Nationwide Mut. Ins. Co. v. Whiten, s. 71759

• Decision Date: 30 June 1986
• Docket Number: Nos. 71759,71760,s. 71759
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. WHITEN et al. WHITEN et al. v. MILLER et al.
• Court: Georgia Court of Appeals

Page 914

346 S.E.2d 914

179 Ga.App. 544

NATIONWIDE MUTUAL INSURANCE COMPANY v. WHITEN et al.

WHITEN et al. v. MILLER et al.

Nos. 71759, 71760.

Court of Appeals of Georgia.

June 30, 1986.

Jonathan C. Peters, William D. Strickland, Decatur, for appellant in No. 71759.

Robert A. Falanga, Atlanta, for appellant in No. 71760.

Robert A. Falanga, Atlanta, for appellees in No. 71759.

Malcolm S. Murray, Decatur, for appellees in No. 71760. McMURRAY, Presiding Judge.

This lawsuit arose out of an automobile collision which occurred on May 25, 1982. It was alleged that an automobile driven by plaintiff Robert Whiten was struck by an automobile negligently driven by defendant Larry Miller. Actual and general damages were sought by Robert Whiten against defendant. Josephine Whiten, wife of Robert Whiten, joined the lawsuit as a party plaintiff and sought damages for loss of consortium.

The Whitens were insured by Nationwide Mutual Insurance Company ("Nationwide"). The policy of insurance which was issued by Nationwide to the Whitens provided for uninsured motorist coverage. Because defendant Larry Miller was uninsured at the time of the collision, plaintiffs served Nationwide, their uninsured motorist carrier, with a copy of the complaint. Nationwide filed an answer to the complaint in its own name and it proceeded to defend the lawsuit. No answer was filed by defendant Larry Miller and he made no appearance in the case. Following discovery, the case proceeded to trial. The jury returned a verdict against plaintiff Josephine Whiten upon her claim for loss of consortium. However, a verdict was rendered in favor of plaintiff Robert Whiten for actual damages as follows: $6,492.54 (general damages), $1,336.62 (medical expenses) and $939.84 (loss of wages). The parties stipulated that the entire amount of medical expenses and $400 of the lost wages awarded to plaintiff Robert Whiten should be written off in accordance with the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-3(d)(1). See in this connection McGlohon v. Ogden, 251 Ga. 625, 308 S.E.2d 541. Judgment was entered accordingly. Thereupon, Nationwide moved for a new trial. The motion was denied and Nationwide appealed. A cross-appeal was filed by plaintiffs. Held:

1. During direct examination, plaintiff Robert Whiten testified that he and his wife visited a psychiatrist (actually, the practitioner was a psychologist) because they had encountered sexual problems as a result of Robert Whiten's injuries. Plaintiffs' counsel asked why plaintiffs only visited the psychiatrist on one or two occasions and plaintiff responded that he could not afford to return to him. Thereupon, counsel for Nationwide moved for a mistrial on the ground that plaintiffs prejudicially injected their economic status into the lawsuit. See Smith v. Satilla Pecan Orchard, etc., Co., 152 Ga. 538(3), 110 S.E. 303. The trial court overruled the motion for mistrial. It did not instruct the jury to disregard the statement of the witness. See in this connection Strother v. South Expressway Radio, 132 Ga.App. 771, 773, 209 S.E.2d 93. The trial court ruled, however, that Nationwide was entitled to cross-examine plaintiff Robert Whiten concerning his averment that he could not pay the specialist for services rendered. See in this regard Johnson v. Bryant, 178 Ga.App. 327, 343 S.E.2d 397. Nationwide sought no additional ruling by the court. Rather, Nationwide took up the gauntlet and questioned plaintiff at length concerning the availability to him of no-fault benefits.

In its first enumeration of error, Nationwide contends the trial court erred in failing to grant its motion for mistrial or, alternatively, by failing to take appropriate corrective action with regard to the prejudicial evidence. We disagree. The trial court did not abuse its broad discretion in refusing to grant a mistrial. See Georgia Power Co. v. Redman, 137 Ga.App. 427, 429(3), 224 S.E.2d 477. In closing argument, counsel for Nationwide suggested to the jury that plaintiffs could have returned to the "psychiatrist" if they wanted to because the bills would have been paid by Nationwide. Thus, he asserted: "[T]hat is not why Mr. Whiten or Mrs. Whiten didn't go back to Dr. Clark, because they couldn't afford it. That statement was made in an attempt to gain your sympathy and to prejudice you in some way against this insurance company that has got this barrel full of Yankee money ..." Under the circumstances of this case, we do not think the corrective action taken by the trial court was improper. See Johnson v. Bryant, 178 Ga.App. 327, 343 S.E.2d 397, supra. See also Georgia Power Co. v. Green, 158 Ga.App. 717, 718(2), 282 S.E.2d 145 (by repeating and expanding upon improper remark during closing argument, counsel impliedly waived any objection). Nationwide's first enumeration of error is without merit.

2. In his closing remarks to the jury, plaintiffs' counsel said: "You remember what I told you in my opening statement about Nationwide. Mr. Miller, if he is uninsured, Mr. Whiten has an opportunity to file a lawsuit against Mr. Miller and in the event that you all return a verdict, whatever that is, we will have to be paid by Nationwide and that is why they have made an appearance ..." Thereupon, counsel for Nationwide interjected the following: "[Plaintiffs' counsel] has made a misstatement when he tells the jury that whatever verdict is returned against Mr. Miller has to be paid by Nationwide. That is a misstatement. That is outside of the evidence and it is very misleading ..." Nationwide moved for a mistrial. It contended that plaintiffs' counsel invited the jury to render a large verdict because the tab would be paid by an insurance carrier. The trial court took the motion under advisement. It proceeded to instruct the jury that "It is for the jury to determine whether or not the argument of counsel is based upon the evidence that you have heard during the trial." No further instruction was given by the court. In his closing remarks counsel for Nationwide continued the argument set forth in Division 1 of this opinion. He stated: "Just unload on the insurance company. The only money they have is what the public pays them in the way of premiums. What you pay in Cobb County is based on the expenditures made in Cobb County and what the people in Gwinnett County pay is based on the loss ratio in Gwinnett County. If you want to go back and return a verdict just because it is an insurance company and because they have got a lot of money, all it is going to do is just cause insurance costs to go up again." After the jury returned its verdict, the trial court denied Nationwide's mistrial motion.

Under the facts and circumstances of this case, we cannot say the trial court abused its discretion in denying Nationwide's motion for mistrial. Assuming, arguendo, the remarks of plaintiffs' counsel were prejudicial, any objection to the remarks were waived impliedly when Nationwide's counsel made his closing comments. See Georgia Power Co. v. Green, 158 Ga.App. 717, 718(2), 282 S.E.2d 145, supra.

3. Because the parties stipulated that medical expenses and lost wages should be reduced in accordance with the Georgia Motor Vehicle Accident Reparations Act, the trial court instructed the jury as follows: "If your verdict is one finding that the plaintiff Robert Whiten is entitled to medical expenses and lost wages, the Court instructs you at this time that you are to determine from the evidence the full amount of any lost wages or medical expenses that may have been incurred by the plaintiff as a result of the injury. That is, you are to disregard any testimony in the case in regard to any recovery that the plaintiff may have had from other collateral sources in regard to lost wages or medical expenses. I am instructing you, if you return a verdict for medical expenses and lost wages to determine the full amount of lost wages and medical expenses and return that in the case, if you return a verdict for those items." The jury was given a verdict form which contained, inter alia, blank spaces for pain and suffering damages, medical expenses and lost wages. The jury returned a verdict in favor of plaintiff Robert Whiten for pain and suffering damages in the...