Getz Exterminators of Georgia, Inc. v. Towe

387 S.E.2d 338, 193 Ga. App. 268, 1989 Ga. App. LEXIS 1410
CourtCourt of Appeals of Georgia
DecidedSeptember 6, 1989
DocketA89A0911
StatusPublished
Cited by8 cases

This text of 387 S.E.2d 338 (Getz Exterminators of Georgia, Inc. v. Towe) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Getz Exterminators of Georgia, Inc. v. Towe, 387 S.E.2d 338, 193 Ga. App. 268, 1989 Ga. App. LEXIS 1410 (Ga. Ct. App. 1989).

Opinions

Birdsong, Judge.

In late 1984, William and Charlon Towe entered a contract to purchase a house, and thereafter arranged to finance the purchase through Fairfield Financial Corporation. On the day of the scheduled closing, Fairfield insisted on a “termite letter,” and for that purpose the appellant inspected the house and prepared an inspection report. This inspection report warned of visible evidence of previous infestation and damages from wood-decaying fungus, but not from termites. The report also indicated that the appellant had treated the house in 1969 “for prevention or control of subterranean termites,” and that the treatment was warranted until May 1985.

Initially, because of this termite letter, Fairfield’s attorney felt insecure about allowing the loan to close, but a telephone contact [269]*269with the appellant allayed any concern. This attorney contacted Mrs. Towe and only related to her the report’s information about the damage and the dormant wood fungus. The Towes never saw the termite letter prior to the closing. About 11 days after the closing, the Towes discovered a swarm of termites in their den. Subsequent inspection by other pest control companies and contractors revealed extensive termite damage throughout the house. (At trial, although there was evidence that repairs could be made for $18,500, there also was evidence that the house was so damaged that it had no value.)

Subsequently, the Towes and Decatur Federal Savings & Loan Association, to whom Fairfield had assigned its interest, sued the appellant for negligent inspection. The jury awarded the Towes and Decatur Federal $98,000 for actual damages, and awarded the Towes $12,012.92 as consequential damages and $150,000 as punitive damages. This appeal followed. Held:

1. If any improper insurance evidence was injected in this case, as appellant complains, it was appellant’s own fault.

Appellant defendant complains that plaintiff’s attorney queried a prospective juror, who was an insurance agent: “Because of your business relationship with one of the defendant insurance companies, do you feel that it would impair you to render a verdict just solely on the evidence. . .?” (Emphasis supplied.) Thus it was improperly and inaccurately stated only that an insurance company was a defendant in the case. The defendant’s attorney objected to “the statement that Interstate [the named insurance company], was a defendant in this case, which is simply incorrect and misleading.”

The trial court immediately instructed the jurors that they “should lay aside any impression on your minds from that statement. [The named insurance corporations] are not parties in this case. They are not parties, either as plaintiffs or defendants. That should not have been mentioned to you, because it is inaccurate. They are not parties in the case, and any impression that was created in your mind by the mention of them . . . should be removed.” To this curative instruction, defendant Getz’ counsel did not object, until after the panel was ruled qualified as to relationships.

Appellant’s counsel then stated to the court: “ . . . I think at this point in time the jury knows that an insurance company is involved, one of the defendants in the case. I’m not sure how we can correct this. The only thing I know to do is move for a new panel. The first thing they have heard is two statements that the defendant has liability insurance, and then a long discussion, and the first ruling from the court is the direction to disregard the . . . [statements] that the defendant was a liability insurance company.” (Emphasis supplied.)

This quoted objection by defense counsel misinterprets what occurred. Prior to any jury selection proceedings, the parties and trial [270]*270court discussed at length the plaintiff’s bad faith claim versus the inadmissibility of insurance evidence and the trial court’s desire to avoid a mistrial. Then, the defendant brought up the matter of qualifying jurors as to Interstate Fire & Casualty Company (its liability insurer) and agreed to such qualification, while successfully protesting any qualification as to Interstate’s parent or sister company. The jurors were then brought in and the trial court inquired as to any relationships with Interstate. One juror avowed that he was an independent insurance agent who could and did sell insurance for that company.

The plaintiff mortgagee’s counsel moved to disqualify this juror. It was the defendant-appellant’s counsel who then said defendant did not think this juror should be disqualified. The trial court asked for “reasons,” and in the ensuing discussion the plaintiff mortgagee’s attorney asked the juror if, and how long, he had sold policies for Interstate and what kind of policy he sold for Interstate. The juror responded that he sold “property insurance and general liability insurance.” Mortgagee’s counsel asked, “What kind of property coverage?” and the juror replied: “Commercial buildings. That is all, to my knowledge, right now.”

The foregoing colloquy is the only mention of “liability” insurance we find in this transcript up to the time of the appellant’s objection. Only by inviting speculation does it suggest that defendant Getz had liability insurance. More significantly, however, it was Getz who elicited these remarks by urging and agreeing that jurors be qualified as to relationships with its insurer, Interstate. And most significantly, appellant Getz did not at the time object to this mention of the word “liability.”

It is clear upon the face of the record that appellant’s later complaint that “[t]he first thing [the jurors] have heard is . . . that the defendant has liability insurance,” is simply not correct. Moreover, if that statement were accurate, it was the appellant who, in all, brought the matter out before the jury.

Appellant’s complaint of the second of “two statements” put before the jury by plaintiff (by query to the juror about his relationship “with one of the defendant insurance companies”) is more accurately based, but does not provide a ground for reversal of the verdict. Appellant complained of this statement at the time it was made, and the trial court quickly instructed the jury to disregard, as “inaccurate,” any mention that an insurance company was a defendant. Therefore, the improper statement was clearly and precisely .cured.

Finally, but not least, these curative remarks did more than cure any prejudicial idea that appellant had liability insurance: they just as easily implied to the jury the appellant had no insurance, since no insurance company was a defendant in the case. In any event, the [271]*271mere reference to “defendant insurance companies,” could be poisonous only in combination with the earlier vague mention of “liability” insurance, which appellant induced by claiming that the insurance agent juror should not be disqualified and thus laying ground for all of the subsequent questioning of this juror, of which it now complains.

Finally, if there was any real prejudice left hanging that was not appellant’s fault, appellant did not move vigorously enough to remove it, for it asked only for a new panel, and did not then ask for a mistrial so as to place the trial court on firm notice that it deemed itself to be mortally offended and deemed its case to be irretrievably poisoned by the injection of this evidence.

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Getz Exterminators of Georgia, Inc. v. Towe
387 S.E.2d 338 (Court of Appeals of Georgia, 1989)

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Bluebook (online)
387 S.E.2d 338, 193 Ga. App. 268, 1989 Ga. App. LEXIS 1410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/getz-exterminators-of-georgia-inc-v-towe-gactapp-1989.