Patterson v. Lauderback, A93A2358

• Decision Date: 13 January 1994
• Docket Number: No. A93A2358,A93A2358
• Citation: 440 S.E.2d 673,211 Ga.App. 891
• Parties: PATTERSON et al. v. LAUDERBACK et al.
• Court: Georgia Court of Appeals

Page 673

440 S.E.2d 673

211 Ga.App. 891

PATTERSON et al. v. LAUDERBACK et al.

No. A93A2358.

Court of Appeals of Georgia.

Jan. 13, 1994.

Reconsideration Denied Feb. 9, 1994.

Certiorari Denied April 1, 1994.

Cochran, Camp & Snipes, Scott A. Cochran, Smyrna, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, Atlanta, for appellees.

Weiner, Yancey & Dempsey, Beryl H. Weiner, Atlanta, amicus curiae.

ANDREWS, Judge.

After Mary Burke Patterson died as a result of injuries she suffered in a two-automobile accident with Kenneth Lauderback, the plaintiffs brought this wrongful death action against Lauderback and his employer. A jury rendered a verdict in favor of the defendants, and the plaintiffs appeal from the judgment entered on the verdict.

1. Although not raised, we address the threshold question of jurisdiction. The plaintiffs' motion for new trial was void when filed on November 19, 1992, prior to the trial court's entry of judgment on the jury verdict on December 1, 1992. Nevertheless, the subsequent entry of judgment on the verdict rendered the otherwise void motion merely premature, "and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal." McKeever v. State, 189 Ga.App. 445, 446, 375 S.E.2d 899 (1988); Cornelius v. Lawrence, 203 Ga.App. 113, 416 S.E.2d 115 (1992). A timely notice of appeal was filed within 30 days after disposition of the premature motion on April 21, 1993.

2. Plaintiffs contend the trial court erred by admitting, over objection, evidence of collateral benefits. On direct examination, the deceased's son testified as to the extensive injuries his mother sustained in the accident, the pain and suffering she experienced during her hospitalization and medical treatment prior to her death, and the amount of the hospital bills. While identifying two photographs of his mother taken while she was in the hospital intensive care unit, the following testimony was given:

"Q: Did your mother know why those photographs were being taken?

"A: Yes, she did.

"Q: And tell the Jury why those photographs were taken.

"A: Her injuries were extensive. We knew that rehabilitation would be a long process. She was not a wealthy woman...."

Defense counsel objected that the deceased's financial status was irrelevant, and moved the trial court to strike the testimony regarding her lack of wealth. In making the objection, defense counsel, in an apparent reference to the deceased's husband, further stated: "That's not relevant in this matter. The retired captain had benefits, and he knows that that's not relevant...." Plaintiff made no objection to the defense reference to "benefits," and the trial court denied the defense motion to strike the testimony as to the deceased's lack of wealth. On cross-examination of the deceased's son, defense counsel posed the following question: "And you mentioned the reason you took the photographs earlier--is it true, Mr. Patterson, that you had fifty thousand ($50,000.00) USAA coverage, PIP coverage and also CHAMPUS Veterans Dependent Benefit, didn't you?" Plaintiffs' counsel objected and subsequently moved for a mistrial arguing that this was irrelevant evidence of collateral insurance benefits. Defense counsel countered that the defense had the right to cross-examine as to insurance benefits available to pay the medical bills after the deceased's son testified as to his mother's lack of financial resources in connection with the medical bills. The trial court overruled the plaintiffs' objection and motion for a mistrial. The deceased's son answered the question affirmatively indicating that such insurance coverage was available, and there was no further cross-examination on this issue.

Generally, after Denton v. Con-Way Southern Express, 261 Ga. 41, 402 S.E.2d 269 (1991), it is error to allow evidence of collateral benefits. "The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1(b). Certainly, the pre- Denton, and proper, rule is that when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented [plaintiff] from seeking treatment, defendant is allowed to cross-examine her on this point in the narrow, limited manner which the trial court allowed in this case." (Citations and punctuation omitted.) Moore v. Mellars, 208 Ga.App. 69, 72, 430 S.E.2d 179 (1993).

The clear import of the testimony presented by the deceased's son regarding his mother's lack of wealth was that she was not able to afford all the extensive medical treatment she would need as a result of her injuries. The defense objected to this evidence of the deceased's financial status, but the trial court refused to strike the testimony. See Nationwide Mut. Ins. Co. v. Whiten, 179 Ga.App. 544, 545, 346 S.E.2d 914 (1986); Gordon v. Gordon, 133 Ga.App. 520, 522, 211 S.E.2d 374 (1974). As a result, evidence as to the availability of collateral insurance benefits to pay the medical bills, although generally inadmissible, was relevant for the limited purpose of impeaching the testimony presented by the plaintiffs. See Pouncey v. Adams, 206 Ga.App. 126, 127, 424 S.E.2d 376 (1992); compare Dietz v. Becker, 209 Ga.App. 678, 679-680, 434 S.E.2d 103 (1993). Evidence inadmissible for one purpose, may be relevant and admissible for another purpose. Gordon, supra. Under these circumstances, we find no reversible error in allowing the limited cross-examination as to the availability of insurance benefits to test the plaintiffs' testimony indicating that the deceased was unable to afford necessary medical care. Johnson v. Bryant, 178 Ga.App. 327, 329, 343 S.E.2d 397 (1986); Bridges v. Schier, 195 Ga.App. 583, 584, 394 S.E.2d 408 (1990); Moore, supra at 72; Nationwide, supra. ¹ Although it may be possible to discern some factual differences between Hayes v. Gary Burnett Trucking, 203 Ga.App. 693, 694-695, 417 S.E.2d 676 (1992) and the present case, it is indistinguishable in other respects. See Moore, supra at 72-73 (Andrews, J., concurring specially). Accordingly, Hayes, supra is overruled to the extent it is inconsistent with the holding in this case.

3. The plaintiffs assert they are entitled to a new trial because the prospective jurors were not qualified as to possible interests they may have had in Sentry Insurance, the defendants' insurer on the claim at issue. The pre-trial order provided that the jury be qualified as to "policyholders of Sentry Insurance Company, a mutual company." In Weatherbee v. Hutcheson, 114 Ga.App. 761, 152 S.E.2d 715 (1966) we held:

"If the [insurance] company is a mutual one in which the policyholder has an interest in the assets of the company, usually realized by way of dividends reducing the policy premium, it is proper to qualify the jurors as to whether any of them are policyholders or related within the prohibited degree to policyholders. It has been held not error to make the inquiry as to policyholders of any company when it does not appear whether or not it is a mutual. [Cits.] But if it should appear that the company is a stock company the inquiry would be irrelevant, for in that event the policyholder has nothing more than a contract with the company, giving him no interest in its assets, and he is no more disqualified than would be a depositor in a bank that is a party to litigation.

"Now that we have pre-trial procedures, requests for admissions, discovery, and notice to produce, there should be no difficulty in obtaining the name of any interested company for use by the court in qualifying the jury. [Cit.]

"Generally, the information is readily obtainable if the court will simply make inquiry of the defendant's attorney prior to trial. But it should be done out of the presence and hearing of the jury. [Cit.] The judge may pre-try the case and get the information at the pre-trial hearing. He may simply call counsel into his chambers before starting the trial and obtain the information. If it were done in either manner we should think it the duty of counsel to reveal to the court the information." (Emphasis in original.) Id. at 765, 152 S.E.2d 715; see also Holland v. Watson, 118 Ga.App. 468, 471, 164 S.E.2d 343 (1968) (when questioned by the court regarding insurance coverage for purposes of qualifying the jury, defense counsel has a duty to reveal the relevant facts).

The record reflects that prior to qualification of the jury, and out of the jurors' presence, plaintiffs' counsel brought to the trial court's attention that under the pre-trial order, and because Sentry Insurance was described by name as a mutual company, the prospective jurors should be qualified as to possible interest as policyholders. Defense counsel responded that even though Sentry Insurance continued to call itself a mutual company by name, it was no longer a mutual company, and that "this is a stock company in Stevens Point, Wisconsin.... It's a stock company even though that's in the name. It's not a mutual company.... The policyholders do not share any kind of dividends or benefits or anything like that." The trial court inquired directly of defense counsel: "So is it a company where the policyholders are the stockholders or not?" Defense counsel responded: "It's not." Based on this information provided by defense counsel, the jury was not qualified as to possible interest as Sentry policyholders.

On March 11, 1993, more than 30 days after entry of judgment, but prior to the trial court's ruling on the motion for new trial, plaintiffs filed an extraordinary motion for a new trial accompanied by a certified copy of the articles of incorporation of Sentry obtained from the office of the commissioner of insurance of the State of Wisconsin. The articles of incorporation for "Sentry Insurance, A Mutual Company" stated: "This Company is...