FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 21, 2024
In the Court of Appeals of Georgia A24A0161. WOODS v. HEATH.
GOBEIL, Judge.
After Lorrene Woods rear-ended the vehicle Shawn Heath was driving, Heath
filed suit. The case proceeded to a jury trial, and the jury awarded Heath $2,000,000
in damages. Woods filed a motion for new trial, which the court denied. The trial
court also entered an order granting Heath’s motion for OCGA § 9-11-68 attorney
fees and litigation expenses. On appeal, Woods contends the trial court erred by
permitting Heath’s counsel to inform the jury that Woods had liability insurance
coverage. Woods also argues that the trial court’s grant of Heath’s motion for fees and
expenses was erroneous because the order was issued after she had filed her notice of
appeal. For the reasons explained more fully below, we reverse the judgment, vacate the attorney fee award under OCGA § 9-11-68, and remand for a new trial.
“(T)his Court reviews the judgment entered by the trial court after approval
of a jury verdict upon the any evidence test, absent any material error of law.
Additionally, when a question of law is at issue, we owe no deference to the trial
court’s ruling and apply a de novo standard of review.” Howland v. Wadsworth, 324
Ga. App. 175, 176-177 (749 SE2d 762) (2013) (citations and punctuation omitted).
So viewed, the record shows that on the afternoon of Wednesday, July 11, 2018,
Heath was driving on Interstate 16 near Savannah, heading home from his job as a
painter. As he approached Chatham Parkway, traffic stopped, and he hit his brakes
and came to a stop. Woods was unable to stop in time and hit Heath’s truck from
behind. Although Woods felt “very shaky” immediately after the collision, he did not
report any pain at the crash scene, and he was able to work the Thursday and Friday
immediately following the accident. Over the weekend however, he noticed pain in his
lower back, and he sought medical treatment the following Monday. Prior to this
emergency room visit, Woods had never before sought treatment for lower back pain.
He was diagnosed with a muscle/lumbar strain and advised to seek follow-up
treatment at Curtis Cooper Clinic as needed. Heath did not go to this clinic, but
instead sought treatment with a chiropractor at Dynamic Spine & Rehab
2 (“Dynamic”). Heath testified that the treatment he received at Dynamic did not
improve his condition.
On July 30, 2018, Heath had an MRI, and the scan showed extensive, pre-
existing spinal degeneration. He saw another chiropractor at Ortho Sport & Spine
(“Ortho”) in 2019. In September 2020, Heath had a second MRI, which showed a
significant worsening of his condition, including additional herniated discs in his
lumbar spine. A March 2021 MRI showed serious deterioration of his lumbar spine,
and he underwent lumbar spinal fusion surgery in May 2021.
In November 2019, Heath filed a personal injury action against Woods, raising
claims for negligence and negligence per se and seeking general and special damages,
including damages for past and future medical expenses and lost income. Prior to trial,
Woods filed a motion in limine seeking, in relevant part, to exclude references to the
existence of liability insurance or coverage, arguing that “[a]ny reference or inference
by counsel or witnesses regarding insurance increases the danger of prejudicially
impressing upon the jurors the fact that [Woods] has or may have had liability
insurance.” Noting that Heath did not object, the trial court granted Woods’s motion
in limine.1
1 Heath also filed motions in limine seeking to exclude, in relevant part, evidence that Heath’s medical treatment (aside from his emergency department 3 In a consolidated pretrial order, Heath noted that he was seeking $852,727.02
in past and future medical expenses. In her portion of the pretrial order, Woods
“acknowledge[d] responsibility for the collision,” but contended that Heath’s
“current complaints and medical problems are due to pre-existing and unrelated
conditions and are not the result of the minor accident of July 11, 2018.” At trial, the
jury heard testimony from Heath, as well as from several physicians who opined as to
his medical treatment and condition. Heath could not recall if his physicians informed
him about whether his spinal bulges and herniations were related to the July 2018
accident. When Woods took the stand, she admitted that she was involved in a
collision with Heath’s vehicle after traffic slowed ahead of her and she was unable to
stop in time.
During closing argument, Woods’s counsel conceded that Woods was not
contesting liability for the car accident. However, counsel then highlighted the July
30, 2018 MRI that showed broad based disc bulging, but did not show herniation. In
contrast, two years later, Heath’s MRI showed herniations in the lumbar spine, which
treatment) was provided on a lien basis, such that the physicians would receive payment only in the event that Heath recovered damages. Woods objected, arguing that the payment arrangement was highly relevant to attack the credibility of Heath’s treating physicians based on their financial interest in the outcome of the case. The trial court denied Heath’s motion as to this ground, and noted that evidence of the fee structure was “relevant to the issues of credibility, potential bias[,] and causation.” 4 Woods’ counsel described as “entirely consistent with regression of degenerative
conditions in the spine.” He posed the issue before the jury as follows: “Is there proof
from the evidence you’ve heard, that the motor vehicle accident[ ] has caused any
herniation in Mr. Heath’s spine?” Defense counsel set out the evidence that he
contended proved Heath’s condition was degenerative and unrelated to the accident,
and argued:
The ER doctor didn’t send [Heath] to the chiropractor. He went there. He says it was no help, but asking you to make Ms. Woods pay for it. . . . [E]ven those injections they did, all of those things, what did he say about that in his testimony? No help. I still want you to make Ms. Woods pay for it. The future surgeries, they’ve got tremendous future costs. They’re asking you to award against Ms. Woods. You have to decide for yourself, is it going to happen, is it necessary, is it related to this accident[ ]? And that’s what you have to decide about every medical bill in this case . . . .
Heath’s counsel did not object to these statements during closing argument, but after
Woods’s counsel had concluded his argument, the parties convened a bench
conference. Heath’s counsel argued that Woods had opened the door to evidence of
liability insurance coverage to counter the representation that Woods “is going to be
responsible for any judgment paid in this case[.]” He continued: “by interjecting that
Ms. Woods would be personally responsible, that misleads the jury, and it improperly
5 suggests to them that Ms. Woods would be personally responsible for any burden,
which is not actually the case.” Heath’s counsel therefore requested permission to
inform the jury that “Ms. Woods has auto insurance through State Farm and it applies
to this case.” Woods’s counsel strongly objected, maintaining that the introduction
of liability insurance constitutes reversible error. The trial court ruled that Heath’s
counsel could inform the jury about Woods’s coverage with State Farm, reasoning
that Woods’s counsel’s statements that Heath wanted her to pay the medical bills,
“rather than saying [he] wants damages awarded,” would permit argument that
Woods had liability coverage. Woods’s counsel again objected and moved for a
mistrial, and the court noted his objection for the record.
Heath’s counsel then made his closing argument to the jury. He pointed to a
lack of evidence contradicting Heath’s case, and requested past and future medical
expenses of approximately $853,000, and $1,663,160 for past and future pain and
suffering. Heath’s counsel then explained to the jury:
And there’s a couple of comments that [Woods’s counsel] made that I want to, just imply to you that is appealing to your sympathy and not to the law and all what you have to follow. [Woods’s counsel] told you that Mr. Heath wanted Ms. Woods to pay for medical expenses to Dynamic Spine, Ortho Spine and for future surgery. In reality, Ms. Woods has auto insurance. We’re asking her [ ] auto insurance to pay — State Farm
6 — [.]
Wood’s counsel lodged an objection, and the trial court overruled the objection,
stating: “An objection was made earlier and there was law that was presented outside
the presence of the jury. And I will overrule your objection.”
When the proceedings resumed the following morning, defense counsel again
moved for a mistrial on the ground of the improper mention of liability insurance
coverage. Woods’s counsel specifically addressed the potential harm of the improper
injection of this information, noting that “to say that we’re not asking her to pay
anything, because she has State Farm Insurance, is misleading to the jury, because it
infers that there’s enough insurance to pay all of that, which is far from it. So I think
it opens the door to a mess that can’t be fixed[.]” In denying the motion for a mistrial,
the court ruled that the evidence of liability insurance was “admissible for a relevant
purpose to explain to the jury, any misconception that Ms. Woods would be personally
held responsible for these damages.”
The trial court then instructed the jury on the law to be applied in the case, and
gave the following instruction: “The existence of a liability insurance policy should
have no bearing on your decision to award or not award damages in this case, nor
should it have any bearing on the amount of damages awarded if deemed appropriate
7 value [sic].” Defense counsel excepted to the charge, which had not been discussed
at the previous day’s charge conference, arguing that the court’s instruction “just
emphasizes that there was perhaps an insurance policy here, which should . . . not
have been brought up at all in the trial and certainly not emphasized in the charge.”
Counsel then renewed the motion for mistrial based on the introduction of the liability
policy, and he maintained that the court’s curative instruction was inadequate. The
court denied the renewed motion for a mistrial.
Following deliberations, the jury returned a verdict in favor of Heath and
awarded him $2 million in damages, including $621,000 in special damages and
$1,379,000 in general damages. The trial court entered judgment on the jury’s verdict,
after which Heath filed a motion for attorney fees and litigation expenses pursuant to
OCGA § 9-11-68, Georgia’s Offer of Settlement Statute. In his motion, Heath claimed
that he was entitled to an award of fees and costs because the jury’s verdict was
greater than 125 percent of his May 28, 2020 settlement offer. See OCGA § 9-11-68
(b) (2).
Woods filed a motion for new trial, as amended, raising the general grounds and
arguing that the trial court erred by allowing Heath’s counsel to disclose to the jury
that Woods had liability insurance with State Farm — thus implying that she would
8 not have to personally pay the judgment rendered against her — and erred in charging
the jury as to the existence of liability insurance. After a hearing, the trial court denied
the motion for new trial, finding that OCGA § 24-4-411 afforded the court discretion
to admit evidence of insurance and it allowed the jury to “be permitted to learn of the
presence of State Farm to correct any misconception that [Woods] would solely be
responsible for any verdict entered in the case.” Woods filed her notice of appeal on
July 5, 2023; and the following day, the trial court issued an order granting Heath’s
motion for OCGA § 9-11-68 fees in the amount of $842,242.90.
1. In related claims of error, Woods argues that the trial court erred by
permitting Heath’s counsel to inform the jury that Woods had liability insurance
coverage, and she therefore is entitled to a new trial. She contends that this disclosure
violated OCGA § 24-4-411 and was extraordinarily prejudicial. She also maintains that
the trial court erred by finding that her counsel’s statements “opened the door” to
disclosure of her insurance coverage, and the court’s purported curative instruction
did not remedy the error. We agree.
“The trial judge in passing on motions for mistrial has a broad discretion,
dependent on the circumstances of each case, which will not be disturbed unless
manifestly abused. Unless it is apparent that a mistrial is essential to preservation of
9 the right of a fair trial, the discretion of the trial judge will not be interfered with.”
Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 482 (9) (491 SE2d 909) (1997)
(citation and punctuation omitted). “Similarly, the denial of a motion for a new trial
is also a matter within the sound discretion of the trial court. Accordingly, it will not
be disturbed if there is any evidence to authorize it.” Defusco v. Free, 287 Ga. App. 313,
314 (651 SE2d 458) (2007) (citation and punctuation omitted). An abuse of discretion
“occurs where the trial court’s ruling is unsupported by any evidence of record or
where that ruling misstates or misapplies the relevant law.” Mathis v. BellSouth, 301
Ga. App. 881, 881 (690 SE2d 210) (2010).
As noted above, after the trial court permitted Heath’s counsel to disclose to
the jury that Woods had insurance with State Farm, Woods’s counsel moved for a
mistrial. In denying the motion, the trial court relied on OCGA § 24-4-411, and
deemed the fact that Woods was insured “admissible for a relevant purpose to explain
to the jury, any misconception that Ms. Woods would be personally held responsible
for these damages.”
OCGA § 24-4-411 provides:
In all civil proceedings involving a claim for damages, evidence that a person was or was not insured against liability shall not be admissible except as provided in this Code section. This Code section shall not
10 require the exclusion of evidence of insurance against liability in proceedings . . . when such evidence is offered for a relevant purpose, including, but not limited to, proof of agency, ownership, or control, and the court finds that the danger of unfair prejudice is substantially outweighed by the probative value of the evidence.
This statute is the codification of the well-settled law in Georgia that the erroneous
injection of insurance into a tort case is grounds for a mistrial “[b]ecause of its
irrelevance 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) (citation and
footnote omitted), disapproved on other grounds by Grissom v. Gleason, 262 Ga. 374,
376-377 (2) (418 SE2d 27) (1992).
The 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.
Denton, 261 Ga. at 42-43 n. 2 (citation and punctuation omitted).
We agree with Woods that the trial court erred by permitting Heath’s counsel
to disclose to the jury the fact that Woods had liability insurance coverage. Woods’s
counsel’s statements that Heath was “asking [the jury] to make Ms. Woods pay for”
11 the chiropractic care and future surgeries were “not inconsistent with the existence
of insurance coverage [such that Woods] did not open the door to admission of
evidence that she was covered by insurance.” Brown v. Macheers, 249 Ga. App. 418,
421 (6) (547 SE2d 759) (2001). Nor was the fact of coverage offered for a proper
purpose, such as proof of agency, ownership, or control; impeachment; or to show
bias. See, e.g., Kelley v. Purcell, 301 Ga. App. 88, 89-91 (686 SE2d 879) (2009)
(evidence that plaintiff had insurance coverage held relevant and admissible to
impeach plaintiff’s testimony that she could not afford surgery, and delay in surgery
was part of her damages claim); Brown v. Tucker, 337 Ga. App. 704, 711-713 (3) (788
SE2d 810) (2016) (no error in trial court’s ruling admitting evidence of insurance
coverage where court concluded that probative value of evidence showing bias
substantially outweighed prejudicial effect of allowing party to introduce evidence of
insurance), disapproved of on other grounds by Miller v. Golden Peanut Co., LLC, 317
Ga. 22, 29 (1) (b) n. 8 (891 SE2d 776) (2023). Instead, in this case the trial court
permitted argument on the fact of insurance coverage for the precise reason such
evidence is prohibited — to convey to the jury that State Farm, rather than Woods,
would be responsible for paying any damages awarded by the jury.
Having determined that the trial court erred by permitting the improper
12 argument, we now turn to whether its denial of the motion for mistrial and motion for
new trial constituted an abuse of discretion.
In Georgia[,] the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is 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, that a mistrial should be granted. The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse. This principle is historically respected in this jurisdiction.
Defusco, 287 Ga. App. at 314-315 (citation and punctuation omitted). In this case, the
trial court did not rebuke Heath’s counsel for injecting the issue of insurance coverage
into the case. Indeed, the court expressly permitted this line of argument and
overruled Woods’s objection to the mention of State Farm in the presence of the jury.
Furthermore, because the injection of insurance was sanctioned by the trial court, we
cannot say that the court’s purported curative instruction was sufficient to remedy the
improper reference to the existence of liability insurance coverage as “[s]uch evidence
is prejudicial because by its nature its effect is not self-limiting, but it laps over into
other considerations,” and “contaminat[es] . . . the issue of loss with the issues of
13 injury and liability.” Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 176 (1) (421
SE2d 767) (1992) (citation, punctuation and emphasis omitted). “[G]iven our
Supreme Court’s statements that evidence of insurance involves a substantial
likelihood of prejudicial impact and is inherently prejudicial because its infectious
nature tends to contaminate the entire trial,” we cannot say that this error was
harmless in light of the circumstances described above. Luke v. Suber, 217 Ga. App.
84, 86-87 (1) (456 SE2d 598) (1995) (citation and punctuation omitted). Because the
improper injection of liability coverage likely prejudiced Woods’s case, we agree that
the trial court committed reversible error and remand the case for a new trial.
2. “Because an award under OCGA § 9-11-68 (b) (2) is contingent upon the
final judgment in the case, we vacate the trial court’s award of attorney fees and
expenses of litigation.” MARTA v. Tyler, 360 Ga. App. 710, 714-715 (2) (860 SE2d
224) (2021).
Judgment reversed in part and vacated in part and case remanded. Barnes, P. J.
concurs fully and specially and Pipkin, J., concurs.
14 A24A0161. WOODS v. HEATH.
BARNES, Presiding Judge, concurring fully and specially.
I concur fully in the majority’s opinion. Having carefully reviewed the trial
transcript, I agree with the majority that Woods’s counsel did not go so far as to claim
or imply during closing argument that Woods lacked insurance. However, I write
separately to emphasize that in a case where defense counsel did in fact claim or imply
during closing argument that the defendant had no insurance, the trial court would
have the discretionary authority to reopen the evidence and allow the introduction of
evidence of insurance coverage. See generally Young v. State, 292 Ga. 443, 444 (2)
(738 SE2d 575) (2013) (concluding that trial court acted within its discretion in allowing the reopening of the evidence based on comment made by defense counsel
during closing argument, and reciting that “whether to reopen the evidence is a
matter that rests within the sound discretion of the trial court”); Britten v. State, 221
Ga. 97, 101 (4) (143 SE2d 176) (1965) (“It is within the discretionary power of the
court to allow a witness to be sworn after the evidence on both sides has been
announced closed and the argument has been commenced[.]”) (citation and
punctuation omitted).