Ga.App. 487, 490(6), 428 S.E.2d 607 (1993). We find that the question asked by the court was proper given the holdings of this court.

2. Gonzalez also argues that the trial court erred in not granting his motion for mistrial when Wells' counsel violated the court's order regarding additional questions on the subject of insurance. We agree. The trial court clearly stated that no other insurance inquiries would be permitted. Notwithstanding that ruling, Wells' counsel proceeded to ask the jurors if they had automobile insurance and also whether they were insured by Safeway (Gonzalez' insurance carrier). In continuing to make inquiries on the subject of insurance, Wells' counsel clearly violated the court's order on Gonzalez' motion in limine. This is significant not only because counsel violated a court order, but also because by asking more questions, including questions specifically regarding automobile insurance, counsel increased the danger of prejudicially impressing upon the jurors the fact that the defendant had liability insurance. See Corley v. Harris, 171 Ga.App. 688(1), 320 S.E.2d 833 (1984). Compare Parsons v. Harrison, 133 Ga.App. 280, 211 S.E.2d 128 (1974) (no prejudicial error where counsel asked two questions directly related to the questions propounded by the court and where the trial court had made no prior ruling prohibiting insurance questions). "We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant.... The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations." (Emphasis deleted; citations and punctuation omitted.) McKin v. Gilbert, 208 Ga.App. 788, 790(1), 432 S.E.2d 233 (1993). "We cannot say that [counsel's] deliberate violation of the trial court's order did not influence the jury's verdict." (Citations omitted.) Scott v. Chapman, 203 Ga.App. 58, 59(1), 416 S.E.2d 111 (1992). Furthermore, "[the court] had previously qualified the jury panel...