Wallace v. Swift Spinning Mills, Inc.

• Citation: 236 Ga. App. 613,511 S.E.2d 904
• Decision Date: 09 February 1999
• Docket Number: No. A99A0314.,A99A0314.
• Parties: WALLACE v. SWIFT SPINNING MILLS, INC.
• Court: United States Court of Appeals (Georgia)

511 S.E.2d 904

236 Ga. App. 613

WALLACE v. SWIFT SPINNING MILLS, INC.

No. A99A0314.

Court of Appeals of Georgia.

February 9, 1999.

Reconsideration Denied February 23, 1999.

Charles A. Gower, Columbus, George W. Snipes, Christopher J. McFadden, Decatur, for appellant.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, Atlanta, for appellee.

ELDRIDGE, Judge.

Plaintiff-appellant Kenneth C. Wallace challenges the trial court's denial of his motion for new trial in his personal injury suit against Swift Spinning Mills, Inc. ("Swift"). We affirm.

In his complaint, Wallace alleged that he was injured in a collision between his employer's vehicle, which he was driving, and a truck driven by an employee of Swift. Swift had vehicle liability coverage through American Motorist Insurance Company ("American Motorist"), which provided the defense in this action. According to Wallace, American Motorist is a corporate subsidiary of Kemper National Insurance Company ("Kemper"). Following an October 1997 jury trial, the jury issued a verdict for the defense. Wallace filed a motion for new trial, which was denied by the trial court. He timely appeals. Held:

1. In his sole enumeration of error, Wallace contends that the trial court committed reversible error when it refused to qualify the jurors as to their relationship to four insurance companies¹ that he asserts are "subsidiaries," "sisters," or otherwise related corporations to the defendant's corporate insurance carrier. We disagree.

During the pre-trial hearing, after plaintiff's counsel presented his request to qualify the jurors as to all of the insurance companies, the trial court proposed, "How about if I ask them if anybody is a shareholder, officer, agent or otherwise affiliated with Kemper Insurance or any of it's [sic] subsidiaries?" Plaintiff's counsel responded, "Well, they're not going to know who they are, Judge." The trial court then replied, "Well they're not going to be officers and directors then. If they're an officer, director and employee they'd know it." Plaintiff's counsel then stated that the jurors should be qualified because "[t]hey may have insurance coverage with one of these subsidiaries and if they do that's grounds for us to move to strike them, Judge." The trial court disagreed and qualified the jury only as to its association with American Motorist.

Wallace is correct in his assertion that a party is entitled to a trial by fair and impartial jurors. Jury panelists with a relationship to an insurance company that has a demonstrable, direct financial interest as an insurer in the case, such as employees, officers, stockholders, policy holders of mutual insurance companies,² or family members of someone in these 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 harmful error arises when a trial court refuses a request to qualify jurors as to their relationship with the insurers of the parties, regardless of whether the insurers are named parties to the action. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549, 174 S.E. 131 (1934); Arp v. Payne, 230 Ga.App. 840, 497 S.E.2d 810 (1998); Smith v. Crump, supra at 54, 56, 476 S.E.2d 817; see also Patterson v. Lauderback, 211 Ga.App. 891, 895(3), 440 S.E.2d 673 (1994); Weatherbee v. Hutcheson, supra at 764-765, 152 S.E.2d 715; Shepherd Constr. Co. v. Vaughn, 88 Ga.App. 285, 288, 76 S.E.2d 647 (1953). Such presumption must be rebutted, if at all, prior to the verdict. Arp v. Payne, supra at 841, 497 S.E.2d 810; see also Atlanta Coach Co. v. Cobb, supra at 551-552, 174 S.E. 131.

However, no presumption of harmful error arises absent an affirmative showing to the trial court by the proponent of such qualification that there is a strong probability that insurance companies that are not insurers of the parties have a direct, demonstrable financial stake in the outcome of the case. See Smith v. Crump, supra at 54, 476 S.E.2d 817; Shepherd Constr. Co. v. Vaughn, supra at 288(1), 76 S.E.2d 647. Without such showing, this Court refuses to require the trial court to qualify a jury panel as to their relationship with non-insurers. Notably, such financial interest in the outcome cannot be established by simply alleging, as Wallace has done in this case, that the non-insurers share a common "parent" corporation with an insurer.³ Indeed, in an age where many corporations have multiple subsidiaries in several different corporate divisions, it is possible to envision a situation, such as that presented in Holt v. Scott, 226 Ga.App. 812, 814, 487 S.E.2d 657 (1997),⁴ where it would be extremely difficult or impossible to find jurors who are not subject to disqualification due to a prohibited relationship with any of the subsidiaries of a large corporation.

In addition, public policy would not be served by allowing the qualification of jurors as to multiple non-insurers without first requiring that the proponent of such qualification establish that the companies have a financial stake in the outcome of the case. The reason is the same as that propounded for the exclusion of evidence of insurance coverage, i.e., the significant potential for jurors to be prejudiced regarding the type and amount of insurance coverage available to the parties. See Atlanta Coach Co. v. Cobb, supra at 549, 174 S.E. 131; Denton v. Con-Way Southern Express, 261 Ga. 41-43, 402 S.E.2d 269 (1991), overruled on other grounds, Grissom v. Gleason, 262 Ga. 374, 376, 418 S.E.2d 27 (1992); Smith v. Crump, supra at 54, 476 S.E.2d 817; Gonzalez v. Wells, 213 Ga.App. 494, 445 S.E.2d 332 (1994); Franklin v. Tackett, 209 Ga.App. 448, 450-455, 433 S.E.2d 710 (1993) (Beasley, P.J., concurring specially); McKin v. Gilbert, 208 Ga.App. 788, 790, 432 S.E.2d 233 (1993); Collins v. Davis, 186 Ga.App. 192, 366 S.E.2d 769 (1988); Weatherbee v. Hutcheson, supra at 765(1)(b), 152 S.E.2d 715.

During the pre-trial hearing in this case, Wallace presented no evidence, beyond his mere assertion,⁵ that the "subsidiaries" had any financial interest in the case or that they would be affected in any way by the outcome of this case.⁶ Further, Wallace failed to demonstrate in his motion for new trial any such interest beyond mere allegations of an association of the companies through a common parent corporation.⁷ Accordingly, the trial court did not err in failing to qualify the jurors as to their association with Lumbermen's Mutual Casualty Company, American Manufacturer's Mutual Insurance Company, and American Protection Insurance Company.

2. As to Kemper National Insurance Company, it is unnecessary to determine whether Kemper had a direct financial interest in the case due to the unsubstantiated allegation that Kemper is the parent corporation of Swift's insurer. Wallace waived any objection to the trial court's failure to qualify the jurors as to their association with Kemper. The trial court expressly offered on the record to qualify the jurors as to their relationship with Kemper, but plaintiff's counsel complained that such qualification would be insufficient. In so doing, he clearly presented the court with an "all or nothing" choice, which was properly rejected. See Division 1, supra. "It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party's own trial tactics or conduct procured or aided in causing. Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997)." Maxwell v. State, 233 Ga.App. 419, 423(4)(b), 503 S.E.2d 668 (1998).

Judgment affirmed.

POPE, P.J., and SMITH, J., concur.

1. In his pre-trial order, Wallace requested that the trial court voir dire the jurors as to their relationship with, inter alia, the following entities: "2. Lumbermen's Mutual Casualty Company, stockholders, officers, agents and other affiliations[;] 3. American Motorist Insurance Company, stockholders, officers, agents and other affiliations [(defendant's insurance carrier);] 4. American Manufacturer's Mutual Insurance Company, stockholders, officers, agents and other affiliations[;] 5. American Protection Insurance Company, stockholders, officers, agents and other affiliations[; and] 6. Kemper National Insurance Company, stockholders, officers, agents and other affiliations."

2. A mutual insurance company is one that does not issue capital stock, so that "the...