*1 behind are issues for the decide.23 to Christian Towers claims that Owens assumed the risk when she through premises revolving using decided leave the door points showing walker. It to evidence that the residents of Christian expected independently themselves; Towers to live care are and for incident; that Owens was lucid at the not like Owens time and that did revolving dangerous. doors and them considered Uncontro- Lazenby verted evidence also shows that assured Owens she help through revolving returning Owens doors after Lazenby negligent failing help the through But van. whether was Owens assisting the door and van into the before the other question Accordingly, residents is court for the trier fact. the trial granting summary judgment erred to Christian Towers. Judgment part part. Pope, J., and reversed in P. and affirmed Miller, J., concur. Decided November 2001.
Reconsideration denied December Larry Adams, III, Adams & Stewart, Charles R. Adams E. appellant.
Hall, Booth, Slover, Braun, Weissman,Nowack, Smith & Karl M. Curry Leigh Caley, appellees. Wilco, Wilco, & M. Steven D. A01A1202. CHAMBERS v. HOSPITAL, GWINNETT COMMUNITY et al.
INC.
Pope, Presiding Judge. flight injured. Wenonah Chambers fell down of stairs and was 75-year-old Community The Hospital, Chambers was treated at the Gwinnett emergency
Inc. room Dr. Kamlesh Gandhi and released. going home, After Chambers suffered a subdural and hematoma lapsed regained coma; consciousness, into she but left blind brought and unable walk. Chambers a medical action against Hospital granted and Dr. Gandhi. The trial court sum- mary judgment Hospital to the case Dr. Gandhi went resulting appeals. to trial, in a defense verdict. Chambers now We find her enumerations of error without merit and affirm. Bird, 63) (1995) (“the Inc., Pye Taylor App. 814, See & pri
mary purpose nursing who, age, business home is to take care residents because of themselves”). infirmity ailment, longer or some no take are able to care of evidence erred the trial court claims
1. Chambers in MAG Mutual also were experts two defense Gandhi was that, because argues Company. Insurance a financial had Mutual, the defense by MAG also insured is “commit- Admission of evidence of the case. in the outcome court, determination the trial whose discretion of the sound ted to *2 an abuse of dis- it amounts to unless appeal disturbed on shall not be omitted.) (Punctuation v. Crosby, Tire &c. Co. Cooper cretion.” 21) (2001). (543 (2) 454, 457 Ga. is jury that, principle, as a general Chambers
We agree in a case. See OCGA interest witness’s financial consider a entitled to (5) (123 SE2d 824, 828-829 Fowler, 104 Ga. 24-4-4; v. Jordan § liti- 334) (1961). evidence of a law that However, it is also settled Glisson, 163 v. inadmissible. See Goins is generally insurance gant’s (1982). (292 (1) Court As our Supreme 290, 292 Ga. of a defend- introducing evidence concern is that recognized, has damages. increased to award motivate a insurer could ant’s 41, 42, n. 2 Express, Southern Con-Way v. Denton has that a doctor could well surmise although jurors And evidence . . . tends insurance, [the] introduction of “the have may irrelevant and that usually that is something to emphasize and conclu- deliberations quality jury’s effect on the an adverse 309, 313 P2d 156 Ariz. Susong, sions.” Barsema (1988). in the the financial interest demonstrate only
Chambers can any judgment that by showing witnesses case of these has held that a finan- insurer. But this Court Dr. Gandhi’s paid by be is not “so liability insurer a witness in a defendant’s cial interest of init admitting as to warrant material than prejudicial much more Ga. Conley Gallup, evidence.” it distinguishable is because Conley argues We recognize insurance policy. involve a “mutual” does not expressly indemnity looks for insurer “each policy-holder in a mutual policy-holders,” of each of the other to the payments loss (1884), but there Co., 72 Ga. Southern Mut. Ins. Carlton v. more than an inchoate had experts no that Chambers’s showing particular of this the outcome financially insignificant case. contin- any extent of was no as to the proffer
For there example, recognizes law Georgia of MAG Mutual. of the members liability gent the members type Under one policies. of mutual insurance two types obliga- company’s of the mutual discharge rata for pro are liable a nonas- type policy, the second But under OCGA 33-14-68. tions. § all the eliminate company policy, sessable is The record OCGA 33-14-71. of its members. liability § contingent policy in this silent as to what kind of mutual insurance Therefore, thing exists any- experts had Chambers has established that a de minimis financial interest at stake. more than showing We be a of a more substantial financial find there must interest to warrant the introduction of evidence that Dr. Gandhi and the company. share the same insurance Most states have adopted a test when evidence “substantial connection” to determine liability coverage [this] permissible.1 test, of common “Under plaintiff an has connection must able establish that more [a] policyholder, or[,] than to defendant’s insurer the case company, membership.” Grotheer, of a mutual insurance v.Mills 1998). (Okla. noted, P2d As one court the connection merely having a common insurance carrier too attenuated to out- weigh potential prejudice from the admission such evidence: recognize policyholders company
We have, in a mutual insurance very greater nature, its financial stake types than do in other of insurance companies. Virtually every jurisdiction has nevertheless policyholder represents mere concluded ated a status too attenu- *3 company, with “connection” an insurance mutual or probative otherwise, for the value of such evidence to out- weigh potential prejudice jury’s to the deliberations. (Citations omitted.) (479 App. Jackson, Warren v. 96, 125 N.C. 101 278) (1997). (Ala. Bryant, SE2d 111, See also Otwell v. 497 S2d 115 1986) (the overwhelming prejudicial allowing effect of insurance evi “virtually potential dence must be balanced non-existent” expert’s coverage professional liability pol for bias from an under a icy). employing
Courts
the substantial connection test have admitted
significant
insurance evidence
connection,
where witness has a
merely holding
policy,
than
other
with the defendant’s insurer.
(551
349) (2001) (evidence
Rohrbaugh,
Lombard v.
Chambers directs holding share an an witness and defendant where company, such an interest admis- a mutual OB-GYN, 124, 128 South 71 Ohio St.3d sible. See Ede v.Atrium acknowledges, opinion this But as dissent NE2d reflects the the issue. among many
minority states to have considered view majority Georgia law is in accord with the rule We believe that upon analysis Based and the substantial connection test. applicable our party facts of we find that a must law and the this simply a connection than common demonstrate more substantial mutual effect of evidence that the defendant’s Mutual was potentially prejudicial to overcome the insurance carrier introducing Here, evidence of a defendant’s insurance. by merely were insured MAG probative prejudicial. not more than See Thomas v. (1) Hosp., App. 764, Newnan 766-767 Accordingly, we manifest the trial find no abuse of discretion court such evidence. refusing the trial erred 2. Chambers claims allow testify expert, Freedman, Dr. as to whether a Chámbers’s medical physician attending should have measured prothombin tendency patient’s (“pro-time”), of a time which tests disagree. experience to clot. We Whether a witness has the nec- blood testify essary requires par- of care under a as to what standard is a within the discretion of ticular set of circumstances matter sound court, discretion not be unless mani- the trial and such will disturbed Glynn-Brunswick Hosp., festly abused. McDonald v. Mem. Ga. *4 App. presence outside of Dr. Freedman was cross-examined the the jury: you applicable to
Q: Are familiar with the of care standard presenting received in to the treatment that Mrs. Chambers hematologist, emergency other room, not to a not to some an setting? testify emergency you specialty, but in an room Can setting? what the standard of care in that No, I cannot. A: upon testimony
The trial Dr. Freedman based this find that court was authorized to qualified opine not to that the of care of of was room standard emergency physician required taking an Chambers’s like Dr. the Gandhi
pro-time. ruling, if But even the trial court erred in so no was reversal testify concerning warranted. Dr. Freedman to was allowed the importance taking pro-time, of and another defense witness testi- required pro- fied that of the standard care Dr. Gandhi to obtain a essentially in time. Error evidence is harmless where the same evidence has been admitted and the Platt considered (c) (423 (1) Co., Ins. Nat. Gen. Ga. (1992). admitting 3. Chambers claims the trial court erred evidence of given previous argues care actions of the two other doctors Chambers after two falls. She treating Chambers are irrelevant negligence treating of issue Dr. Gandhi’s Chambers. Rele vant evidence includes acts or which “to circumstances serve eluci light upon Dept. Transp. date or throw a material issue.” v. Delta of (2) (278 Co., Machine Products pre findWe no abuse of of discretion as evidence Chambers’s light upon question vious medical treatment could shed of applicable required taking whether the pro-time standard of care elderly patients injuries who have suffered in a fall. failing 4. Chambers claims the trial court erred sustain objections nonresponsive by expert counsel’s ato answer witness Dr. testimony responsive, Hartman. We have reviewed the and find it if meandering. allowing The trial court not did err in it. granting Hospi-
5. Chambers claims the trial erred in summary judgment. tal’s motion Because we have found judgment affirmed, Dr. Gandhi must and because Chambers alleges independent negligence part Hospital, no on the but respondeat superior apparent bases her claim on the theories of against agency, judgment Hospital is not sustainable. Whether granting summary judgment Hospital the trial court erred in to the “Nothing require appellate is therefore moot. . . . shall court to (d). pass upon questions § which are rendered moot.” OCGA 5-6-34 argues Chambers that because Co., under Wickliffe Wickliffe (1997), estoppel Ga. collateral requires identity parties, the defense verdict for Dr. Gandhi does preclude proceeding Hospital Chambers from should grant summary judgment. we reverse the trial court’s She asserts Hospital’s liability dependent that this true if even the remains on finding negligent. narrowly that Dr. Gandhi But however Wick- estoppel, restrict the doctrine of collateral that case liffe separate, involved “collateral” actions. filed this action *5 has now that a Gandhi, Dr. and Hospital the and both against of Gandhi, relitigate negligence the issue his she cannot for Dr. found same action. in the Hospi- the proceeding against from precluded is also
Chambers and respondeat superior of to claims by applicable principles tal claims, agent a in favor of the Under such decision agency. apparent master or against employer: the precludes recovery servant or a per- of the master to third liability that where the The rule entirely the dependent upon derivative and son is purely a on merits respondeat superior, judgment of principle is favor of the agent judicata in favor or servant res of action, master, he was though party or principal by rule which one whose is an of broader exemplification may judg- claim the benefit of a liability wholly derivative from his liability ment in favor of the whom person derived. omitted.) Gilmer, (Citations punctuation and Porterfield Andrews, J., Mikell, JJ., P. and con- Miller
Judgment affirmed. J., JJ., Blackburn, Eldridge, dissent. C. and cur. Ruffin dissenting. Chief Judge, Blackburn, by evidence Because I that the trial court erred believe in the two had financial interests outcome defense carrier, a mutual insur- liability case as defendant’s I dissent. company, respectfully ance action, brought
In this Wenonah medical Kamlesh Inc. and Dr. Community Hospital, suit Gwinnett against a subdural hematoma in her brain. misdiagnosis for the of Gandhi trial, Dr. Brantwain and During ensuing Joseph Gandhi called testify Evans as witnesses on his behalf. Dr. Cassandra Gandhi, Brantwain, were all at the time MAG Evans insured cross-examination, Company. plaintiff Mutual Insurance On the witnesses’ financial interest the outcome wished disclose so, as The that she could not do case to the trial ruled ruling trial. This inject the fact of insurance into the it the facts this case. erroneous under in the upon
The witnesses’ financial interest based defense carrier, liability an insured with defendant’s being their also two of evidence. triggers competing insurance rules company, “In first, 24-4-4, determining pre- where provides: The OCGA § wit- lies, the consider . . . the jury may the evidence ponderance second, law interest.” The common . . . or want of nesses’ rule, that, insurance is provides general, litigant’s evidence of a Glisson.2 In of these light competing prin- inadmissible. Goins v. ciples, concerns whether the evidence ultimate consideration outweigh any insurance is such a material nature as to regarding have in any given Conley value it prejudicial Gallup.3 Mutual, With mutual “each pol like MAG icy-holder indemnity looks for of each of payments loss to *6 4 other v. Co. policy-holders.” the Carlton Southern Mut. Ins. Unlike in insurance in a policyholders companies, policyholder nonmutual mutual in significant insurance has a financial stake the company itself, and, insurance, company due the nature of mutual each poli cyholder would have a direct financial in interest the outcome of liti gation brought against any other policyholder.
A mutual insurance is one that does not company issue stock, “the capital so that has an interest the policyholder assets of the of company, usually by realized the divi way dends reducing policy premium.” Weatherbee v. Hutches on.5 See also Patterson v. overruled on other Lauderback,6 (6th grounds, Warren v. Dictionary Black’s Law Ballard,7 ed.), However, 1021. p. these also policyholders may lia any ble for judgment against the insurance Patter company. son Lauderback, supra. v.
Wallace v. Spinning Mills.8 Swift Because Gandhi’s witnesses had a vested interest litigation outcome of their fellow policyholder, the trial court should have allowed Chambers to inform the jury of this financial interest. law, Under Georgia we have previously determined that being a policyholder in a mutual insurance company creates a finan- cial interest with any common other policyholder such company. Mills, See Spinning supra. Swift of Recognition special impartiality problems raised by of nature mutual insurance is not new to Georgia jurisprudence. We have held that “|j]ury panelists with a relationship to an insurance company demonstrable, that has a direct financial interest as an insurer in the such as . . policyholders . of mutual insurance companies . . . not be may impartial and should be removed from the
2 (1) (292 Glisson, (1982). 290, App. Goins v. 163 Ga. 292 SE2d 3 (445 275) (1994). Conley Gallup, 213 Ga. 487 SE2d 4 (1884). Co., 371, Carlton v. Southern Mut. Ins. 72 Ga. 389 5 (1) (a) (152 715) (1966). Hutcheson, Weatherbee 114 Ga. 765 6 Lauderback, (1994). Patterson v. 211 Ga. Ballard, Warren v. 266 Ga. Mills, (1), (1999). Spinning App. 613, Wallace v. n. 2 Swift omitted.) (Footnote Spinning supra Mills, panel at for cause.” Swift policy- experts rationale, defense who are on the same Based insuring a defendant in the mutual insurance holders testify, they impartial, if of their financial and disclosure not be interest not be barred. should experts freely these We that the defendant chose note knowledge Indeed, financial interest their financial interest. their might These in their selection. witnesses well have been factor opinion treating physicians witnesses, witnesses, or fact were experts. could disinterested Plaintiffs and defendant have selected general right not be to disclose the bias of witness should affected voluntary decision to select witnesses with defendant’s in the This is so for the same financial interest outcome reason would be excused cause from any try reality The in this which would the case. case is credibility bearing testified facts on who on Gan- Any kept prejudicial effect dhi’s behalf were disclosure of defendant’s from the might interest have was the witnesses’ result materiality this witnesses, choice of outweighs any inject prejudice that defendant has elected into the trial. coverage arguments that evidence of
General *7 unfairly prejudice jury apply freely selected wit- do not nesses interest in the who have financial outcome by grossly overestimating
[T]he trial court erred what testimony prejudice [Gandhi] extent insured [Testimony regarding always . . . insurance is not prejudicial. However, too often courts have a Pavlovian — testimony immediately response assuming to insurance prejudice. today’s jurors, It is naive to believe bom- years with care barded for information about health insur- already ance, not in a case that do assume legal defendant doctor is covered insurance. The charade protecting juries they already keeps from know information from them hidden them relevant information that could assist making their determinations. Our Rules Evi- designed they mind; dence are with truth and fairness in do reality. require that courts should be blind to Ede v.Atrium South OB-GYN.9 majority’s Conley supra, Gallup,
The reliance on its deter- mination the financial interest of the defense need not OB-GYN, Ede a Atrium South NE2d 71 Ohio St.3d misplaced, binding reading disclosed, be as such case A is not here. opinion although of that reveals that involved, MAG Mutual was opinion general court based its on the common law exclusion of insur- applies ance. That case did not address the insurance issue as it insurance, and, such, as it does not control the issue in this jurisdictions persuasive case. We note that cases from other are authority only majority opinion and do not bind this court. While the majority jurisdictions, reflects the view of a of other it is inconsistent Georgia Georgia case law. Under law, current a witness would jury cause, struck from a because of his financial interest in majority’s holding, testify could, but under the before a position without the disclosure thereof. The would not allow such an outlined in this dissent incongruent result. majority points
The out that the record is silent as to whether in this case is assessable or nonassessa- policy the mutual insurance
ble, and it contends that the record contains insufficient evidence regarding witnesses’ financial the outcome of Chambers’ case. These deficiencies in the record result from the trial policy. court’s decision not to review the
During hearing regarding experts’ possible bias, the trial might admissibility court stated that it favor if it had more informa- regarding experts’ potential liability. tion Then, when Chambers gather offered to deciding evidence, such the trial refused, against admissibility instead gathering. to rule without further fact recognized policy, While the trial court the need to review the it elected to rule without such review. Under circumstances, these policy, supports failure of the court to review the best, at a remand hearings. this case for further It also makes it clear that an affirm- ruling inappropriate. ance of the trial court’s ruling. I would reverse the trial court’s Judge I am Judge Eldridge authorized to state that Ruffin and join in this dissent.
Decided November
Reconsideration denied December
Joseph King, appellant. Jr., H.
Weinberg, Hudgins, Wheeler, Ashley Dial, Gunn, Gunn & Earl W. Christopher Nichols, P. Sweeney, Egan, Smith, Owen, H. Gleaton, Jones & Amy appellees. Martin, Kolczak, M. J. Rolfe Willingham, Love, Monyak, Peters, Gilleland & Robert P. Monyak, Ashley Stuckey, House, R. Mark L. amici curiae.