Goss Brothers Trucking v. Ashley

Ruffin, Judge.

Regina Ashley was involved in an automobile collision with a tractor-trailer owned by Goss Brothers Trucking (“Goss”). Ashley brought this personal injury action against Goss, its driver, and, pursuant to OCGA § 46-7-12 (e), Goss’ insurer, Canal Insurance Company (“Canal”). A jury heard evidence of Ashley’s injuries and damages, which included a broken sternum and over $17,000 in medical bills, and returned a verdict against the defendants in the amount of $107,000. The defendants appeal the judgment entered on that verdict. Because we find the trial court should have granted a mistrial when Ashley’s attorney presented evidence of the limits of Goss’ insurance policy, we reverse and remand for a new trial.

1. The grant of a mistrial is within the discretion of the trial court, and a mistrial is required “only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court.” (Punctuation omitted.) Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996). Here, Ashley’s attorney cross-examinined one of the owners of Goss Trucking and established that Goss had a liability insurance policy with Canal. Leading the witness, Ashley’s attorney then asked: “And that policy is a one million dollar policy?” Before the witness replied, Goss’ attorney objected and moved for a mistrial. The trial court refused to grant a mistrial, but did caution the jury: “Ladies and gentlemen, I want to give you some instructions at this point. As you are aware, a question was asked by plaintiff’s counsel as to the amount of liability insurance coverage that was carried by Goss Brothers Trucking. ... In this particular type of case, . . . [the fact of insurance] is admissible. . . . But the amount of insurance that is carried by Goss Brothers Trucking is completely irrelevant to this case, has nothing to do with it. And as I say, no answer has been given concerning that amount. You should completely disregard the question itself and you should not, in making your deliberations in this case, be influenced in any way by what you may speculate to be the amount of liability insurance coverage carried by [Goss]. That . . . has absolutely nothing to do with this case and you should disregard it.” Goss timely renewed its motion for mistrial.

Ashley’s leading question was certainly error and grounds for a mistrial. As the Supreme Court held in Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746, 747 (272 SE2d 702) (1980), the law allows evidence in a direct action that the defendant has liability insurance; however, the amount of that insurance remains inadmissible because of its prejudicial nature. Id. at 747. See also Sweat v. Burke, 156 Ga. App. 637 (276 SE2d 51) (1980) (in direct action case, admission of evidence showing policy limits required reversal of judgment for plaintiff); Early County v. Fincher, 184 Ga. App. 47, 48 (1) (360 SE2d 602) (1987) (where evidence of insurance is admissible, limits of policy should be excluded to avoid “probable prejudice” which would result). It is settled law in this State that the erroneous injection of “insurance” into a tort case is grounds for mistrial “[b]ecause of its irrelevanee and prejudicial value. . . . Such evidence is highly prejudicial and it can influence the entire case, no matter which side attempts to introduce it.” Denton v. Con-Way Southern Express, 261 Ga. 41, 42 (402 SE2d 269) (1991), disapproved on other grounds, Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992). “ ‘(T)he strict exclusion of [evidence of insurance] is due . . . chiefly to the assumption that a knowledge of the fact of insurance against liability will motivate the jury to be reckless in awarding damages to be paid, not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk.’ [Cit.]” Denton, supra at 42-43, n. 2.

Ashley’s “question” also injected into the case Goss’ wealth and ability to pay, an equally improper and prejudicial area of inquiry. See Adams v. Camp Harmony Assn., 190 Ga. App. 506, 508 (379 SE2d 407) (1989). “[N]either the wealth of the plaintiff nor the defendant is relevant. A man’s treatment before the bar of Justice should not vary with his financial condition.” (Citation and punctuation omitted.) Denton, supra at 42.

We believe a mistrial was required in this case. In Dubose, supra, the Court found that strong cautionary instructions cured the erroneous mention of insurance. But here, the attorney’s question all but informed the jury that Goss could pay and that a verdict in excess of $100,000 would be but a fraction of its policy limits. The wrongful mention of how much Goss could pay aligns this case with Adams, supra. There, the defendant’s attorney argued in closing that if the jury awarded damages to the plaintiff, the defendant would no longer be able to afford to conduct his charitable work. Recognizing the highly prejudicial nature of this argument, we held that “no amount of instruction by the trial judge” could cure the inflammatory comments and found a new trial was required despite the trial court’s curative instructions. Adams, supra at 508.

Ashley argues, and the trial court found, that no mistrial was required because the improper question was never answered. In Thomas Milling Co. v. Branch, 118 Ga. App. 857, 858 (1) (165 SE2d 907) (1968), however, this Court found a mistrial warranted where an attorney did nothing more than tell the jury in his opening statement, “ ‘[flor our own reasons, we are suing for $99,995. We kept it under the $100,000 for our own reasons.’ ” Combined with the qualification of the jury in voir dire regarding an insurance company, the attorney’s statement made it clear that the policy limits were $100,000. Here, similarly, the “question” propounded by Ashley’s attorney amounted to a statement of the policy limits, and considering the extent of harm which results from such a statement, the trial court’s efforts to cure the error were admirable but insufficient.¹ For these reasons, we reverse the trial court’s judgment and remand this case for a new trial.

2. Goss’ second enumeration of error contends the trial court erred by excluding from evidence several pictures of Ashley’s car. Goss claims these photos were relevant to show that Ashley’s car was damaged only slightly in the collision. The trial court excluded the photos from evidence because they were not listed as evidence in the pre-trial order and because Goss’ attorneys did not deliver the photos to Ashley’s attorney until the weekend before trial. Under those circumstances, the court found this undisclosed evidence unfairly prejudiced Ashley’s ability to present her case. It appears Goss’ attorneys had erroneously believed no such pictures existed, but obtained the pictures and delivered them to Ashley’s counsel as soon as they learned of the photos.

Although a pre-trial order “ ‘should not be construed to preclude a party from introducing evidence relating to his case if less harsh sanctions are appropriate^ a]t the same time broad discretion is reposed in the trial court whose decision will not be disturbed except in cases demonstrating a clear abuse of that discretion.’ [Cit.]” Nat. Old Line Ins. Co. v. Lane, 172 Ga. App. 519, 523 (5) (323 SE2d 707) (1984). We find no abuse of discretion, but on remand the trial court is free to re-examine this issue in light of the fact that these photographs have been available to plaintiff’s counsel since the first trial.

Judgment reversed.

Andrews, C. J., Birdsong, P. J, Johnson and Blackburn, JJ, concur. McMurray, P. J, and Senior Appellate Judge Harold R. Banke dissent.

1 Colloquy between defense counsel and the court indicates that the limits were actually $750,000, rather than $1 million.