Lewis v. Emory University

• Decision Date: 03 November 1998
• Docket Number: No. A98A1351.,A98A1351.
• Citation: 235 Ga. App. 811,509 S.E.2d 635
• Parties: LEWIS v. EMORY UNIVERSITY.
• Court: Georgia Court of Appeals

509 S.E.2d 635

235 Ga. App. 811

LEWIS v. EMORY UNIVERSITY.

No. A98A1351.

Court of Appeals of Georgia.

November 3, 1998.

Reconsideration Denied December 18, 1998.

Certiorari Denied April 30, 1999.

William Q. Bird & Associates, William Q. Bird, Karin L. Allen, Dwyer, White & Sapp, J. Matthew Dwyer, Jr., Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Frederick N. Sager, Jr., Anandhi S. Rajan, J.M. Hudgins IV, Johnathan T. Krawcheck, Atlanta, for appellee. BEASLEY, Judge.

Judith Lewis appeals a judgment entered on a jury verdict in favor of Emory University d/b/a Crawford Long Hospital arising out of her husband's death following a heart attack for which he received treatment at defendant hospital. Lewis enumerates four errors of the court: refusing to allow her to qualify prospective jurors with regard to their relationship with Emory's excess insurance carrier; failing to allow testimony of statements made by a witness who died before trial; prohibiting cross-examination of a defense expert with a document upon which the expert relied; and prejudicing the jury by repeatedly charging that they could not guess or speculate.

1. Prior to jury selection, the trial court asked the lawyers to identify any insurance carrier in the case. Emory's counsel explained that Emory was self-insured for the first $3,000,000 and that St. Paul Fire & Marine Insurance Company provided excess coverage thereafter. The court asked if St. Paul was a mutual company, to which defense counsel responded that it was a stock company. The court explained it understood judges are not required to qualify the jury with respect to insurers that are stock companies. Lewis' counsel objected and argued that regardless what type company it was, the court was required to qualify the prospective jurors as to whether they were stockholders, employees, officers, directors or had a financial interest in St. Paul. The court disagreed but allowed Lewis' counsel to ask comprehensive questions about each prospective juror's employment background.

During closing argument, Lewis asked the jury to award up to $4,800,000 damages, but it awarded none. Lewis moved for a new trial but the motion was denied.¹

The long-standing Supreme Court decision in Atlanta Coach Co. v. Cobb² mandates reversal. The Court considered the competing policies of the plaintiff's right to a panel of impartial jurors from which to select a jury and the rule prohibiting mention of indemnity contracts during trial proceedings.³ It reasoned that a non-party insurer's "own interest in the result of the litigation would appear to be equal to, if not even greater than, that of the defendant; and when it once appears that an indemnity contract does exist in a particular case, the matter of purging the jury as to relationship to such company is not less important than if the company were an actual party."⁴

The court held that officers, employees, and stockholders and relatives of stockholders of a non-party insurance company which may be liable for a judgment rendered in the case are disqualified as a matter of law from serving as jurors and that refusing to allow plaintiff's counsel to so qualify the jury creates a presumption of injury.⁵ This presumption cannot be overcome after the verdict by affidavits asserting that no juror was disqualified.⁶ These rules have been followed recently in Dalton v. Vo⁷ and Arp v. Payne.⁸

The trial court misunderstood the difference between how mutual and stock companies are handled. The jury must be qualified for both types of insurers with regard to officers, employees, and stockholders and their relatives.⁹ The jury need not be qualified as to policyholders in stock companies because such policyholders do not have any interest in the assets of the company; mutual company policyholders are shareholders or otherwise have an interest in the assets of the insurer and therefore none can serve on the jury.¹⁰

Emory insists a jury need not be qualified as to an excess carrier. Certainly here, where Lewis sought damages exceeding the primary coverage, there is no ground for excluding the excess carrier from application of the Atlanta Coach rule. Both insurers were non-party insurance companies potentially liable for a judgment. The answer to whether the same rule would apply if the plaintiff sought damages in an amount less than the primary coverage must await another day. The trial court's failure to qualify the jury as to St. Paul was error.

As explained by Atlanta Coach, the error is "presumptively harmful."¹¹ Although the Supreme Court indicated the presumption possibly could be rebutted, it did not set out a guide to determine the method or criteria to be satisfied. The manner in which the court in this case attempted to rebut the presumption of harm is analogous to the unsuccessful attempt made in Atlanta Coach.

Immediately after the verdict was announced the following dialogue occurred: "THE COURT: All Right. Again, I want to thank you. Take that around to—let them see it before the jury leaves. Now, you're free to talk to the lawyers about this if you choose. And as a matter of information, not that [it] had anything to do with the case and the case is over now, I want to ask you a question that we debated early on. Are any of you employed by, as an employee, a stockholder or an officer, with the St. Paul Insurance Company? Any or you? THE JURY: No. THE COURT: Anybody in your immediate family work for that company? (No Response). THE COURT: All right. Let the record show none of them. All right, you're free to go. And, again, I thank you very sincerely."

First, the court failed to ask whether the jurors were related to anyone who was a stockholder of St. Paul, which is required under Atlanta Coach.¹² As stated recently in Dalton v. Vo,¹³ "controlling case law does not limit this right to inquire to policyholders of mutual companies but extends it to officers, employees, stockholders or anyone related to stockholders of the insurance company." Second, like the affidavits in Atlanta Coach, the court's offhand inquiry, made at a time not only after the verdict but also ambiguous as to whether the jury had been excused, failed to substitute for a voir dire. True, it was in open court and before the jury dispersed, but that post-purge was an insufficient remedy for the omission of the right "to pursue the lawful procedure in the selection of a jury."¹⁴Atlanta Coach held that affidavits asserting there are no grounds for disqualification among the jury panel which are offered after trial are insufficient to rebut the presumption of error. "After verdict, the jurors could not impeach their finding by showing their own disqualification, not even in reply to others who may have testified in vindication of the verdict, nor, indeed, by explaining any error or mistake which might have been made in their original affidavits, and which might have been discovered on further examination."¹⁵ "[T]he plaintiff had the right to a panel of ... impartial jurors from which to select the trial jury."¹⁶ "[I]t is apparent ... that after verdict the plaintiff did not have the same opportunity of discovering and proving possible disqualifications which she was entitled to exercise upon the trial, the same having been seriously curtailed by the rendition of the verdict and the consequent application of the rule that jurors can not impeach their finding."¹⁷ "The question as to the competency and impartiality of the jurors is thus to be determined before the parties begin to strike a jury."¹⁸ Third, the post-verdict inquiry procedure is counterproductive to the efficient administration of justice by creating an unnecessary risk. As stated in Atlanta Coach Co.:¹⁹ "The validity of a trial should not be hazarded by a possible relationship upon the theory that the plaintiff could be protected by the grant of a new trial should it appear after verdict that a juror was so disqualified."

The dialogue between the court and the jury after the verdict in this case suffers from the same infirmity as the affidavits in Atlanta Coach. Most importantly, the answers given by the jury were after the verdict and therefore subject to the rule that jurors cannot impeach their own findings. Emory argues the jurors were still in court under oath when they answered the court's questions. However, we see no operative difference between a juror's answering the court's questions after the verdict and submitting a sworn affidavit sometime thereafter. Neither overcomes the presumption of harm. For one thing, neither effort subjects the jurors to examination by counsel.

Emory counters that the jurors were not incompetent to testify after the verdict because their testimony supported the verdict.²⁰ Atlanta Coach addressed this argument as well. "If the plaintiff was entitled to have the examination as to relationship conducted in open court and before verdict while the jurors were competent to testify against as well as for their qualification, the error in denying this right was not cured by the submission of affidavits procured by the defendant out of court and after verdict, when the jurors could legally testify only one way on the question, and by offering to permit the plaintiff to make a counter-showing. This was to fall materially short of restoring what had been taken away by an erroneous ruling, and the plaintiff was not bound to accept the substitute.... A mere fragment of the right does not satisfy the whole."²¹ In other words, the law itself provides the negative factual answer, without an opportunity to discover whether it is true factually or not. In addition, the Supreme Court specifically overruled case law requiring a party who complained that the court failed to purge the jury of relatives of the other party, to either allege or prove that a relative was on the jury.²²

The problem of timing in this case meets the problem of identifying....