Moore v. Price, 61510

• Decision Date: 05 May 1981
• Docket Number: No. 61510,61510
• Citation: 158 Ga.App. 566,281 S.E.2d 269
• Parties: MOORE v. PRICE.
• Court: Georgia Court of Appeals

Page 269

281 S.E.2d 269

158 Ga.App. 566

MOORE v. PRICE.

No. 61510.

Court of Appeals of Georgia.

May 5, 1981.

Rehearing Denied May 19, 1981.

Certiorari Denied June 17, 1981.

William A. Erwin, Peter Z. Geer, Albany, Jack F. Varner, Leesburg, for appellant.

H. P. Burt, Albany, for appellee.

CARLEY, Judge.

Appellant Moore, plaintiff below, brought suit to recover for injuries received in a collision between his vehicle and that being operated by the son of appellee-defendant Price. The case was submitted to the jury and the following verdict was returned: "We the Jury, find negligence on both parties and feel the plaintiff should be awarded the amount of zero dollars." Judgment was entered for Price on this verdict and Moore appeals.

1. Moore sought to recover only the "noneconomic loss" of pain and suffering. His medical bills were offered and admitted into evidence solely to show that he had suffered a "serious injury." In the charge to the jury the trial court gave the following instruction which was requested by Price: "I charge you that the plaintiff is not entitled to recover for medical bills, such as doctors and hospitals and drugs in this case, but only for such general damages as you may find he is entitled to recover, if any. The plaintiff would be entitled to recover his doctor, hospital, drug and other medical bills from the insurance company which covers the car he was driving, under the provisions of the Georgia Motor Vehicle Accident Reparations Act, commonly called the no-fault law, but not in this particular case. Now the purpose of charging you that, there is certain evidence, documentary evidence that's been introduced in this case that refer to hospital bills and doctors bills. Now these have been admitted for the limited purpose for you to use if they may aid you in any way in determining the severity or lack of severity of the injury in this case but they are not to be considered by you as compensating for the cost of these bills, that is not the measure of damages in this case and you will not consider them to be something that the plaintiff is asking you to return a verdict for, they would not be a part of any verdict you might render in this case." (Emphasis supplied.) Moore objected to the italicized portion of this charge and on appeal enumerates the giving of it as error.

"In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial. (Cits.)" Patillo v. Thompson, 106 Ga.App. 808, 809(1), 128 S.E.2d 656 (1962). This principle is operative not only with reference to liability insurance but also with regard to no fault coverage. See generally Powell v. Manning, 242 Ga. 778, 251 S.E.2d 522 (1979); City Council of Augusta v. Lee, 153 Ga.App. 94, 99(3), 264 S.E.2d 683 (1980).

Price urges, however, that the charge was adjusted to the facts and the law applicable in the case and correctly stated the principle of Code Ann. § 56-3410b(b): "Any person eligible for economic loss benefits ... is precluded from pleading or recovering in an action for damages against a tortfeasor, those damages for which compensation is available for economic loss ...: Provided, however, that nothing contained in this section shall preclude the introduction of any evidence otherwise admissible in a judicial proceeding for the purpose of proving the extent of the injury or injuries sustained by such person." We find this argument less than persuasive. No fault coverage was clearly an applicable and relevant issue in the Powell and Lee decisions; however, the holding in both cases was to the effect that "(n)either the amount nor the fact of insurance coverage should be presented to the jury." Powell, 242 Ga. at 780, 251 S.E.2d 522, supra. Furthermore, Code Ann. § 56-3410b(b) in its entirety was not applicable and relevant in the instant case. Price argues, in essence, that since Moore's medical bills were admitted solely pursuant to the proviso in Code Ann. § 56-3410b(b), it was not error also to inform the jury that, under the remaining portion of the statute, Moore was precluded from recovering for those bills to the extent he was compensated by his own no fault coverage. This argument totally ignores the fact that Moore was not seeking economic losses in this action against Price. Therefore, the preclusion contained in Code Ann. § 56-3410b(b) on such a recovery was not relevant or germane to the issues before either the jury or the court. Compare Lee, 153 Ga.App. 94, 264 S.E.2d 683, supra. What was relevant was simply that Moore's medical bills should be considered solely for the purpose of establishing whether he had sustained a "serious injury" and not as an element of compensable damages. It is readily seen that apprising the jury of this evidentiary limitation on their consideration of Moore's medical bills could have been accomplished in the instant case if the charge as given had omitted the reference to Moore's no fault coverage. Had the charge in the instant case not contained this reference, then but only then it would have been adjusted to the facts and the applicable law. Cf. Walls v. Parker, 146 Ga.App. 882, 883(3b), 247 S.E.2d 556 (1978).

What was relevant in the instant case was the evidentiary consequences of the fact that Moore was not seeking a recovery of economic losses. Any reason underlying the non-recoverability of those losses, including the existence of Moore's no fault coverage, was totally irrelevant. "(I)rrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out." Southeast Trans. Corp. v. Hogan Livestock Co., 133 Ga.App. 825, 830, 212 S.E.2d 638 (1975). We know of no reason why a charge would be requested which included a reference to the plaintiff's entitlement to recover such economic losses from his no fault insurer other than to get the fact of insurance before the jury. We conclude that it was error requiring the grant of a new trial for the trial court to give the contested charge.

2. Moore urges that the jury verdict finding that he was negligent is not supported by the evidence. In related enumerations of error Moore attacks the giving of jury instructions on the principles of contributory and...