Smith v. Crump
Decision Date | 02 October 1996 |
Docket Number | No. A96A2145,A96A2145 |
Citation | 476 S.E.2d 817,223 Ga.App. 52 |
Parties | SMITH v. CRUMP. |
Court | Georgia Court of Appeals |
Johnson, Dangle & Parmer, Robert F. Dangle, Barton R. Bright, III, Carrollton, for appellant.
Smith, Gambrell & Russell, Matthew S. Coles, Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Gambrell & Stolz, Irwin W. Stolz, Jr., Linda A. Klein, Atlanta, Stephen M. Ozcomert, Decatur, for appellee.
Joyce Crump, appellee, sued James Smith, Jr., appellant, in the State Court of DeKalb County on March 9, 1995, for injuries received in a motor vehicle collision, which occurred on November 17, 1994. Appellant was timely served on March 16, 1995, and answered on April 14, 1995, demanding a jury trial.
The case came up on the jury calendar on February 9, 1996. Appellant filed a timely motion in limine, seeking to exclude the qualification of the jury with appellant's insurance carrier. The case was called for trial on February 20, 1996, when the motion in limine was heard and denied.
The jury returned a verdict for the appellee on February 22, 1996, in the amount of $1,050,597, and judgment was entered on February 28, 1996. A motion for remittitur or, in the alternative, a new trial was filed on March 7, 1996. The motion was heard and denied on May 6, 1996. Notice of appeal was filed on June 4, 1996.
At trial, the evidence showed that appellee received significant soft tissue and neurological injuries to her spine, and following spinal surgery to remove discs and fuse her cervical spine, her medical expenses totaled $36,148.91. Appellee's complaints involved severe headaches, neck pain, radicular pain from the neck down the arm, low back pain, left knee injury, right ankle injury, inability to sleep, depression, and associated short temper. Dr. Saba, appellee's neurologist, found right ankle swelling, weakness in the left knee, decreased sensation at the right C-7 vertebra, 30 percent reduction in range of motion in the neck and low back, and muscle spasms in the neck and low back. Dr. Saba's diagnosis as of January 10, 1995, consisted of post concussion syndrome, depression, headaches, strained knee and ankle, and severe injury to the low back and neck, indicating multiple disc herniations. After an M.R.I. had been performed, Dr. Saba diagnosed a displaced L5-S1 disc, a disc problem at C3-4, and herniated discs at C4-5, C5-6, and C6-7. Dr. Goodman, appellee's neurosurgeon, saw her on June 20, 1995, and performed a myelogram on her on June 28, 1995, which confirmed that she had large disc herniations at C4-5 and C6-7, with likely herniation at C5-6. On August 28, 1995, Dr. Goodman performed a cervical spinal fusion after surgically removing the affected discs. As late as November 1995, Dr. Goodman found postoperative muscle spasms and pain, which prevented appellee from being able to work. Dr. Saba, on October 31, 1995, found that appellee had headaches and chronic sleep problems. Prior to surgery, appellee's disability rating to the body as a whole had been at 19 percent; after surgery the rating was reduced to 17 percent.
Appellee had limited education and job skills, having previously worked in the hotel/motel industry as a housekeeper, earning $4.25 per hour. She was totally disabled from returning to this or any other physical work by her injuries. She was 38 years of age at trial and her injuries were permanent, with future pain and suffering expected.
1. Appellant's first enumeration of error contends that the trial court erred by allowing the jury to be qualified as to appellant's insurance liability carrier, causing prejudice to appellant.
The first qualification of a jury as to insurance occurred in City of Sandersville v. Moye, 25 Ga.App. 64(4), 65-66, 102 S.E. 552 (1920).
In Bibb Mfg. Co. v. Williams, 36 Ga.App. 605(1), 607, 137 S.E. 636 (1927), counsel for the insured argued that the qualification of the jury as to insurance would have a prejudicial effect on the insured. This Court then held: "where it appears that the defendant is in fact insured against liability, the employees, stockholders, and relatives of stockholders of the insurance carrier are disqualified to serve as jurors in the case; and in such case it is not error for the court, at the request of the plaintiff and over the objection of the defendant, to purge the jury by inquiring whether any juror is an employee or stockholder of, or related to a stockholder of, the insurance company." Id.
The Supreme Court held that it was reversible error not to voir dire and to remove all jurors who were employees or stockholders, or related by blood or by marriage to a stockholder or employee, of an insurance company interested in the case. In Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549, 174 S.E. 131 (1934), the court held: "We may concede that the mention of an indemnity contract in the argument or any other impertinent reference thereto would be objectionable; but there is a vast difference between instances of this character and a bona fide effort to preserve the right of trial by an impartial jury." See Tatum v. Croswell, 178 Ga. 679, 174 S.E. 140 (1934); Coleman v. Newsome, 179 Ga. 47, 174 S.E. 923 (1934); Rogers v. McKinley, 52 Ga.App. 161(30), 164, 182 S.E. 805 (1935); OCGA § 15-12-135.
This Court, not unmindful of the incidental effect of qualifying the jury as to the insurance carrier, has consistently held that it would be reversible error not to do so, because, presumptively, such failure would be harmful to the plaintiff in obtaining a fair and impartial jury. In Shepherd Constr. Co. v. Vaughn, 88 Ga.App. 285, 288, 76 S.E.2d 647 (1953), this Court held that " [u]nder the circumstances of this case, there was a strong probability that the insurance company was to some extent interested in the outcome of the case, and this was sufficient to authorize the trial judge to qualify the jury panel with respect to their interest in the insurance company." See Stevens v. Wright Contracting Co., 92 Ga.App. 373, 378-380, 88 S.E.2d 511 (1955) United Security Agency v. Sims, 161 Ga.App. 167, 288 S.E.2d 117 (1982).
In Weatherbee v. Hutcheson, 114 Ga.App. 761(1)(a), 152 S.E.2d 715 (1966), this Court found that in the case of mutual insurance companies, the policyholder had a direct pecuniary interest in the outcome of litigation involving one of its policies. The Court held: "If the company is a mutual company, in the assets of which the policyholders have an interest, they are disqualified; aliter if the company is a stock company." Accord Bailey v. Todd, 126 Ga.App. 731(15), 741, 191 S.E.2d 547 (1972); Thompson v. Sawnee Elec., etc., Corp., 157 Ga.App. 561(2), 562-563, 278 S.E.2d 143 (1981); Crosby v. Spencer, 207 Ga.App. 487(6), 490, 428 S.E.2d 607 (1993).
Only after Denton v. Con-Way Southern Express, 261 Ga. 41, 402 S.E.2d 269 (1991) (overruled by Grissom v. Gleason, 262 Ga. 374, 418 S.E.2d 27 (1992)) have counsel for insureds sought to raise an issue of qualifying the jury as to the insurers. Absent relevance and materiality, the mention of insurance has been deemed harmful. However, not all mention of insurance in the presence of the jury is deemed harmful; since the 1930's, direct action against insurers has been permitted when the tortfeasor is an intrastate common or contract carrier, and the policy of insurance must be put into evidence to prove coverage with the deletion of the amount of coverage. OCGA § 46-7-12; St. Paul Fire, etc., Co. v. Fleet Transport Co., 116 Ga.App. 606, 158 S.E.2d 476 (1967); Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746, 272 S.E.2d 702 (1980). Since 1963, with the passage of the Georgia Uninsured Motorist Act, Ga. L.1963, p. 588, OCGA § 33-7- 11(d), the insurer has had the option of answering in its own name or in the name of the uninsured motorist; for legal reasons, insurers have preferred to defend in their own names. See State Farm Mut. Auto. Ins. Co. v. Horace Mann Mut. Ins. Co., 125 Ga.App. 411, 188 S.E.2d 171 (1972); Home Indem. Co. v. Thomas, 122 Ga.App. 641, 178 S.E.2d 297 (1970); State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga.App. 193, 154 S.E.2d 286 (1967). Mandatory motor vehicle liability insurance, either as no fault or under OCGA § 33-34-5, has been in effect in Georgia since 1974. Ga. L.1974, p. 113. Therefore, to apply the quote from the late Judge Hall's concurrence in Young v. Carter, 121 Ga.App. 191, 193, 173 S.E.2d 259 (1970), "Any juror who doesn't know that there is liability insurance in the case [of a motor vehicle collision] by this time should probably be excused by virtue of the fact that he or she is an idiot." Since 1921, when the first jury was qualified as to insurance coverage and the various other situations when insurance is properly before the jury, there has been no systemwide failure of justice caused by the knowledge of the existence of insurance. Since Denton, this Court has held in both Crosby v. Spencer, supra, and Franklin v. Tackett, 209 Ga.App. 448(2), 450, 433 S.E.2d 710 (1993), that Denton had no legal effect on the necessity for the trial court to qualify the jury as to the insurance carrier.
Chief Judge Beasley made a well-reasoned special concurrence in Franklin v. Tackett, supra. It is highly seductive in its logic: "Without the link of knowledge, there is no disqualifying interest, because the interest will not affect the decisionmaking." Id. at 453, 433 S.E.2d 710. Ignorance is purifying of interest; so long as the juror remains in ignorance and never suspects that there is an interest, what harm can there be. However, what if they were not truthful in their voir dire to disclose employment or stock ownership on purpose; what if during the trial they suddenly become aware of their interest; or what if, more insidious, someone reveals the common interest between the juror and the party on trial by a company logo on a lapel pin, stationery, file folder or anything that would...
To continue reading
Request your trial-
Ford Motor Co. v. Conley
...insurers required harm to the Conleys to be presumed under Atlanta Coach, 178 Ga. at 551–552, 174 S.E. 131, and Smith v. Crump, 223 Ga.App. 52, 56, 476 S.E.2d 817 (1996). See Barnes Op. at 3. Emphasizing the deference owed to the trial court's fact-finding and discretion in this context, th......
-
Wallace v. Swift Spinning Mills, Inc.
...prohibited categories may not be impartial and should be removed from the panel for cause. OCGA § 15-12-135(a); Smith v. Crump, 223 Ga.App. 52, 54, 56, 476 S.E.2d 817 ( 1996); Weatherbee v. Hutcheson, 114 Ga.App. 761, 765, 152 S.E.2d 715 (1966). Therefore, in most cases, a presumption of ha......
-
ARA Health Services v. Stitt, A01A0352.
...is not to enter the jury box. (Citations and punctuation omitted.) 269 Ga. at 221-222(6), 496 S.E.2d 907. And in Smith v. Crump, 223 Ga.App. 52, 56-57(2), 476 S.E.2d 817 (1996), this court further analyzed the trial judge's role in implementing OCGA § 51-12-12, OCGA § 51-12-12 does not empo......
- Feggans v. Kroger Co., A96A2087