Ford Motor Co. v. Conley

FINAL COPY
294 Ga. 530S13A1601. FORD MOTOR COMPANY v. CONLEY et al.
NAHMIAS, Justice.
In December 2007, appellees Jordan and Renee Conley filed a product
liability lawsuit against appellant Ford Motor Company in the State Court of
Cobb County, based on a single-vehicle rollover accident that occurred in April
2006.1 After nearly two years of pretrial discovery and motions practice, the
case went to trial on November 9, 2009. The jury, which was not qualified as
to relationships with any of Ford’s insurers, returned a verdict in favor of Ford
on November 19. The trial court entered judgment on the verdict on November
30, 2009, and the Conleys did not file an appeal.
Based on information about Ford’s insurers that came to light more than
a year later, however, the Conleys filed a motion for new trial on July 15, 2011.
On January 5, 2012, the trial court granted that motion. Ford filed an
application for interlocutory appeal, which the Court of Appeals granted. The
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Renee Conley brought the lawsuit as the next friend of Jordan Conley, her minor child who
was severely injured in the accident, and as the survivor of her mother, Martha Pendleton, a
passenger who died in the accident.
Court of Appeals judges divided evenly on the disposition of the appeal, so the
case was transferred to this Court for decision. See Ga. Const. of 1983, Art. VI,
Sec. V, Par. V (“In the event of an equal division of the Judges [of the Court of
Appeals] when sitting as a body, the case shall be immediately transferred to the
Supreme Court.”). We heard oral arguments on September 21, 2013, and now,
after careful consideration of the record and the contentions of the parties, we
affirm the judgment of the trial court. In doing so, we reiterate the high hurdles
that must be surmounted before an untimely, “extraordinary” motion for new
trial may be granted, but we conclude that the trial court did not abuse its
discretion in ruling that the Conleys met that burden under the particular
circumstances of this case.
1. Factual and Procedural Background
(a) The Original Conley v. Ford Motor Company Proceeding
On December 7, 2007, in their first set of interrogatories during discovery
in the original proceeding, the Conleys requested information about Ford’s
insurers. There is no dispute that this was an appropriate topic for pretrial
discovery. Georgia’s civil discovery statute specifically says:
A party may obtain discovery of the existence and contents of
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any insurance agreement under which any person carrying on an
insurance business may be liable to satisfy part or all of a judgment
which may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment. . . .
OCGA § 9-11-26 (b) (2). In addition, under longstanding Georgia law, a
plaintiff is entitled to obtain information about insurers who may cover a
judgment against the defendant in order to determine whether the trial jury
should be qualified as to relationships with such insurers. See OCGA §
15-12-135 (a) (requiring the disqualification of all trial jurors who are “related
by consanguinity or affinity to any party interested in the result of the case”);
Shipman v. Johnson, 89 Ga. App. 620, 622 (80 SE2d 717) (1954) (“It is well
settled that stockholders of an insurance company which carries liability
insurance indemnifying a party to an action from a judgment against it in that
case are ‘interested in the result of the case’ and not qualified to serve as
jurors . . . .”).
The insurance interrogatory that the Conleys posed, and Ford’s answer in
response, were as follows:
5. Please state whether or not Ford carried casualty or
liability insurance to insure against the Subject Incident, [sic] if
Ford carried casualty and/or liability insurance, please state for each
coverage:
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(a) The full name of the insuring company;
(b) The policy limits;
(c) The effective date of the policy; and
(d) The issuing agent.
ANSWER:
Subject to and without waiving its objections, Ford states it
has sufficient resources to cover any judgment which could be
reasonably rendered in this case, if any.
Ford objects to this Interrogatory as it is overly broad and
seeks information that is irrelevant and not reasonably calculated to
lead to the discovery of admissible evidence. To the extent this
Interrogatory asks for more information, Ford objects as it seeks the
discovery of confidential or proprietary information or documents.
In their first set of document requests, also sent on December 7, 2007, the
Conleys similarly asked for Ford’s insurance information:
10. All insurance agreements or policies under which any
person or entity carrying on an insurance business may be liable to
satisfy part or all of a judgment which may be rendered in this
action or to indemnify or reimburse for payments made to satisfy
any judgment.
Ford’s response was essentially identical to its answer to Interrogatory No. 5:
Ford said that it had sufficient resources to cover any reasonable judgment and
then objected in the same way to the document request. Indeed, Ford objected,
in the same sort of imprecise and formulaic manner, to almost all of the
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Conleys’ discovery requests: 37 of Ford’s 40 interrogatory answers contained
objections, as did 68 of Ford’s 70 responses to document requests, although as
with Interrogatory No. 5 and Document Request No. 10, many of the discovery
responses that included objections also included information that, to varying
degrees, appeared to satisfy the request.
After receiving Ford’s responses, the Conleys sent Ford a letter pursuant
to Uniform Superior Court Rule 6.4 (B) on March 11, 2008.2 The letter
identified Interrogatory No. 5, among many others, as requiring further answer:
We specifically ask that Ford withdraw all general objections
that it incorporates into each interrogatory. Ford has basically
lodged an objection to each interrogatory.
Plaintiff also specifically requests that Ford withdraw
objections to the following interrogatories and answer each within
the scope of all vehicles for which information is requested,
including Lincoln Aviators:
Interrogatories 1-3, 12, 14-16, 19, 22, 25, 26, 31-34, 37-39.
With respect to the following interrogatories we request that you
2
The case was actually in state court, but Uniform Superior Court Rule 6.4 (B) is identical
to Uniform State Court Rule 6.4 (B). The rule says, in relevant part:
Prior to filing any motion seeking resolution of a discovery dispute, counsel
for the moving party shall confer with counsel for the opposing party in a good faith
effort to resolve the matters involved. At the time of filing the motion, counsel shall
also file a statement certifying that such conference has occurred and that the effort
to resolve by agreement the issues raised failed.
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withdraw the specific objections and answer the questions posed
instead of providing self-serving answers that do not respond to the
question posed. Additionally, Plaintiff requests that the responses
include all vehicles outlined in the specific questions, including
Lincoln Aviators.
Interrogatory 5-10, 12-15, 17 (as to all vehicles for which
information is sought), 18, 20, 21, 23 (with respect to number 23 –
Ford states that it will produce certain documents, please confirm
that these documents have been produced), 27-29, 36.
The Conleys’ letter similarly asked that Ford “withdraw specific objections,
respond to the requests as written, . . . and/or fully respond to the following:
Request for Production No. 3, 5-13, 15-20, 22-25, 27-47, 49, 51-53, 55, 56, 58-
63, 65.”
In response, Ford sent a letter to the Conleys on March 21, 2008, which
said:
Ford’s answers and objections to Plaintiff’s Interrogatories,
including interrogatory nos. 1-3, 5-10, 12-23, 25-29, 31-34, and 36-
39, are proper and appropriate under the Georgia Rules of Civil
Procedure. Accordingly, Ford maintains its answers and objections
to these requests. . . . In addition, your letter raises general, broad
complaints regarding Ford’s answers and objections but fails to
address particular interrogatories with the specific grounds for your
complaints. Such general, conclusory objections to Ford’s answers
do not provide Ford with sufficient information to meaningfully
respond to each listed interrogatory.
Ford’s letter included an essentially identical statement in response to the
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Conleys’ request that Ford withdraw its objections and provide full responses
to the document requests.
There was no further communication during discovery regarding Ford’s
insurance. The Conleys moved to compel Ford to respond to a few requests
made later in the discovery process, but they did not file a motion to compel as
to Interrogatory No. 5 or Document Request No. 10. Neither the Conleys nor
Ford listed on the pretrial order that jurors should be qualified based on Ford’s
insurers. The Conleys also did not request that jurors be qualified based on
Ford’s insurers during jury selection; the jury questionnaire did not include any
questions about potential jurors’ relationships with insurance companies; and
the trial court did not ask Ford about its insurers. The jury found in favor of
Ford; the court entered judgment on the defense verdict; and the Conleys did not
appeal.
(b) Young v. Ford Motor Company
On June 13, 2011, about 19 months after the judgment in the Conleys’
case was entered, the case of Young v. Ford Motor Company began trial in
Cobb County State Court before the same judge that had presided over the
Conleys’ case and with at least two of the same lawyers representing Ford.
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During discovery, the Youngs sent Ford two requests for insurance information,
much as the Conleys had done. Ford responded in much the same way, saying,
“Ford has sufficient resources to satisfy any judgment that reasonably could be
expected to be awarded as damages in this action, if any”; Ford’s responses in
Young did not, however, also include an objection. Like the Conleys, the
Youngs did not file a motion to compel further answers to its requests for
insurance information.
However, the Youngs proposed in their pretrial order that the jury be
qualified for relationships with American International Specialty Lines
Insurance Company, Lloyds of London, and any other insurer that would
provide coverage for Ford. It is unclear from the record where the Youngs got
the names of those two specific insurance carriers, but it appears that one of the
Youngs’ lawyers knew them from a case over which he had presided when he
was a state court judge and qualified a jury as to Ford’s insurers. In response,
Ford submitted its own pretrial order, which stated: “Ford objects to any
reference to an alleged insurer of Ford. Ford has sufficient resources to satisfy
any judgment that reasonably could be expected to be awarded as damages in
this action, if any.”
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At the end of the first full day of voir dire, the Youngs asked that Ford put
on the record that Ford was not insured by any companies that could cover a
potential judgment in the case, and the court made it clear that, to avoid a
mistrial, the jury would need to be qualified as to Ford’s insurers. Ford’s
counsel said that he had made inquiries over the preceding weekend and,
“consistent with our discovery responses here,” Ford had “no insurance that
would be applicable to satisfy a judgment in this case.” The next morning,
however, just before the parties began to strike the jury, Ford’s counsel reported
that Ford did, in fact, have numerous excess coverage insurance policies that
might cover a judgment.
The court then declared a mistrial and revoked the pro hac vice admission
of Ford’s attorneys on the grounds that they had violated Georgia Rules of
Professional Conduct Rules 3.3 (candor toward the tribunal) and 3.4 (fairness
to opposing party and counsel).3 The Youngs also moved to sanction Ford by
striking its answer to the complaint. After holding an evidentiary hearing on
3
The attorneys appealed, and the Court of Appeals vacated the revocation order and
remanded the case, holding that the trial court failed to give the attorneys notice and a meaningful
opportunity to be heard before deciding the revocation issue. See Ford Motor Co. v. Young, 322 Ga.
App. 348 (745 SE2d 299) (2013).
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June 20, 2011, the trial court decided that the appropriate sanction was to
instruct the jury that it was established that Ford “failed to adequately warn
consumers of the danger of a seatbelt during rollovers.” The Young case then
settled.
(c) The Conleys’ Motion for New Trial
Based on the information about Ford’s insurers that came to light during
the sanctions hearing in Young, the Conleys filed a motion for new trial on July
15, 2011, arguing that they were entitled to a new trial on the ground that the
jury that decided their case had not been properly qualified. After holding an
evidentiary hearing, the court granted a new trial on January 5, 2012, concluding
that by failing to disclose its insurance coverage, Ford had violated OCGA § 9-
11-26 (b) (2) and the court’s pretrial scheduling order, which required the
parties to comply with the Uniform State Court Rules in completing their
proposed pretrial orders.
Relying on testimony given in Young by Ford’s in-house counsel, the trial
court found that Ford has maintained insurance to cover product liability claims
like the Conleys’ since 1999 but, “as a general corporate practice, in all
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jurisdictions, does not disclose any insurance when responding to discovery.”4
The lawyer had testified that Ford did not respond to requests for insurance
information “as a matter of course,” explaining that “Ford has also had courts
say we don’t have to produce the information. . . . Where it is an issue and it’s
required, it has been produced.” The Ford lawyer added, “Insurance is rarely an
issue in most of the cases that we see where the requests have been asked. The
issue is, does Ford have sufficient assets to cover a judgment. When we respond
that we do, the issue rarely progresses [from] there.” The Youngs had also
presented evidence that Ford was aware that in Georgia courts, a jury is
supposed to be qualified as to insurers that may be liable for a judgment.
The trial court found that Ford’s concealment of its insurance coverage
from the Conleys was “willful” and “intentional” and excused the Conleys from
being required to request jury qualification with respect to Ford’s insurers in
order to preserve that issue for later challenge. The court concluded that the
Conleys “had no reason to know, or even suspect, that insurance coverage
4
At the motion for new trial hearing, the Conleys submitted as evidence the transcript of the
Young sanctions hearing, without objection from Ford. During that sanctions hearing, the Youngs
presented excerpts from the video deposition of Ford’s in-house lawyer who managed product
liability litigation and previously managed the discovery for all of Ford’s litigation nationwide.
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existed at the time of trial” and did not have the burden “to ferret out
information that was clearly required to be produced under Georgia law.”
Finally, citing Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934), the
court presumed that the Conleys had been harmed by Ford’s conduct, because
“under Georgia law, the harm is presumed when there is a failure to qualify a
jury as to a Defendant’s insurance carriers.”
(d) The Court of Appeals’ Opinions
At Ford’s request, the trial court certified its new trial order for immediate
review, and the Court of Appeals granted Ford’s application for interlocutory
appeal. See OCGA § 5-6-34 (b). However, the Court of Appeals then divided
equally on the disposition of the appeal.5
In concluding that the trial court’s judgment should be affirmed, Presiding
Judge Barnes’s opinion said that Ford’s responses to the Conleys’ insurance
questions
5
Five judges voted to reverse the trial court’s judgment, and a total of five judges voted to
affirm; Judges Miller and Dillard were disqualified. Although the unpublished opinions of Presiding
Judge Barnes (joined by Presiding Judge Doyle and Judge McFadden) and Presiding Judge Ellington
(joined by Chief Judge Phipps, Presiding Judge Barnes, and Judge McFadden) were both referred
to as “dissents” and referred to the opinion of Judge Boggs (joined by Presiding Judge Andrews and
Judges Ray, Branch, and McMillan) as the “majority,” the equal division of the court means that no
opinion was truly a majority or a dissent. For ease of reference, we will refer simply to the “Barnes
Opinion,” the “Ellington Opinion,” and the “Boggs Opinion.”
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could be interpreted by a reasonable attorney as stating that [Ford]
was self-insured, and the fact [that Ford] went on to include the
same boilerplate objections it made to virtually every interrogatory
and request to produce does not change the fact that the response
was misleading and excused the [Conleys] from filing a motion to
compel.
Barnes Op. at 3. The opinion added that the failure to qualify the jurors as to
Ford’s insurers required harm to the Conleys to be presumed under Atlanta
Coach, 178 Ga. at 551-552, and Smith v. Crump, 223 Ga. App. 52, 56 (476
SE2d 817) (1996). See Barnes Op. at 3. Emphasizing the deference owed to the
trial court’s fact finding and discretion in this context, the Barnes Opinion saw
no basis to reverse the new trial ruling. See id. at 3-4.
Reaching the same conclusion, Presiding Judge Ellington’s opinion
observed that
a party should not be able to ignore an opposing party’s objections
to its discovery requests, take its chances at trial, and then file a
motion for new trial at any time . . . . But, by equal measure, a party
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should not be able to refuse to respond fully and honestly to
discovery requests about its insurance coverage — where such
information is relevant and necessary to the selection of a properly
qualified jury — and also cloak the fact that it is refusing to provide
the information as Ford did . . . in this case.
Ellington Op. at 2-3 (footnote omitted). Both the Barnes and Ellington Opinions
also argued that the Court of Appeals should follow its recent decision in Reese
v. Ford Motor Co., 320 Ga. App. 78 (738 SE2d 301) (2013).6
In concluding that the trial court’s judgment should be reversed, Judge
Boggs’s opinion viewed Ford’s “arguably incomplete” discovery responses and
objections as placing the Conleys “on notice that Ford may have had at least
some insurance coverage applicable to [their] claim,” noting that the Conleys’
letter requesting that Ford lift the objections “indicates that [they were] aware
of the deficiencies in Ford’s answer and objection.” Boggs Op. at 8, 10. The
Boggs Opinion said that the trial court therefore erred in finding a
misrepresentation by Ford sufficient to excuse the requirements that the Conleys
pursue further discovery and object to the jury’s not being qualified as to Ford’s
6
In Reese, the trial court granted the plaintiffs’ extraordinary motion for new trial after
proceedings similar to those in this case. See id. at 81. The Court of Appeals affirmed that ruling,
holding that the trial court had not abused its discretion because Ford had “intentionally provided
misleading discovery responses, which resulted in the jury not being properly qualified.” Id. at
80-81. Ford’s petition for certiorari in Reese is pending before this Court. See Case No. S13C1019.
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insurers. See id. at 11.
Judge Boggs’s opinion also focused on the “stringent requirements for the
grant of an extraordinary motion for new trial,” arguing that Reese did not apply
those requirements and should be overruled. Boggs Op. at 11-12 (emphasis in
original). The Conleys did not satisfy those requirements, the Boggs Opinion
concludes, because they failed to exercise due diligence in identifying Ford’s
insurers and also showed no actual harm from the failure to qualify the jurors
as to those insurers, contending that Atlanta Coach’s presumption of harm
should not apply under these circumstances. See Boggs Op. at 14-15.
Because the Court of Appeals was equally divided, the case was
transferred to this Court for decision.
2. The Standard for Granting an Extraordinary Motion for New Trial
The core issues in this case are the alleged discovery violation involving
Ford’s responses to requests about its insurance coverage and the effect of that
alleged violation on the qualification of the jury that decided the Conleys’ case
at trial. Those issues are presented, however, in the context of an extraordinary
motion for new trial in a civil case — the Conleys’ effort to obtain a new trial
initiated many months after the entry of judgment against them. It is true, as the
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Conleys and the Barnes Opinion point out, that appellate courts must accord
substantial deference to a trial court’s decision on an extraordinary motion for
new trial. We review the trial court’s findings of fact under the clearly
erroneous standard, meaning that we must uphold a finding if there is any
evidence in the record to support it. See Singh v. Hammond, 292 Ga. 579, 581
(740 SE2d 126) (2013). And we review the trial court’s ultimate ruling on such
a motion only for abuse of discretion. See Smith v. Smith, 293 Ga. 563, 566
(748 SE2d 456) (2013); Tedoff v. B & L Service Co., 167 Ga. App. 452, 452
(306 SE2d 719) (1983).7 However, that discretion is not unfettered. As always,
the trial court’s discretion must be exercised in conformity with the governing
legal principles, and the facts that the court must find and that we must evaluate
on appeal are those relevant to determining whether the legal requirements were
satisfied. See State v. Pickett, 288 Ga. 674, 679 (706 SE2d 561) (2011) (“If the
7
In its amicus curiae brief in support of Ford, the Georgia Chamber of Commerce argues
that we should apply the de novo standard of review because the new trial grant in this case was
based on a “special ground” rather than the “general grounds.” See Stevens v. Wright Contracting
Co., 92 Ga. App. 373, 378-379 (88 SE2d 511) (1955) (treating the failure to qualify the jury as to
an insurer as a “special ground”). But special grounds are properly reviewed de novo only when they
involve pure questions of law. See O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009) (holding
that we review “special grounds involving a question of law . . . de novo and reverse if the trial court
committed legal error” (citation omitted; emphasis added)). The Conleys’ motion did not present
a pure question of law, but rather a mixed question of law and fact to which the abuse of discretion
standard applies.
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trial court significantly misapplies the law or clearly errs in a material factual
finding, the trial court’s exercise of discretion can be affirmed only if the
appellate court can conclude that, had the trial court used the correct facts and
legal analysis, it would have had no discretion to reach a different judgment.”).
Thus, it is appropriate to begin with a discussion of the fundamental
requirements that apply in the procedural posture of this case.
The Georgia Code draws a distinction between timely, or ordinary,
motions for new trial and untimely, or extraordinary, motions for new trial. The
statute generally authorizing motions for new trial says: “All motions for new
trial, except in extraordinary cases, shall be made within 30 days of the entry of
the judgment on the verdict or entry of the judgment where the case was tried
without a jury.” OCGA § 5-5-40 (a) (emphasis added). Extraordinary motions
for new trial are permitted only in limited circumstances. The next section of
the Code specifies that “[w]hen a motion for a new trial is made after the
expiration of a 30 day period from the entry of judgment, some good reason
must be shown why the motion was not made during such period, which reason
shall be judged by the court.” OCGA § 5-5-41 (a) (emphasis added). Thus,
when a motion for new trial is untimely, before considering the merits of the
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motion, the court must determine if the delay in filing the motion should be
excused by good cause.
Untimely efforts to obtain a new trial have long been disfavored by the
law because they work to undermine the finality of judgments and the reliance
that litigants are normally entitled to place on final decisions rendered in our
courts. See Roddenbery v. Roddenbery, 255 Ga. 715, 717 (342 SE2d 464)
(1986) (“Extraordinary motions for a new trial are not favored, and a stricter
rule is applied to an extraordinary motion for a new trial based on the ground of
newly available evidence than to an ordinary motion on that ground.” (citations
and punctuation omitted)). Accordingly, re-opening judgments in this manner
should not be commonplace, but rather is warranted only in truly
“extraordinary” circumstances. See Usry v. Cato, 170 Ga. 358, 359 (153 SE 23)
(1930) (discussing with approval the trial court’s statement that “[a]n
extraordinary motion [for new trial] should be granted within the meaning of the
word itself, something extraordinary, something unusual, something which
entered into the trial of the case and which was not discovered and could not
have been discovered [earlier]”). See also Harris v. Hull, 70 Ga. 831, 838-839
(1883) (“It is certainly to the interest of parties, as well as the public, that there
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should be an end of litigation. . . . Litigation should never be protracted where
this, with due regard to the rights of parties, can possibly be avoided. Interest
rei publicæ ut sit finis litium[8] is a maxim so old that its origin is hidden in a
remote antiquity, and the policy which it inculcates is so essential as not to
admit of question or dispute.”).
Except for the requirement in OCGA § 5-5-41 (a) that the moving party
show a “good reason” for not seeking a new trial within 30 days of the
judgment, the requirements for extraordinary motions for new trial are not
specified by statute but instead are the product of case law that draws on the
statutory requirements for ordinary motions for new trial. See Drane v. State,
291 Ga. 298, 300 (728 SE2d 679) (2012). Both Ford and its amicus discuss the
six-part test set forth by this Court for the grant of an extraordinary motion for
new trial based on the alleged post-trial discovery of new evidence.9 However,
8
Interest rei publicæ ut sit finis litium is Latin for “it concerns the state that there be an end
to lawsuits.” Black’s Law Dictionary 730 (5th ed. 1979).
9
The six requirements that must all be met before a motion brought on this ground can
succeed are well settled: the moving party must show (1) that the newly discovered evidence has
come to his knowledge since trial; (2) that want of due diligence was not the reason the evidence was
not acquired sooner; (3) that the evidence was so material it would probably produce a different
verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the
motion or its absence accounted for; and (6) that the new evidence does not operate solely to
impeach the credibility of a witness. See, e.g., Smith, 293 Ga. at 566; Drane, 291 Ga. at 300. See
also OCGA § 5-5-23 (“A new trial may be granted in any case where any material evidence, not
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“‘the late filing of a motion for new trial may also be predicated on
circumstances other than newly discovered evidence.’” Fowler Properties, Inc.
v. Dowland, 282 Ga. 76, 79 (646 SE2d 197) (2007) (citation omitted). See also
OCGA § 5-5-25 (“In all motions for a new trial on other grounds not provided
for in this Code, the presiding judge must exercise a sound legal discretion in
granting or refusing the same according to the provisions of the common law
and practice of the courts.”).
The Conleys’ motion was based on information that they discovered about
Ford’s insurers after trial, but that is not the type of newly discovered evidence
contemplated by the cases cited by Ford and its amicus, because it is not
evidence related to witnesses and exhibits that allegedly should have been
considered by the jury in reaching its verdict. Instead, the new evidence here
implicates the Conleys’ right to a “competent and impartial jury,” Atlanta
Coach, 178 Ga. at 549, by calling into question the jury’s qualification to decide
the case at all.
Thus, the trial court was not required to apply the test used in cases
merely cumulative or impeaching in its character but relating to new and material facts, is discovered
by the applicant after the rendition of a verdict against him and is brought to the notice of the court
within the time allowed by law for entertaining a motion for a new trial.”).
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dealing with newly discovered trial evidence, but it was not free to exercise its
discretion without constraint. Any party making an extraordinary motion for
new trial must meet two fundamental requirements. First, regardless of the basis
for an extraordinary motion for new trial, OCGA § 5-5-41 (a) requires the
moving party to show a “good reason” why the motion was not filed during the
30-day period after the entry of judgment. Good reason exists only where the
moving party exercised due diligence but, due to circumstances beyond its
control, was unable previously to discover the basis for the claim it now asserts.
See Harper v. Mayes, 210 Ga. 183, 183 (78 SE2d 490) (1953) (“[The]
extraordinary state of facts must have been unknown to the movant or his
counsel at the time when an ordinary motion for a new trial could have been
filed, and impossible. . . to [have been] ascertain[ed] by the exercise of proper
diligence for that purpose.”). Compare Martin v. Children’s Sesame, Inc., 188
Ga. App. 242, 242 (372 SE2d 648) (1988) (holding that “good reason” existed
where the plaintiffs filed their motion for new trial five days late because the
clerk’s office twice informed them that the judgment had been entered five days
after it actually was entered), with Mize v. Regions Bank, 265 Ga. App. 635,
636 (595 SE2d 324) (2004) (affirming the denial of an extraordinary motion for
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new trial where the moving party’s mistake in reading the date on an order was
“entirely attributable to . . . himself”).
Second, before any motion for new trial — timely or untimely — may
be granted, the moving party must show that the error alleged as the basis for the
motion was materially harmful. See OCGA § 9-11-61 (“The court at every
stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”); Atlanta Coach, 178
Ga. at 551 (“This court has several times stated that in order to reverse a
judgment both error and injury must affirmatively appear . . . .”); Eberhardt v.
Bennett, 163 Ga. 796, 803 (137 SE 64) (1927) (“[I]t is not every error which
will warrant the grant of a new trial. To warrant a new trial there must be
substantial error, the withholding from a party of a substantial right, which
harms him by depriving him of something to which he was entitled in the
exercise of his right to a fair and lawful trial.”). If the error alleged was not
materially prejudicial — if the party was not thereby deprived of a fair trial –
then there is no justification for requiring another trial of the same case.
Several decisions of the Court of Appeals demonstrate the application of
these two requirements. For example, in Jones v. Cooke, 169 Ga. App. 516 (313
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SE2d 773) (1984), the trial court entered a default judgment against the
defendant that exceeded the amount the plaintiff had prayed for, which was a
violation of OCGA § 9-11-54 (c) (1), and the defendant did not get notice of the
judgment until four months after it was entered. See Jones, 169 Ga. App. at
516-517. The Court of Appeals reversed the denial of the defendant’s
extraordinary motion for new trial, explaining that he “had both an excuse for
delay in filing his motion . . . and also a sufficient ground to set aside the verdict
and judgment.” Id. at 517. In Union Life Ins. Co. v. Aaronson, 109 Ga. App.
384 (136 SE2d 142) (1964), the plaintiff told the defendant that it had requested
and received a continuance from the court to allow for settlement negotiations,
but the plaintiff did not actually request a continuance, went to trial, and, in the
absence of the defendant, introduced evidence and obtained a verdict and
judgment in its favor. See id. After the judgment, the plaintiff continued to tell
the defendant that it was open to settlement; the defendant learned of the
judgment only when a levy was made on his property. See id. The Court of
Appeals held that those facts “constitute (a) an excuse for delay in filing so as
to authorize the trial judge to entertain and hear the delayed motion [for new
trial], and (b) a sufficient ground to set aside the verdict and judgment.” Id.23
In sum, the two basic requirements that the trial court must find to be
established before granting any extraordinary motion for new trial are that the
error the moving party now asserts (1) could not have been discovered and
raised in a timely manner if the party had acted with due diligence and (2)
materially harmed the party.
3. The Conleys’ Extraordinary Motion for New Trial
We now consider whether the trial court properly determined that the
Conleys met the due diligence and material harm requirements for an
extraordinary motion for new trial on the jury qualification ground they raised.
(a) Due Diligence
It is undisputed that the Conleys actually learned that Ford had insurers
who could have provided coverage for their case only after Ford’s insurance
information was revealed during the Young proceedings. The Conleys then
promptly sought a new trial, claiming that the jury in their case should have
been qualified as to Ford’s insurers. But the Conleys filed their motion for new
trial more than a year after trial, after the jury returned its verdict in favor of
Ford, and after the judgment was entered, making it an extraordinary motion.
Ford contends that the Conleys could have learned about Ford’s insurers
24
before trial had they exercised due diligence in discovery. As a result, Ford
argues, the Conleys waived their right to seek jury qualification as to the
insurers at trial and also cannot justify the untimeliness of their motion for new
trial. Ford relies on cases like Patterson Bank v. Gunter, 263 Ga. App. 424 (588
SE2d 270) (2003), which held that, “[a]fter verdict, a litigant cannot obtain a
new trial by reason of the fact that a juror is disqualified by relationship, unless
the litigant can show that before the verdict it and its counsel did not know of
the relationship and could not have discovered the relationship by the exercise
of ordinary diligence.” Id. The trial court, however, found that the Conleys’
failure to discover the insurer information earlier was not their fault, but rather
was the result of Ford’s having intentionally misled the Conleys into believing
that Ford had no insurers. That finding is supported by the record.
(1) Ford’s Misleading Substantive Discovery Responses
During the trial proceedings, the Conleys did not overlook the issue of
Ford’s insurers. In their very first set of interrogatories and document requests,
the Conleys asked Ford specifically for information about insurers that could
provide coverage for their case, and they asked for that information in discovery
requests that were reasonably precise, straightforward, and unambiguous. That
25
was information the Conleys were entitled to obtain under OCGA § 9-11-26 (b)
(2), as well as information the Conleys would need to seek qualification of
potential jurors under OCGA § 15-12-135 (a) based on relationships with
insurance companies that could be liable to pay damages the jury awarded. It
is now undisputed that Ford in fact had at least six such insurers. Rather than
simply and truthfully providing that information, however, the substantive
portion of Ford’s answers to the Conleys’ discovery requests was as follows:
“Ford states it has sufficient resources to cover any judgment which could be
reasonably rendered in this case, if any.” In context, that statement could
reasonably be understood as an assertion that Ford was self-insured and did not
have any insurers who could be liable for a judgment in this case.
The record also shows that Ford intended its substantive responses to be
understood in this way. In the Young case, Ford offered an almost identical
substantive discovery response: “Ford has sufficient resources to satisfy any
judgment that reasonably could be expected to be awarded as damages in this
action, if any.” And Ford’s attorney (one of the same lawyers as in this case)
told the trial court (the same judge as in this case) that this response meant that
Ford had no insurers who could be liable for a judgment, saying that “consistent
26
with our discovery responses . . . there is no insurance that would be applicable
to satisfy a judgment in this case.” Ford had also said that it had “sufficient
resources to satisfy any [reasonable] judgment” as its reason for objecting to the
Youngs’ pretrial order requesting qualification of jurors as to Ford’s insurers.10
(2) Ford’s Objections
But Ford’s substantive responses did not stand alone in this case, as they
did in Young. As Ford and the Boggs Opinion emphasize, the substantive
portion of the response to both Interrogatory No. 5 and Document Request No.
10 was preceded by the phrase, “[s]ubject to and without waiving [Ford’s]
objections,” and was followed by objections on the ground that the request was
“overly broad,” sought “irrelevant” information, and, to the extent it asked for
more information than Ford was providing, sought “confidential or proprietary”
information. Judge Boggs’s opinion concluded that these objections placed the
Conleys “on notice that Ford may have had at least some insurance coverage.”
Boggs Op. at 10. Ford’s objections do make this a more complicated case, but
10
It is worth noting that the trial judge in Reese – a different judge than in this case and
Young – interpreted an almost identical discovery response by Ford “as meaning that Ford was
entirely self-insured” and similarly found that the response was “designed to be misleading.” Reese,
320 Ga. App. at 80.
27
they do not alter our conclusion as to how Ford’s answers could reasonably be
interpreted.
If Ford had simply denied the existence of insurance without objection,
this would be an easy case for the Conleys to show due diligence. Where a party
simply answers a discovery request, the requesting party is entitled to believe
the answer. Due diligence does not require the requesting party to disbelieve the
substantive answers an opposing party has provided in discovery, nor must the
requesting party file a motion to compel and then show non-compliance with an
order to compel before the trial court can sanction the responding party for its
discovery abuse, as must be done if the responding party refuses to answer the
request at all. See OCGA § 9-11-37; MARTA v. Doe, 292 Ga. App. 532, 537
(664 SE2d 893) (2008) (“‘To condone [false or erroneous responses] would
force parties to assume the falsity of every sworn interrogatory response and file
endless motions preserving their right to relief.’” (citation omitted)). As our
Court of Appeals has cogently explained, in accord with the position of courts
nationwide:
An interrogatory answer that falsely denies the existence of
discoverable information is not exactly equivalent to no response.
It is worse than no response. When there is no response to an
28
interrogatory or the response is devoid of content, the party serving
the interrogatory at least knows that it has not received an answer.
It can move the court for an order to compel a response. . . . If the
response is false, however, the party serving the interrogatory may
never learn that it has not really received the answer to the
interrogatory. . . .
Id. at 536 (citation omitted; emphasis in original).
On the other hand, if Ford had responded to the Conleys’ insurance
inquiries only with its objections, instead of with answers qualified by the
objections, this would be an easy case in Ford’s favor, as the Conleys would not
be heard to complain now that Ford led them to believe that it had no insurers.
If a party responds to a discovery request simply with objections to the request,
the requesting party is given no substantive answer at all. In this situation, the
law is clear: if the requesting party wants an answer upon which it can rely (or
sanctions for the failure to provide such an answer), it must file a motion to
compel, obtain an order from the court compelling an answer, and then seek
sanctions if the responding party still refuses to comply. See OCGA § 9-11-37;
Strejc v. MARTA, 197 Ga. App. 88, 89 (397 SE2d 501) (1990).
Because Ford coupled its substantive answers with objections, this case
does not fall neatly into either of these easier scenarios. The trial court
29
reasonably concluded, however, that even with the objections, Ford’s answers
were misleading. The Conleys were not required to read Ford’s objections as
a distinct refusal to say whether or not Ford carried insurance to cover the
Conleys’ claim, because the substantive responses that Ford provided could
reasonably be understood to indicate that the company was self-insured.
Moreover, the objections asserted by Ford suggest this understanding of the
substantive responses. If Ford carried insurance policies, Ford could not
reasonably refuse entirely to provide any information about them, in light of
OCGA §§ 9-11-26 (b) (2) and 15-12-135 (a). Moreover, the objections that any
further information about which resources Ford would use to cover a judgment
was irrelevant, proprietary, or confidential are difficult to understand with
respect to, for instance, the identity of a third-party insurer. Such objections
would make much more sense if Ford were truly self-insured. Thus, the
Conleys, and the trial court, could read Ford’s discovery responses, as a whole,
as asserting that Ford was self-insured and would not look to any insurance
policy to cover a judgment in this case. The Conleys, having no reason to
suspect those responses were false, were not obliged to question them or to seek
different responses. The Conleys asked; Ford answered; and the Conleys were
30
entitled to rely upon those answers as truthful, rather than going to the trial court
to compel Ford to answer again.
(3) The Conleys’ Understanding of Ford’s Responses
Even if the Conleys could reasonably (objectively) read Ford’s discovery
responses as indicating, misleadingly, that Ford had no insurers, if the Conleys
actually (subjectively) believed that Ford was non-responsive on the insurance
issue, they would not be entitled to a new trial. If that were the case, due
diligence would have obliged the Conleys to move to compel Ford to properly
answer the requests. See Strejc, 197 Ga. App. at 89. Ford contends that the
Conleys’ understanding that the responses to Interrogatory No. 10 and
Document Request No. 5 were evasive or incomplete, rather than misleading,
is demonstrated by the March 1, 2008 letter the Conleys sent to Ford
complaining about the company’s responses to the initial set of discovery
requests. That letter is Ford’s best piece of evidence, but it does not compel a
different conclusion than the trial court reached.
The Conleys’ March 2008 letter, which was sent about six weeks after
receiving Ford’s responses, was not focused on the interrogatory and document
request seeking insurance information. Instead, the letter asked Ford to
31
“withdraw all general objections that it incorporates into each interrogatory,”
noting that “Ford has basically lodged an objection to each interrogatory.” The
letter also asked Ford to “withdraw the specific objections and answer the
questions posed instead of providing self-serving answers that do not respond
to the question posed” for 19 interrogatories (including No. 5), and further
requested that Ford withdraw its objections to and answer 15 other
interrogatories for all vehicles, meaning that the Conleys requested answers
without objections for 34 of the 37 interrogatories to which Ford had objected.
Finally, the letter requested that Ford “withdraw specific objections, respond to
the requests as written, . . . and/or fully respond to” 54 of the 68 document
requests to which Ford had objected (including No. 10).
Thus, the Conleys’ letter was not directed at the two discovery requests
regarding insurance, but rather was a broadside complaint about Ford’s
objection-laden responses, which essentially asked Ford to review the initial set
of discovery requests again and to answer the questions without the blunderbuss
objections. Indeed, Ford acknowledged the unfocused nature of the Conleys’
letter in its March 21 reply, which said the Conleys had raised “general, broad
complaints regarding Ford’s answers and objections but fail[ed] to address
32
particular interrogatories with the specific grounds for [their] complaints.” As
time went on and the Conleys focused more precisely on the initial responses
that Ford had provided, the Conleys could reasonably conclude, for the reasons
discussed previously, that Ford had asserted that it was self-insured and that no
further information about such self-insurance was required.
To support the argument that the Conleys did not diligently pursue
insurance information, Ford also points out that the Conleys filed three motions
to compel other information sought in discovery. Those three motions, which
were filed much later in the pretrial period, show that the Conleys knew how to
seek to compel discovery. But the motions do not indicate that the Conleys
were ferreting out misinformation provided by Ford and demanding that it be
corrected, much less that the Conleys knew that Ford’s initial answers regarding
its insurance coverage — as the Conleys reasonably understood those answers
— were incomplete or untrue. None of the motions sought to compel further
responses to the Conleys’ initial interrogatories and document requests; they
instead addressed subsequent discovery items that Ford had unambiguously
33
refused to produce and questions Ford had squarely refused to answer.11
(4) Deference to the Trial Court
The trial court’s finding that Ford’s discovery responses intentionally
misled the Conleys into actually and reasonably believing that Ford had no
insurers is entitled to substantial deference on appeal. Unlike this Court or the
Court of Appeals, the trial court directly supervised the ebb and flow of the
discovery and trial process in this case and had the opportunity to observe and
assess the conduct, demeanor, and credibility of the parties and their counsel
throughout the proceedings, as well as the witnesses presented on this specific
issue at the motion for new trial hearing. See Singh, 292 Ga. at 581 (“‘[T]his
Court properly gives due deference to the opportunity of the trial court to judge
the credibility of the witnesses.’” (citations omitted)); Resource Life Ins. Co. v.
Buckner, 304 Ga. App. 719, 734 (698 SE2d 19) (2010) (“‘[T]rial judges,
through their direct involvement with the case, the parties, and the attorneys, and
their familiarity with the actions of the parties in the conduct of discovery in
11
The first motion sought to compel the depositions of two engineers to which Ford had
consistently objected. The second motion sought to compel Ford’s answers to the Conleys’ third set
of interrogatories and twelfth set of document requests after Ford “stated unequivocally that it will
not be answering any of this discovery” on the ground that it was untimely. The final motion sought
to compel video clips and test protocols that Ford had repeatedly failed to produce.
34
similar cases that are properly brought to their attention, are in the best position
to evaluate the parties’ conduct and to determine the appropriate level of
[discovery] sanctions.’” (citation omitted)); Santora v. American Combustion,
Inc., 225 Ga. App. 771, 772 (485 SE2d 34) (1997) (“In determining whether a
party has abused discovery, the trial court sits as trier of fact, and this Court will
uphold a finding of wilful discovery abuse if there is any evidence to support
it.”).
Ford maintains that the trial court’s involvement in the Young case
impermissibly colored its decision in this case and the court “conflated the two
proceedings.” It is true that the trial court found that Ford’s discovery responses
were intentionally misleading based in large part on the deposition testimony of
Ford’s in-house lawyer introduced during the sanctions hearing held in Young.
But the court was entitled to consider that evidence, because the Conleys
admitted the transcript of the Young hearing at the motion for new trial hearing
in this case without objection by Ford.
Ford further claims that the trial court failed to consider that in this case,
unlike in Young, Ford objected to the requests for insurance information. In
fact, the court specifically acknowledged Ford’s argument that the Conleys
35
should have known that the company had insurance “based upon Ford’s
objections to Plaintiffs’ discovery requests seeking disclosure of insurance
information.” The court simply did not find those objections sufficient to put
the Conleys on notice that Ford might have insurers — a finding with which we
agree, as discussed previously, because the objections were made alongside
substantive answers that reasonably could be read to indicate that Ford was self-
insured, and indeed, the objections could be understood to suggest that very
reading of the substantive answers.
Ford also quarrels with the trial court’s statement that Ford’s in-house
counsel testified to “a general corporate practice” of not disclosing insurance
information in discovery, asserting that “[t]he actual testimony was that Ford
had produced insurance information where Ford’s objections had been
overruled.” But Ford’s lawyer testified that insurance information “isn’t
produced as a matter of course in our cases,” indicating that the general practice
of the corporation was to refuse to provide insurance information when first
requested even in states, like Georgia, where such information should be
disclosed if requested. The trial court’s statement was therefore a fair
characterization of the evidence.
36
As indicated by the equal division of the Court of Appeals, whether the
Conleys exercised due diligence in this case is a pretty close question, and the
trial court could have reached a different conclusion, to which we likely also
would have deferred. But the conclusion the trial court reached is supported by
the record viewed as a whole. Ford’s responses to the Conleys’ initial discovery
requests for insurance information affirmatively misled the Conleys into actually
and reasonably believing that Ford was entirely self-insured for any judgment
in their case, and the Conleys therefore did not fail to act with due diligence in
not moving to compel further responses from Ford, in not asking the trial court
to qualify the prospective jurors as to insurers that Ford had failed to identify,
and in not moving for a new trial until after the truth about Ford’s insurers was
revealed during the subsequent Young litigation. See Aaronson, 109 Ga. App.
at 384 (finding good cause for the untimely filing of a motion for new trial
where the movant failed to present evidence at trial because he was misled by
the other party into believing that the trial had not yet happened). Accordingly,
the Conleys did not waive their right to qualify the jury as to Ford’s insurers that
may have been liable for a judgment, and the Conleys have met the due
diligence requirement for the grant of an extraordinary motion for new trial.
37
(b) Material Harm
To obtain a new trial, in addition to showing that they had good reason for
the late filing of their motion for new trial, the Conleys were required to show
that the error they identified caused them material harm. This is usually a
difficult showing to make, but it is not for the particular claim that the Conleys
presented, as the trial court correctly held. When the error is the failure to
qualify the jurors in a civil trial as to their relationship with the defendant’s
insurers that may be liable for a judgment, then after the verdict is returned,
harm must be presumed.
Ford’s in-house counsel testified that the company routinely answered
discovery requests for insurance information by saying that Ford had sufficient
resources to cover any reasonable judgment, and that opposing parties generally
found that response sufficient. Ford may be right that such an answer is
sufficient to satisfy the main purpose of OCGA § 9-11-26 (b) (2), because
plaintiffs like the Conleys are notified that Ford will be able to pay an adverse
judgment or settlement in the case (whether directly or from insurance).12 In
12
OCGA § 9-11-26 (b) (2), which was added to the Georgia Civil Practice Act in 1972, see
Ga. L. 1972, p. 510, § 1, tracks an amendment to the Federal Rules of Civil Procedure enacted in
1970. That amendment resolved uncertainty as to whether insurance information had to be disclosed
38
Georgia, however, information about a civil defendant’s insurers is required for
a second, and perhaps even more important, purpose: qualifying the jury. Ford’s
national discovery practice apparently failed to take into account Georgia’s rule
and the right it provides to plaintiffs.
It is the longstanding rule in Georgia that, to ensure the right of trial by an
impartial jury, a party to a civil case is entitled to have the jury qualified by the
court as to any insurance carrier with a financial interest in the case. See Atlanta
Coach, 178 Ga. at 549-550; Weatherbee v. Hutcheson, 114 Ga. App. 761, 764
(152 SE2d 715) (1966) (“It is proper to qualify the jury relative to the possible
interest which the members may have in an insurance carrier having a financial
interest in the outcome of the suit.”). See also OCGA § 15-12-135 (a) (“All
trial jurors in the courts of this state shall be disqualified to act or serve in any
case or matter where such jurors are related by consanguinity or affinity to any
in discovery in favor of disclosure, on the ground that “[d]isclosure of insurance coverage will enable
counsel for both sides to make the same realistic appraisal of the case, so that settlement and
litigation strategy are based on knowledge and not speculation.” Fed. R.Civ. P. 26 Advisory
Committee’s Note, 1970 Amendment. For more than 20 years now, insurance agreements have been
included in the initial disclosures that must be made in most federal civil cases without even awaiting
a discovery request. See Fed. R. Civ. P. 26 (a) (1) (A) (iv). See also Fed. R. Civ. P. 26 Advisory
Committee’s Note, 1993 Amendment (“As the functional equivalent of court-ordered interrogatories,
this paragraph requires early disclosure, without need for any request, of four types of information
that have been customarily secured early in litigation through formal discovery.”). OCGA § 9-11-26
has not been amended to require such initial disclosures without request.
39
party interested in the result of the case or matter . . . .”). It is an equally
longstanding Georgia rule that where a civil jury was not properly qualified in
this way, and where the party seeking such qualification has properly preserved
the issue for review, prejudice to that party will be presumed, and in the absence
of proper rebuttal, a new trial must be ordered. See Atlanta Coach, 178 Ga. at
550-552.
The issue is not whether or not the juror can be fair and impartial
while having the interest; if this were the issue, then ignorance
would prevent prejudice. The issue is the per se disqualification
under OCGA § 15-12-135, as a matter of law, with the presumption
of prejudice.
Smith v. Crump, 223 Ga. App. at 56.
The reason for this unusual presumption of harm involves yet another
longstanding Georgia rule — the prohibition against jurors impeaching their
verdict by showing their own disqualification. See Atlanta Coach, 178 Ga. at
551-552; Reece v. State, 208 Ga. 690, 691 (69 SE2d 92) (1952) (“It is well
settled, as a matter of public policy, that a juror will not be heard to impeach his
verdict by showing his own incompetency or disqualification.”); former OCGA
§ 9-10-9 (“The affidavits of jurors may be taken to sustain but not to impeach
40
their verdict.”).13 In voir dire, prospective jurors may be questioned about their
relationships with insurers that face potential liability from a judgment in the
case and may provide truthful answers, whatever they may be; but once the jury
is seated and renders its verdict, although jurors could testify to a lack of
disqualifying relationships, they could not impeach the verdict by testifying to
any disqualifying relationship.
Thus, the party seeking to examine the jury regarding disqualifying ties
to insurance companies must be permitted to pose the questions before the
verdict, and an error in this regard cannot be cured or deemed harmless after
verdict.
If the plaintiff was entitled to have the examination as to
relationship conducted in open court and before verdict while the
jurors were competent to testify against as well as for their
13
This case was tried under Georgia’s old Evidence Code, which applied to trials
commencing before January 1, 2013. See Ga. L. 2011, p. 99, § 101. The statutory limitation on
questioning jurors after their verdict is now found in OCGA § 24-6-606 (b), which says:
Upon an inquiry into the validity of a verdict or indictment, a juror shall not
testify by affidavit or otherwise nor shall a juror’s statements be received in evidence
as to any matter or statement occurring during the course of the jury’s deliberations
or to the effect of anything upon the jury deliberations or any other juror’s mind or
emotions as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes in connection therewith;
provided, however, that a juror may testify on the question of whether extraneous
prejudicial information was improperly brought to the juror’s attention, whether any
outside influence was improperly brought to bear upon any juror, or whether there
was a mistake in entering the verdict onto the verdict form.
41
qualification, the error in denying this right was not cured by the
submission of affidavits procured by the defendant out of court and
after verdict, when the jurors could legally testify only one way on
the question, and by offering to permit the plaintiff to make a
counter-showing [that cannot legally be made].
Atlanta Coach, 178 Ga. at 552. See also Lewis v. Emory Univ., 235 Ga. App.
811, 815 (509 SE2d 635) (1998) (“[T]he law itself provides the negative factual
answer [after verdict], without an opportunity to discover whether it is true
factually or not.”).14 In short, if prejudice were not presumed in this way, a trial
court’s improper ruling refusing to allow jurors to be qualified as to insurers
would be immune from correction on appeal after verdict.
Ford seeks to avoid the application of Atlanta Coach in three ways, none
of which are convincing.
(1) First, Ford points out that Atlanta Coach involved a timely request
to the trial court to qualify the jury as to the defendant’s insurer, which was
erroneously denied; Judge Boggs’s opinion adds that in Atlanta Coach and some
similar cases granting new trials, not only was a timely objection to the lack of
14
Thus, contrary to the suggestion of Justice Melton’s concurrence, only juror affidavits or
similar evidence obtained before the verdict could rebut the presumption of harm from a failure to
properly qualify the jury. See Wallace v. Swift Spinning Mills, Inc., 236 Ga. App. 613, 615 (511
SE2d 904) (1999) (“Such presumption must be rebutted, if at all, prior to the verdict.”). As the trial
court correctly noted, Ford has offered no such evidence seeking to rebut the presumption of
prejudice to the Conleys.
42
jury qualification made at trial, but a timely new trial motion was filed
challenging that ruling. See Boggs Op. at 15. In this case, by contrast, the jury
qualification issue was first raised in an untimely, extraordinary motion for new
trial.
The timeliness of the challenge, however, goes to the issues of waiver and
due diligence, not harm. And as discussed in the previous subdivision, the
Conleys’ failure to raise the issue of qualifying Ford’s insurers earlier was
excused because Ford misled them into believing no such issue existed. As for
harm, the same reasoning that supports a presumption of harm when the failure
to properly qualify a jury is raised in an ordinary motion for new trial requires
the same presumption to be applied in an extraordinary motion: in both
situations, without presuming such harm, errors regarding jury qualification
would be immune from correction, because after the verdict, the party entitled
to jury qualification would be precluded from showing actual harm by the rule
prohibiting jurors from impeaching their verdict. Accordingly, we see no reason
to distinguish between ordinary and extraordinary motions for new trial in this
regard.
This conclusion is consistent with the Court of Appeals’s decision in
43
Patterson v. Lauderback, 211 Ga. App. 891 (440 SE2d 673) (1994), overruled
on other grounds by Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891)
(1996). Patterson held that the Atlanta Coach presumption of harm applied in
reversing the denial of an extraordinary motion for new trial based on the failure
to qualify the jury as to the defendant’s insurer. See Patterson, 211 Ga. App. at
894-896. The plaintiffs’ failure to raise the claim sooner was excused because
defense counsel misled the trial court into believing the insurer was a stock
company rather than a mutual company as to which qualification as to juror
policyholdings would be necessary, and the plaintiffs made a diligent effort after
trial to discover and produce evidence that the insurer was in fact a mutual
company. See id. The Court of Appeals concluded, “Defense counsel may state
he does not know, or is not sure, but he may not provide erroneous [insurer]
information upon which the trial court relies, and escape responsibility for
resulting error in the qualification of the jury.” Id. at 896. The same can be said
of erroneous insurer information provided by the defendant in discovery, upon
which the plaintiffs reasonably rely, as occurred in this case.15
15
Ford contends that the requirement of showing harmful error has been applied to jury
qualification-based motions for new trial, but the company cites only felony criminal cases. See
Allen v. State, 235 Ga. 709, 714 (221 SE2d 405) (1975) (“There was no showing that any juror who
44
(2) Ford next points out that the right to challenge juror qualifications
may be waived, and when so waived, it is conclusively presumed that no harm
resulted:
The disqualification of a juror . . . may be expressly or impliedly
waived by a party having cause to complain, and if expressly or
impliedly waived, it is conclusively presumed that no harm or
tried appellant was so related. A new trial, therefore, will not be granted without a showing of
harm.”); Peek v. State, 247 Ga. App. 364, 366 (542 SE2d 517) (2000). It is true that in 1899, this
Court held that a defendant seeking a new trial based on a failure to properly qualify the jury in a
felony case must prove that there was, in fact, a juror who was disqualified. See Carter v. State, 106
Ga. 372, 377 (32 SE 345) (1899). Carter and its progeny involved felony cases, however, and in
Atlanta Coach, this Court expressly distinguished civil and misdemeanor cases, where the harm from
failure to qualify the jury is presumed, from felony cases, where the defendant must prove actual
harm. See Atlanta Coach, 178 Ga. at 555 (“[A] different rule for the selection of a jury applies in
felony cases from that which obtains in civil and misdemeanor cases.”). Under Georgia statutory
law at that time, the parties in a civil or misdemeanor case were entitled to a panel of 24 “competent
and impartial jurors from which to strike a jury,” whereas parties in a felony case were entitled only
to have the trial court “impanel[ ] forty-eight jurors” whom they could then question and seek to
disqualify. Id. at 555-556. The Court reasoned that in civil and misdemeanor cases, the error was
the failure of the trial court to qualify the jury panel, but the error in a felony case involved “the
disqualification itself, and not the [court’s] refusal to make inquiry,” because the parties did not have
the legal right for the panel to be pre-qualified by the court. Id. at 556.
Although Carter was relied on in Allen, it has not been cited by this Court in almost 40 years,
and under the reasoning of Atlanta Coach, it is not clear whether the holding in Carter survived the
1951 change in the ability of parties in criminal cases to challenge jurors, which provided, in part,
that “[i]n all criminal cases both the State and the defendant shall have the right to an individual
examination of each juror from which the jury is to be selected prior to interposing a challenge.” Ga.
L. 1951, p. 214, § 2 (now codified as OCGA § 15-12-133). This Court has read that language to
mean that a “defendant in a felony case is entitled to have 48 qualified jurors put upon him.” Britten
v. State, 221 Ga. 97, 100 (143 SE2d 176) (1965) (emphasis added). In any event, to decide this case,
which involves the failure to qualify a jury in a civil case, it is sufficient to recognize that Carter’s
holding, even if still good law, never applied to civil cases.
As for Peek, that was a felony case that did not rely on Carter or involve a claim that the jury
should have been qualified generally as to a particular type of relationship. Instead, the Court of
Appeals rejected the argument that the defendant’s stepfather had been improperly allowed to sit on
the jury on the ground that nothing in the record showed that the juror actually was the defendant’s
stepfather. See 247 Ga. App. at 366.
45
benefit to either party resulted from the disqualification, and where
it appears that the party having cause to complain either knew of the
relationship or could have discovered it by the timely exercise of
ordinary diligence, and remained silent, that party will be presumed
to have waived the disqualification.
Lewis v. State, 291 Ga. 273, 275 (731 SE2d 51) (2012) (citation omitted). See
also Citizens & Southern Nat. Bank v. Haskins, 254 Ga. 131, 138 (327 SE2d
192) (1985) (holding that the plaintiffs had shown no harm from the failure to
qualify the jury as to banking relationships with the defendant bank, when the
plaintiffs failed to object to the omission of that qualification at trial); Bean v.
Barron, 176 Ga. 285, 285 (168 SE 259) (1933) (“‘When parties are furnished
with a list of the jury, it is their duty, if they know that any of the jurors are
disqualified, to call attention to the same, or the disqualification will be held to
have been waived.’” (citation omitted; emphasis added)).
Once again, however, this is not a case in which the Conleys either knew
of the ground for qualifying the jury that they now raise, or could have
discovered that ground by the timely exercise of ordinary diligence, before the
jury was empaneled. The Conleys are not complaining about the failure to
qualify the jury as to relationships with specific persons or entities that the
Conleys knew or should have realized had an interest in the case, like the parties
46
or counsel that appeared on their behalf or witnesses identified on lists
exchanged before trial. Compare, e.g., Usry, 170 Ga. at 360; Hardy v. Tanner
Med. Center, Inc., 231 Ga. App. 254, 255-256 (499 SE2d 121) (1998). Instead,
the Conleys complain that the jury should have been qualified as to Ford’s
insurers. As to that issue, as discussed in Division 3 (a) above, the Conleys did
not know whether and with whom Ford had insurance coverage for their case;
the Conleys acted diligently in asking for such information in their initial
discovery requests; Ford’s answers affirmatively misled the Conleys into
believing that Ford was self-insured; and the Conleys therefore were excused
from raising this qualification issue with the trial court before the jury was
selected.
(3) Finally, Ford forthrightly asks this Court to overrule Atlanta Coach.
Ford contends that Atlanta Coach has been subject to criticism in the Court of
Appeals, citing Floor Pro Packaging, Inc. v. AICCO, Inc., 308 Ga. App. 586,
588 (708 SE2d 547) (2011), and Presiding Judge Beasley’s special concurrence
in Franklin v. Tackett, 209 Ga. App. 448, 450-454 (433 SE2d 710) (1993). In
Floor Pro, the Court of Appeals held that for corporations other than an insurer
of a party, the presumption of harm arises only where the proponent of
47
qualification showed “a strong probability” that the corporation had “a direct,
demonstrable financial stake in the outcome of the case.” 308 Ga. App. at 588.
The court did not question Atlanta Coach’s presumption of harmful error when
the jury is not qualified as to insurance companies that directly insure a party.
See id.
The special concurrence in Franklin challenged the view that a jury should
be qualified based on a party’s insurers when the jury is unlikely to discover
who those insurers are or even if the party has insurance during the trial,
observing that “[w]ithout the link of knowledge, there is no disqualifying
interest, because the interest will not affect the decision-making.” 209 Ga. App.
at 453 (Beasley, P. J., concurring specially) (emphasis in original). Thus, the
concurrence highlighted the problem that asking jurors if they are related to a
particular insurer, as Atlanta Coach suggested, communicates to the jury that the
insurer’s interests are at stake in the case, potentially creating a need for
disqualification that would not exist and injecting the issue of insurance into the
case even though evidence of a defendant’s insurance coverage has long been
prohibited in tort trials. See Franklin, 209 Ga. App. at 450-451 (Beasley, P. J.,
concurring specially). Presiding Judge Beasley suggested that questioning
48
potential jurors about their employment and stock interests would be a better,
more circumspect way to discover their connections to insurance companies.
See id. at 453.
In several cases after Franklin, the Court of Appeals debated whether a
defendant’s specific insurers should be directly identified in qualifying the jury.
Compare, e.g., Arp v. Payne, 230 Ga. App. 840, 841 n. 2 (497 SE2d 810) (1998)
(“[T]he better approach would be to question the jury as to any financial interest
in the outcome of the case without directly identifying the insurer.’” (citation
omitted)), and Patterson, 211 Ga. App. at 895 n. 2 (noting that trial courts have
discretion to qualify jurors as to insurer relationships by following Presiding
Judge Beasley’s suggestions or using written juror questionnaires to discover
such disqualifications rather than doing so orally in the presence of all jurors),
with Arp, 230 Ga. App. at 841 (Pope, P. J., concurring specially) (“[F]ailing 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.”), and Smith v. Crump, 223 Ga.
App. at 55-56 (squarely rejecting Presiding Judge Beasley’s position, explaining
that jurors may learn the identity of a defendant’s insurers at trial in ways other
49
than through voir dire). None of those cases, however, advocate overruling
Atlanta Coach or challenge its holding that harm must be presumed when a jury
was not qualified as to a defendant’s insurers.
The question presented in this case is not whether there is any way to
adequately qualify jurors in civil cases as to a defendant’s potentially liable
insurers short of directly asking the jurors about relationships with the particular
insurance companies at issue. The question is whether to reconsider the rule that
harm to the plaintiff must be presumed where, as here, there was a complete
failure to qualify the jury as to a defendant’s insurance carriers — a rule based,
as explained above, on the need to provide a remedy to plaintiffs who are not
permitted to show actual harm because that would require them to impeach the
jury’s verdict. That rule has been the law in Georgia for 80 years now, and we
see no compelling reason to change it at this time.
(c) Conclusion
Because the Conleys acted with due diligence to raise their claim that the
jury should have been qualified as to Ford’s insurers, because the jury should
have been so qualified, and because the failure to do so raises an unrebutted
presumption that the Conleys were materially harmed, the trial court did not
50
abuse its discretion in granting the Conleys’ extraordinary motion for new trial
on this ground.
4. The Trial Court’s Pretrial Order
The trial court indicated that the Conleys also were entitled to a new trial
on the ground that Ford violated the court’s scheduling order, which required
the parties to prepare a consolidated pretrial order pursuant to the Uniform State
Court Rules. The court asserted that the pretrial order obligated “each party to
disclose the individuals or entities for which the jury should be qualified,” and
concluded that Ford violated this obligation by not disclosing its insurers that
could be liable for a judgment. We disagree.
Neither the statute regulating pretrial orders, see OCGA § 9-11-16, nor the
uniform court rule regarding pretrial orders, nor the case law requires a party to
ask the trial court to qualify the jury on behalf of its adversary. Like its superior
court counterpart, Uniform State Court Rule 7.2 (4) requires each party to file
a proposed pretrial order in which the party must, among other things, complete
the statement: “The jury will be qualified as to relationship with the following:
_______.” This allows a party to list all of the individuals and entities,
including insurers, that the party wants the court to consider in qualifying the
51
jury, and indeed the party’s failure to do so may waive its right to complain later
about the failure to so qualify the jury. See Dept. of Human Resources v.
Phillips, 268 Ga. 316, 318, 320 (486 SE2d 851) (1997); Thurmond v. Bd. of
Commrs. of Hall County, 174 Ga. App. 570, 571 (330 SE2d 787) (1985).16
Rule 7.2 does not indicate, however, that a party must list in the pretrial
order individuals and entities as to which it believes the other party might want
the jury qualified. For the proposition that such an obligation exists, the
Conleys relied at oral argument on Phillips, but that case just says generally that
“[t]he Code imposes a duty on each party to assist the trial court in formulating
the pretrial order by defining the issues for trial, and deciding ‘such other
matters as may aid in the disposition of the action.’” 268 Ga. at 318 (quoting
OCGA § 9-11-16 (a)). The trial court cited only Weatherbee v. Hutcheson, 114
Ga. App. 761, hn. 1 (152 SE2d 715) (1966), which reiterates that it is “proper”
for the court to qualify the jury in a negligence action as to the defendant’s
insurers, adding that the court “should inquire as to the existence of insurance
16
Ford cites such waiver cases in arguing that the Conleys’ failure to ask the trial court to
qualify Ford’s insurers in the pretrial order waived their right to complain about the lack of
qualification in their motion for new trial. But the Conleys’ waiver in this regard is again excused
because Ford affirmatively misled them into believing that Ford had no such insurers. See Division
3 (a) above.
52
and the name of the company, or comp[anies], so that the information will be
available for qualifying the jury,” and “[w]hen requested by the court, counsel
should make full and fair disclosure of the [insurance] information,” so long as
that colloquy occurs outside the presence of the jury. Id. But in this case —
unlike in Young — there is no evidence that the trial court ever made such a
specific inquiry about Ford’s insurers. No case cited to us, or that we have
found, holds that a party with insurers that may cover the claims against it has
an affirmative duty to volunteer that information to the court in the pretrial order
(or otherwise), much less that the failure to do so warrants a new trial. We
therefore hold that the trial court erred as a matter of law to the extent that the
court ruled that the Conleys were entitled to a new trial because Ford failed to
list its insurers in the pretrial order.
On the other hand, it is clear that a party may, if it chooses, list its own
insurers in the pretrial order, thereby unambiguously notifying the opposing
party and the trial court of the potential jury qualification issue and insulating
itself from challenge on the issue if the court then qualifies the jury as to those
insurers or if the opposing party fails to object to the lack of such qualification.
At a minimum, in drafting its pretrial order and reviewing the Conleys’ draft,
53
and in discussing the pretrial order with the trial court, Ford was required to
focus on the issue of jury qualification, and indeed the consolidated pretrial
order listed numerous individuals, entities, and witnesses as to whom the parties
wanted the jury qualified.
In this regard, Ford — the party corporation, if not its trial counsel at that
point in time — indisputably knew that it had insurers which were liable to
cover a reasonable judgment in this case, and Ford was charged with knowledge
of the law — that under settled Georgia law, the trial court’s failure to qualify
the jury as to such insurers would be deemed harmful error if raised after a
defense verdict, unless it was then concluded that the Conleys were aware or
should have been aware of the insurers. Thus, while the pretrial order did not
obligate Ford to list its insurers, Ford had good reason and ample opportunity
at these points of the pretrial process to ensure that the Conleys (and the court)
understood that Ford in fact had numerous insurers, and in making its overall
findings regarding what the Conleys understood about Ford’s insurance
coverage and what Ford intended the Conleys to understand, the trial court could
take into account the parties’ failure to address Ford’s insurance with respect to
the pretrial order.
54
5. Conclusion
We close by addressing the contention of Ford and its amicus that if we
affirm the trial court’s ruling, the floodgates will be opened for countless more
extraordinary motions for new trial to be granted, and final judgments
undermined, where parties who lost at trial comb back through discovery
materials and find some vague response to use as the basis for such a motion.
However, outside the circumstances of this case, which we certainly hope are
unusual, such efforts are unlikely to be successful, because of the strict
requirements for granting extraordinary motions for new trial that we have
reiterated in Division 2 above.
To begin with, absent good evidence, and a finding by the trial court, that
the opposing party’s discovery responses, made in response to reasonably
precise, straightforward, and unambiguous requests, were not just vague or
incomplete but affirmatively misleading, the moving party will normally be
unable to explain why it did not pursue a definitive response with a motion to
compel and therefore will not be able to satisfy the due diligence requirement.
We fully agree with Ford that “[a] party can not during the trial ignore what he
thinks to be an injustice, take his chance on a favorable verdict, and complain
55
later.” Johnson v. State, 282 Ga. 96, 98 (646 SE2d 216) (2007) (citation and
punctuation omitted). A party that ignores a discovery violation or jury
qualification issue of which it is aware — or of which it should be aware — at
the time of trial waives the right to rely on that issue in a motion for new trial,
and such waiver will indeed defeat many new trial motions. See, e.g., Sibley v.
Dial, 315 Ga. App. 457, 459 (723 SE2d 689) (2012) (holding that Sibley waived
his complaint that, “although prospective jurors were asked about their
relationship with [the defendant’s insurer] State Farm, they were asked without
having taken the statutory oath,” because “Sibley and his lawyer knew that
prospective jurors had been qualified as to any relationship with State Farm
outside their presence, but they failed to object to this procedure or to even
inquire whether the oath had been administered before the prospective jurors
had been so qualified”). In this case, however, the Conleys’ awareness of Ford’s
insurers was precluded by Ford’s misleading discovery responses.
We also note in this respect that Ford and its amicus have offered no
evidence that discovery responses that courts would find to be affirmatively
misleading are routinely made. Ford does not admit engaging in such a
discovery practice even in this case, much less on a regular basis, and the amicus
56
does not suggest that the businesses for whom it speaks frequently commit
discovery violations that can and would be reasonably construed by courts as
providing false and misleading answers. Indeed, there is no indication that other
defendants in Georgia civil cases have engaged in Ford’s former practice — we
assume it has now been stopped — of customarily indicating that the defendant
is self-insured (sometimes with obfuscating objections) when asked for basic
and entirely appropriate information about insurance coverage for claims. In the
absence of evidence to the contrary, we hesitate to broadly attribute a lack of
fundamental honesty and professionalism in discovery practice to litigants and
lawyers in this State. Moreover, we trust our trial courts to review claims of
such misconduct carefully to ensure that the requirement to diligently pursue
requested discovery, and to bring complaints about discovery and other matters
to the attention of the court in a timely fashion, are not eroded.
Even if the moving party could satisfy the due diligence requirement, the
party must also show harm from the asserted error. See Eberhardt, 163 Ga. at
803. In the great majority of cases, this requires a showing of actual harm, and
again we have been offered no evidence suggesting that the results of trials are
regularly affected even where some discovery violation occurred. Even in the
57
rare situations where harm must be presumed, as with the failure to properly
qualify the jury in a civil case, many claims will have foundered under the due
diligence requirement. For example, as mentioned previously, many potential
jury qualification issues — like relationships with the parties or their counsel —
would normally be apparent from the record to any diligent party and thus must
be raised before the jury is seated or deemed waived for later review.
Accordingly, our decision today should be not be read as breaking any
new ground, but rather as simply affirming the grant of an extraordinary motion
for new trial based on the application of settled rules of law to a set of facts that
may well be peculiar to Ford’s ill-considered discovery practice. If this case is
to teach any lesson, it is that the civil discovery process is supposed to work to
allow the parties to obtain the information they need to prove and defend their
cases at trial before impartial juries. Discovery is not supposed to be a game in
which the parties maneuver to hide the truth about relevant facts, and when a
party does intentionally mislead its adversary, it bears the risk that the truth will
later be revealed and that the judgment it obtained will be re-opened to allow a
new trial based on the truth.
Judgment affirmed. All the Justices concur.
58
MELTON, Justice, concurring.
Although I agree with the outcome of the majority opinion, I write
separately to emphasize that the presumption of harm raised by the failure to
qualify a jury with regard to insurance coverage is a rebuttable one. Atlanta
Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934). For example, under
circumstances in which a trial is conducted from start to finish with no mention
of any insurance carrier, harm would appear to be highly unlikely, given the fact
that the jurors could not be adversely affected by information never disclosed
to them. Under such circumstances, the presumptive harm associated with the
lack of qualification might properly be rebutted. To accomplish this rebuttal,
however, a party must raise a timely and proper argument. Because the evidence
is not dispositive that any such rebuttal was both timely and properly made, I
agree with the majority’s conclusion that the trial court did not abuse its
discretion by granting an extraordinary new trial in this case.
59
Decided February 24, 2014.
Product liability. Cobb State Court. Before Judge Tanksley.
Balch & Bingham, Michael J. Bowers, Christopher S. Anulewicz, Huff,
Powell & Bailey, Audrey K. Berland, Michael R. Boorman, Kilpatrick,
Townsend & Stockman, Curtis A. Garrett, Jr., Adam H. Charnes, for appellant.
Andrew W. Jones, Robin F. Clark, Beasley, Allen, Crow, Methvin, Portis
& Miles, Benjamin E. Baker, Jr., Dana Taunton, for appellees.
King & Spalding, Chilton D. Varner, Stephen B. Devereaux, Susan M.
Clare, Moore, Ingram, Johnson & Steele, Robert D. Ingram, Angela H. Smith,
Harris, Penn & Lowry, Darren W. Penn, Madeline E. McNeeley, amici curiae.
60