Lewis v. Emory University

Pope, Presiding Judge,

concurring specially.

I agree with Divisions 2, 3 and 4 of the opinion; I write separately with respect to Division 1.

I agree with the majority that because Lewis sought damages in excess of the primary coverage there was no reason to exclude St. Paul, as the excess carrier, from application of the rule from Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934). Accordingly, I agree that the court erred in failing to qualify the jury as to the officers, employees, stockholders and stockholder relatives of St. Paul Fire & Marine Insurance Company. And, I agree that the court’s post-verdict inquiry to the jurors was incomplete and failed to substitute for voir dire.

I write separately with respect to the majority’s suggestion that the requisite information should be gathered from jurors during voir dire without informing them that an insurance company is involved in the case. “[I]n this enlightened age, it can and should be presumed that prospective jurors already realize that liability insurance coverage is likely to be present in cases involving [medical malpractice claims]. [Cits.]” Arp v. Payne, 230 Ga. App. 840, 841 (497 SE2d 810) (1998) (Pope, P. J., concurring specially).

“I believe that the best approach would be to continue to qualify prospective jurors about any relationship they might have with any interested insurer, as is mandated by Atlanta Coach Co. v. Cobb, [supra]. After such qualification, however, to avoid any potential prejudice that might arise from the qualification itself, or the pro*821spective jurors’ own common knowledge, I would recommend that the trial court give specific limiting instructions that the existence or lack of insurance in a given case is not material and is not to be considered in reaching a decision in the case.” Arp v. Payne, 230 Ga. App. at 842 (Pope, P. J., concurring specially). See also Dalton v. Vo, 230 Ga. App. 413, 414 (497 SE2d 245) (1998) (Pope, P. J., concurring specially).

Decided November 3, 1998 Reconsideration denied December 18, 1998 William Q. Bird & Associates, William Q. Bird, Karin L. Allen, Dwyer, White & Sapp, J. Matthew Dwyer, Jr., for appellant. Long, Weinberg, Ansley & Wheeler, Frederick N. Sager, Jr., Anandhi S. Rajan, J. M. Hudgins TV, Johnathan T. Krawcheck, for appellee.

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