Kelley v. Harris

• Decision Date: 20 May 1988
• Docket Number: No. 76141,76141
• Citation: 369 S.E.2d 534,187 Ga.App. 215
• Parties: KELLEY v. HARRIS.
• Court: Georgia Court of Appeals

Page 534

369 S.E.2d 534

187 Ga.App. 215

KELLEY v. HARRIS.

No. 76141.

Court of Appeals of Georgia.

May 20, 1988.

H. Arnold Hammack, Albany, for appellant.

G. Wayne Hillis, Jr., Atlanta, for appellee.

BEASLEY, Judge.

Plaintiff Kelley and defendant Harris were involved in an automobile collision in 1985. Plaintiff's complaint for special and general damages was filed in January 1987.

OCGA § 51-12-1(b), allowing proof of collateral benefits, became effective July 1, 1987. Plaintiff filed a motion in limine seeking to have collateral benefits ruled inadmissible, contending that the statute should be applied prospectively only. The trial court erroneously denied the motion, according to the subsequent decision in Polito v. Holland, 258 Ga. 54, 58(5), 365 S.E.2d 273 (1988), but this does not resolve the present case.

After the court denied the motion, plaintiff stipulated in the pre-trial order: "Plaintiff hereby abandons his claim for medical expenses and agrees that he will not offer any evidence, whether in the form of medical bills or direct testimony, argue to the jury that Plaintiff has incurred medical expenses, or otherwise infer that Plaintiff has incurred any medical expenses. Defendant ... agrees that she will not offer any evidence, ... nor argue ... that Plaintiff's medical bills have been paid by collateral sources." Pursuant to that stipulation, no evidence of medical expenses was offered by plaintiff, nor was any collateral source evidence offered by defendant. The jury returned a verdict for $2,500, which was reduced because of plaintiff's PIP recovery to a zero judgment, except for costs.

Defendant contends that the parties' stipulation that no medical damages would be introduced by plaintiff and no collateral source payments by defendant makes any error harmless. She further argues that plaintiff's failure to make any offer of proof of his medical damages, which would then have been reduced by any proof of collateral payments, leaves this court with nothing to review. We agree to the extent that plaintiff's acquiescence in the ruling as to defendant's evidence and failure to offer his evidence of medical expenses mooted the point.

If plaintiff had introduced medical evidence and defendant had then introduced collateral source evidence, plaintiff would not have been required to further object to that evidence in order to preserve the question for our review, having made the motion in limine. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285(1), 260 S.E.2d 20 (1979); see especially footnote 2.

Here, however, when the court ruled the collateral source evidence admissible, plaintiff made a strategic choice not to introduce his own medical evidence. This decision made the error of the...