*1 Dеcided November 18, 1998 December denied Reconsideration Lehman, Chason, appellant. L. Porter, & Thomas Lehman Lane, for appellees. Ronnie J. EMORY UNIVERSITY. LEWIS v.
A98A1351. (509 SE2d Judge. Beasley, jury on a verdict entered appeals judgment
Judith Lewis out Long Hospital arising University d/b/a Crawford Emory favor of he received a heart attack which following of her husband’s death four errors of Lewis enumerates hospital. treatment at defendant jurors regard with qualify prospective to allow her to refusing court: carrier; to failing excess insurance Emory’s to their with who died before by of statements made witness allow with a docu- expert of a defense trial; cross-examination prohibiting relied; jury and prejudicing ment or guess speculate. that could not charging they repeatedly lawyers asked the to selection, to the trial court 1. Prior counsel Emory’s explained carrier in the case. identify any insurance $3,000,000 that St. Paul for the first that was self-insured coverage excess there- Marine Company provided Fire & Insurance if a mutual to which company, after. The court asked St. Paul was it a stock company. defense counsel responded the jury are not judges required qualify it understood explained Lewis’ counsel companies. to insurers that are stock respect was, it regardless type company what objected argued as to whether qualify prospective court was required finan- stockholders, officers, directors or had a employees, Lewis’ coun- disagreed Paul. The court but allowed cial interest St. juror’s each prospective comprehensive questions sel to ask background. employment up asked the to award argument,
During closing Lewis moved for a new $4,800,000 but it awarded none. damages, the motion was denied.1 trial but decision in Atlanta Coach Co. Court long-standing Supreme parties improper are addressed conduct of “Motions for new trial because discretion, appel trial'judge. Unless there is an abuse
to the sound discretion of (Citations punctuation upset judge’s omit the trial determination.” late court will nоt ted.) Landers, Bean v. competing pol- v. Cobb2mandates reversal. The Court considered the plaintiffs right panel impartial jurors icies of the to a from which prohibiting indemnity to select a and the rule mention of con- during proceedings.3 non-party tracts It reasoned that a litigation appear insurer’s “own interest in the result of the would equal greater to, be it once if than, not even that of the defendant; and when *2 appears indemnity particular that an contract does in exist purging jury case, the matter of the as to to such com- pany party.”4 important company is not less than if the were an actual employees, officers, Court held that and stockholders and non-party company relatives of stockholders of a insurance judgment disqualified be liable for a in rendered the case are as serving refusing a matter of law from as and that to allow plaintiff’s qualify jury presumption counsel to so the creates a of injury.5 presumption This cannot be overcome after the verdict asserting jurоr disqualified.6 affidavits that no These rules have recently Arp Payne.8 been followed in Dalton v. Vo7and The trial court misunderstood the difference between how companies jury mutual and qualified stock are handled. The must be types regard employees, for both of insurers with to officers, jury qualified stockholders and their relatives.9 The need not be as to policyholders companies policyholders in stock because such do not any company; company have interest in poli- the assets of the mutual cyholders are shareholders or otherwise have an interest in the jury.10 assets of the insurer and therefore none can serve on the qualified insists a need not be as to an excess carrier. Certainly sought damages here, exceeding primary where Lewis the coverage, ground excluding there is no the excess carrier from application non-party Atlanta Coach rule. Both insurers were companies potentially judgment. insurance liable for a The answer to apply whether sought dаmages the same rule would if the primary coverage an amount less than day. must await another qualify The trial court’s failure to as to St. Paul was error. 2 SE 3 Id. at 549-550. 4 Id. at 550. 5 Id. at 551. 6 Id. at 552. (2) (497 245) (1998) (non-precedential), and cases cited therein. (non-precedential), and cases cited therein. Vo, supra. See Dalton v. generally Lauderback, See Patterson v. (1994), grounds, Ballard, overruled on other Warren v. Coach, the error “presumptively Atlanta explained by
As harmful.”11 indicated presumption Supreme Court Although rebutted, guide it did not оut to determine the could be set possibly court manner which the criteria to satisfied. The method or analogous rebut the harm is presumption case Coach. made Atlanta attempt the unsuccessful following dia- the verdict announced the Immediately after I you. All want to thank Right. Again, “THE COURT: occurred: logue — Now, leaves. let them it before that around to see Take you this if And as lawyers to talk choose. you’re free information, anything [it] not that to do with the case had matter now, I you want to ask we question and the case over an any you employed by, employee, on. Are early debated officer, Company? Any with the St. Paul Insurance or stockholder THE immediate Anybody your THE JURY: No. COURT: you? (No THE All Response). COURT: family company? work go. All free to right, you’re none of them. Let record show right. I And, you very sincerely.” thank again, related
First,
failed to ask
whether
Paul,
which is
under
required
who was a stockholder
St.
anyone
*3
Vo,13
recently
“controlling
Coach.12
in Dalton
case
Atlanta
As stated
right
policyholders
not
this
to
to
mutual
inquire
law does
limit
оfficers,
any-
it to
stockholders
employees,
but extends
companies
Second,
like
company.”
one related to stockholders
insurance
Coach,
made
in
court’s offhand
at
inquiry,
the affidavits
Atlanta
the
only
ambiguous
a
not
after the verdict but also
as to whether
time
excused,
True,
a
had been
failed to
for
dire.
it
the
substitute
voir
post-purge
in
court and
the
but that
open
jury dispersed,
before
remedy
pursue
for
omission of the
“to
right
was an insufficient
the
procedure
jury.”14
the lawful
in the selection of a
Atlanta Coach held
there
asserting
grounds
disqualification
that affidavits
are no
are
after trial
insufficient
jury panel
the
which
offered
to
among
verdict,
the
could
jurors
the
of error. “After
presumption
rebut
own
not even
by showing
disqualification,
their
their
impeach
finding
verdict,
to others
have testified
vindication of the
reply
who
indeed,
mistake
nor,
by
any
might
error or
have
explaining
affidavits,
made in their
and which
have been
original
might
been
plaintiff
right
“[T]he
on further examination.”15
had the
to
discovered
Coach, supra,
Atlantа
We constrained to do mystery, can not be conceаled or shrouded where litigation] of a the lawful abridge right pursue proce- so would trial, dure in the jury.”25Throughout parties selection did as to St. Paul. juror disqualified not know whether was enumerations are addressed to avoid recurrence remaining on retrial should there have been error.
2. Jim from chest hospital suffering pains early Lewis was on the 1992. He in a room for emer- morning placed April At gencies monitoring equipment. approxi- and attached to cardiac 4:40 a.m. in a mately cyanotic, apneiс pul- Lewis was discovered Milner, on respiratory therapy supervisor seless state. Sheila to a call for duty, among personnel responded the medical who during attempt and she is the who intubated Lewis help person to resuscitate him. was filed and before
Ms. Milner died three months after this suit
sought
trial. Her
was never taken. Plaintiff
to introduce
deposition
one
allegedly
colleague therapists,
statements
made Milner
two
other,
on
and the
Lewis’ twin
duty
morning
when he came
the next
Coach, supra,
Atlanta
“Q. Did she at all about Jim’s clenched? “A.No. “Q.
Anything being at all him in seizure?
“A.No.” — (Milner) phone Witness Thomas Lewis: “She told me over the during night you I had called shift her, and asked the thera- pist night, supervisor, yes. just on that rather, and she said IAnd you asked, do know what went on in the ER. And she said she responded quickly, to the doctor 99 she ran into the room and it awas recognize zoo, she saw Jim on a stretcher and didn’t him at first very because from the waist to his head he was She blue. said she went to the head of the stretcher to intubate him because the ER physician slip had not been able to I tube. asked her if he was a dif- eаsy, limp. ficult said, no, intubation. She he was he was She said it looked like he had been down for awhile and that she had never seen anyone any bluer than he was.” “necessity exception” statements were offered under the (b). hearsay statutory §
the rule exceptions rule. OCGA 24-3-1 “The to the hearsay the admission of are not exhaustive and exclu- exception necessity’ sive all other cases. An will be allowed ‘from ‘necessity’ ‘particularized guarantees where of trustworthiness’ are established.”26 urges necessаry Milner’s because whether helps long intubation was difficult show how her husband had
been in cardiac arrest before he was discovered in that condition. allegedly beyond This in turn was material to whether Lewis was redemption life-threatening when discovered and his condition contrarily, should have been or, discovered earlier cardiac arrest had just timely. According occurred so the resuscitation was Emory’s expert: jaw tightly making “The was clenched it difficult for Again, my experience intubation very impor- to be dоne. that is a sign very early tant that one is in the resuscitation.” The con- extremely cluded quickly.” that Lewis’ cardiac arrest was “detected Emory argues the statements were not relevant because others witnessed these events. Before Milner arrived in room after Lewis’ 26 (Citations omitted.) (1993); McKissick v. Chrysler Corp. Davis, Motors 226 including personnel help medical arose, at least five other call for present. when she testified that One such witness one doctor were arrived, rigid, clenched, his head was his fists were Lewis was flung head and arched with his Another said he was stiff tilted back. back. teeth were rigid, seizing, arched, and his his back A third said he was during his several A nurse testified that clenched. jaw attempts This evidence Lewis, the was clenched. to resuscitate just arrest. had suffered the cardiac indicated that Lewis *6 hearsay exclusion of is whether the trial court’s The issue fitting necessity exception abuse of discre- is an as not evidence requires the evi- is abused law If the discretion tion.27 oppo- judge rules the excluded or admitted and thе dence to be doubtful Evidence of even site, this constitutes clear error.28 relevance should be admitted.29 necessity part satisfied if the evidence first of the rule is only (e.g., the unavailable the declarant is unavailable from some other source unattainable her), unique it; declarant has (e.g., it is to dead) If it contra- and, evidence, true of all it is relevant.30 as is testimony, Declarant here, it is relevant.31 dicts other witnesses’ meet these criteria. Milner’s statements part to the rule is that the evidence must be shown
The second
trustworthy,
degree
to warrant
a threshold
of trustworthiness
be
admissibility
degree
although
credibil-
not to the ultimate
achieve
Emory argues
ity
mony may
jury.
Tom
testi-
with the
that Todd’s and
Lewis’
Any
subject
biased,
be
but
cross-examination.
merely go
question regarding
their interest in the case “should
credibility
admissibility
witness,
the declarant’s
not to the
statement.”32
statement, “the mere
As to the trustworthiness of the declarant’s
admis-
fact that a witness is dead does not render his declarations
although,
cir-
sible,
if in addition to the death of a witness therе are
hearsay
verity
declarations,
cumstances which
to his
attribute
permit
relaxed to
admission of
rule
such
declaration.”33
27
(415
467) (1992).
White,
168,
v.
262
169
SE2d
See White
Ga.
28
(290
71) (1982) (whether
State,
223,
249 Ga.
SE2d
evidence is
See Andrews v.
227-228
judge,”
involves “the discernment of the trial
whose determination will not be
admissible
erroneous”).
“clearly
disturbed unless it is
29
362)
(1997).
Irvin,
760,
Ga. Power Co. v.
See,
267 Ga.
766
SE2d
(493
169)
State,
(1997);
State,
e.g., Hayes v.
v.
The fact that the statements contradict the other
does
reliability. Emory
inconsistency
eliminate their
contends such an
indicates a lack
support
of trustworthiness. The cases cited in
691) (1970), quoted
approval
Swain,
supra,
with
Because declarant’s introduce the deceased allowed to Lewis should be Mrs. jury, on the of others the recollections to the to counter statements scene and opinions Emory’s respect experts their concern- significance. ing length and its arrest and intubation of time between Emory’s attorney litigation, counsel sent a letter to Before the 3. summarizing her care husband’s information for Mrs. Lewis attempts hospital’s “As stated further: him. The letter to save and the summary being pro- discussed, confirm that we also vided will not bе this will litigation only purposes, ensue, it informational should for any purpose, by party direct whether as used either impeachment, After cross-examination, etc.”37 suit was evidence, Emory provided copy Ornato, one of letter to Dr. James filed, its analysis part experts, the case. it as a of his and he reviewed jury, During deposition read to the but trial, Dr. Ornato’s deposition objection portion of the to the the court sustained where Lewis’ attorney the letter. Lewis Ornato about cross-examined Emory аny right rely on erred waived contends the because agreement is entitled to cross- not to use the letter expert opinion. the factual basis for his examine an on ruling. right of its “The The trial court did not state basis belong every party thorough sifting shall cross-examination Supreme Court has to the witnesses called written: “a him.”38And as the may opinion not with- who relies a witness’ forming opin- upon in hold from the the facts that are relied [cits]. ion, upon Furthermore, know all of the facts is entitled to brought opinion and the facts witnеss’ rests [Cits.]”39 out on cross-examination. agreement
By giving expert, the letter to its violated ground parties litigation. not to use it in the No valid between doing. agreement presented so to show that it did not waive allowing by Emory’s requires report Reliance on the using deposition reveals that cross-examine the letter.40The Ornato preju- Emory’s argument in a to use the letter that Lewis dicial manner is without merit. *8 36 839) (1991) (other (409 Mallory State, no rea than there was See SE2d trustworthiness); Abi-Sarkis, lie, Boehm v. son for the declarant there were no indicia of (438 410) (1990) (declarant testimony gave about the App. inconsistent 211 Ga. 181 SE2d facts). critical 37 (Emphasis original.) 38 OCGA 24-9-64. § 39 (396 492) (1990); State, 445, also cases cited therein. see Eason v. 260 Ga. 446 SE2d 40 65) (1989) (reversible 759, State, error Jimmerson v. 761 based). jury opinion is
to withhold from the facts on which relied 820 jury unfairly prejudiced
4. Lewis contends the was in favor of Emory because the on instructed the five occasions they guess speculate that could not to reach conclusion in the In two of the the court instructing case. instances was about requirement support that finding pro- must instance, fessional In one other the court negligence. instructing was that it could defendant find for the even if the cause of death Lewis’ matter was a of speculation. “ ‘It is fundamental rule in that Georgia instructions must and be read considered as whole in whether determining charge ”41 contained error. . In that repetition . .’ context the did cause Nevertheless, reversible error. the court should not set impartiality at risk on select emphasis parts the instructions.42 J., J., Judgment P. Pope, reversed. and concur Ruffin, specially. Pope, Presiding Judge, concurring specially. agree
I with opinion; Divisions I sepa- write with rately respect to Division 1. agree
I with the that majority sought damages because coverage excess there no reason primary to exclude St. Paul, carrier, as the from excess of the rule application from Atlanta 131) (1934). Cobb, Coach Co. v. Ga. 544 SE I Accordingly, that agree court erred failing qualify jury as to officers, employees, stockholders and stockholder Paul relativеs of St. Fire And, & Marine Insurance I Company. agree that the court’s post-verdict inquiry to the failed to incomplete substi- for voir tute dire.
I write separately respect majority’s suggestion requisite should gathered information be from jurors during voir dire without them that an informing company insurance is involved in the case. enlightened “[I]n this age, it can should presumed be that prospective jurors already liability realize that insurance cover- age likely present cases involving [medical malpractice claims]. Paynе, [Cits.]” Arp
(1998) J.,P. (Pope, concurring specially).
“I believe that the best be to approach would continue to qualify any prospective might any have with insurer, interested Cobb, as is mandated by Atlanta Coach Co. v. After such [supra]. qualification, however, to avoid any potential prejudice might arise from the qualification itself, pro- or the Roker v. 857) (1984) (“ Rodriquez, See Jackson v. ‘it error to again repeat again portion charge of a which is favorable to one more than ” determinative). other,’ charge but the as a whole is *9 that the I would recommend knowledge, common own jurors’ spective existence or instructions limiting give specific trial court not to be con- material and is case is not given lack of insurance App. Payne, case.” v. Arp a decision reaching sidered Vo, also Dalton v. J., See concurring specially). P. (Pope, at 842 (497 J., concurring spe- P. (Pope, 413, 414 cially). in this joins special Ruffin Judge to state that
I am authorized concurrence. Decided November 18, 1998 denied December
Reconsideration Allen, Bird, L. Associates, Q. Karin & William Q. Bird William Jr., for appellant. Dwyer, & J. Matthew Dwyer, Sapp, White Jr., Wheelеr, Sager, N. & Frederick Weinberg, Ansley Long, TV, Krawcheck, for Johnathan T. Hudgins J. M. Rajan, Anandhi S. appellee. al. v. RAY et FABRICS & FIBERS COMPANY AMOCO
A98A1632. (510 SE2d Andrews, Judge. Chief of Amoco Fabrics 3,1998, appeal we dismissed the
On November
(Amoco)
enumeration
failure to file a separate
&
Company
Fibers
Rule 22
Appeals
5-6-40 and Court
required by
of errors as
(a).1
OCGA §
of errors on November
Amoco filed a
enumeration
separate
of this dismissal.
filed its motion for reconsideration
and has
expect compliance
we do not condone this failure
Althоugh
Court,
light
to that motion and
of this
pursuant
the Rules
(510 SE2d
Corp.,
v. Gen. Motors Acceptance
Reeder
337) (1998) (whole court)
Williams,
and Leslie
130) (1998) (whole
court),
hereby
opinion
we
vacate our
following
3, 1998,
opinion.
and issue
November
Amoco alleg-
employees
action was filed
former
This class
meruit.
recovery
quantum
or, alternatively,
of contract
ing breach
vacation bene-
pay
of Amoco’s refusal
This
result
litigation
until Amoco sold
in 1992
period
for the
employees
fits to its former
they were
worked,
though
even
where
manufacturing
plant
411) (1971);
Crozier,
Windsor v. Southeast
See,
e.g.,
Crozier