McClellan v. Evans

Michael McClellan was struck and injured by a pickup truck driven by Kenneth Evans as McClellan was crossing the roadway between the parking lot and the entrance of a placeWal-MartplaceSupercenterin placeplaceValdosta. McClellan and his wife, Kelly McClellan, filed an action against Evans seeking damages for Michael McClellan’s personal injuries, medical expenses, and lost wages, and for Kelly McClellan’s loss of consortium. Following a trial, the jury found for Evans.1 On appeal, the McClellans contend that the trial court erred i in denying their pretrial motion requesting permission to ask Evans about his alleged agreement with the McClellans’ uninsured motorist insurance carrier; ii in limiting cross-examination of Evans concerning the alleged agreement; iii in failing to provide a curative instruction to the jury in light of defense counsel’s improper closing argument; iv in stopping their counsel’s closing argument; and v in limiting redirect examination of Kelly McClellan. For the reasons set forth below, we disagree and affirm. 1. The McClellans filed a pre-trial motion in limine in which, in addition to asking that certain evidence be excluded, they requested permission to ask Evans whether he entered into an agreement with their uninsured motorist insurance carrier, Georgia Farm Bureau Mutual Insurance Company, in exchange for Evans’s agreement to testify for the defense. The trial court denied the pretrial motion and then precluded cross-examination on the subject of the alleged agreement at trial. The McClellans contend that the trial court erred in doing so. We disagree.

The record shows that Georgia Farm was served with a copy of the complaint and answered in its own name. Georgia Farm withdrew its originally filed answer before trial and proceeded to defend the action in Evans’s name under the authority of OCGA § 33-7-11 d. Evans subsequently testified outside the presence of the jury as part of an offer of proof by the McClellans regarding an alleged agreement between Evans and Georgia Farm. Evans’s testimony showed that Georgia Farm had waived its right of subrogation against him.2 According to Evans, his original attorney had “resolved” the waiver and then asked him to “cooperate and be here when Georgia Farm needs me to be here. That’s all I was asked to do, and that’s why I’m here.”