Arp v. Payne , 230 Ga. App. 840 ( 1998 )

Pope, Presiding Judge,

concurring specially.

I concur in the holding reached by the majority in this case. I write separately, however, to express my disagreement with the contention found in footnote 2 of the majority opinion that in order to avoid potential prejudice the better approach to jury qualification in cases like this would be not to qualify prospective jurors regarding any relationship they might have with a specific insurer involved in a given case, but instead, only qualify them as to any financial interest they might have in the outcome of the case, as advocated by Judge Johnson in Byrd v. Daus, 218 Ga. App. 145 (1) (460 SE2d 819) (1995), and Judge Beasley in her special concurrence in Franklin v. Tackett, 209 Ga. App. 448 (433 SE2d 710) (1993).

As set forth in my special concurrence in Dalton v. Vo, 230 Ga. App. 413 (497 SE2d 245) (1998), in this enlightened age, it can and should be presumed that prospective jurors already realize that liability insurance coverage is likely to be present in cases involving motor vehicle accidents. See Smith v. Crump, 223 Ga. App. 52, 55-56 (476 SE2d 817) (1996); Dubose v. Ross, 222 Ga. App. 99, 100-101 (473 SE2d 179) (1996). Therefore, I do not believe the approach advocated in footnote 2 would have any significant effect in reducing the potential for prejudice about which the majority is concerned. Moreover, as fully set forth in Crump, failing to qualify prospective jurors regarding any relationship they might have with a specific insurer having an interest in the outcome of a case, itself, poses its own risk to the right of trial by an impartial jury. 223 Ga. App. at 55-56.

Decided February 27, 1998 L. Cleveland Burton, Keith Williams, for appellants. Downey & Cleveland, Joseph C. Parker, Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, for appellee.

Consequently, I believe that the best approach would be to continue to qualify prospective jurors about any relationship they might have with any interested insurer, as is mandated by Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934). After such qualification, however, to avoid any potential prejudice that might arise from the qualification itself, or the prospective jurors’ own common knowledge, I would recommend that the trial court give specific limiting instructions that the existence or lack of insurance in a given case is not material and is not to be considered in reaching a decision in the case.

I am authorized to state that Judge Blackburn joins in this special concurrence.