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Bruno's Supermarkets2/25/2005
On Application for Rehearing
This court's opinion of March 26, 2004, is withdrawn, and the following is substituted therefor.
Bruno's Supermarkets, Inc. ("Bruno's"), appeals from an order entered by the Jefferson Circuit Court granting the plaintiff Dorothy Massey's motion for a new trial. We reverse and remand.
On December 18, 2000, Massey, then 74 years old, was walking in the produce department of a Food World grocery store owned and operated by Bruno's when she stepped on a metal produce rack and fell, allegedly injuring her back and one leg. It is undisputed that a portion of Massey's medical expenses stemming from the alleged injuries were paid by Medicare and Blue Cross/Blue Shield of Alabama. On June 6, 2001, Massey filed a complaint against Bruno's in the Jefferson Circuit Court seeking damages for the injuries she allegedly sustained in the slip and fall.
Before the trial, Massey submitted a list of potential witnesses that included, among others, " epresentatives of Blue Cross/Blue Shield" and " epresentatives of Medicare." However, Massey did not call any of these individuals to testify at trial.
In its opening statement, counsel for Bruno's related to the jury that " ou will learn that [Massey's] medical bills ... have been paid by Medicare and Blue Cross/Blue Shield" and that "if [Massey] prove to you she have future medicals, thank goodness she has that health insurance and Medicare to take care of her, just like she did in this situation." Massey's counsel did not address the issue of reimbursement of medical expenses in his opening statement.
During the trial, upon questioning from her own counsel, Massey stated that her insurance, including Medicare, had paid some of her medical expenses that resulted from the slip and fall. Massey's counsel then asked her whether she paid premiums for her insurance, to which counsel for Bruno's objected, and the following exchange occurred:
"[BRUNO'S COUNSEL]: It's improper to ask about premiums for insurance. We acknowledge she has it. We acknowledge there are going to be some witnesses who come in here and talk about the subrogation aspect, but it's improper testimony for her to talk about it.
"[THE COURT]: Overruled.
After the trial court overruled Bruno's objection, Massey's counsel did not pursue an answer to his question concerning insurance premiums, but instead moved on to the following line of inquiry:
"[MASSEY'S COUNSEL]: If Bruno's were at fault and the jury awards your medical bills, do you know whether you will have to pay Medicare and Blue Cross back?
"[BRUNO'S COUNSEL]: Now, we object to that, Your Honor, because it is our understanding that both representatives of Blue Cross and Medicare will be here, and they're the best people to testify as to whether or not they are going to put forth a subrogation claim.
"[MASSEY'S COUNSEL]: Judge, she's not going to testify as to what is owed.
"[THE COURT]: You said the best evidence?
"[BRUNO'S COUNSEL]: Yes, sir. It is our understanding, according to [Massey's counsel], he was going to have representatives from Blue Cross and Medicare here to testify about their subrogation interest and to tell this Court how much they were going to be claiming. That's fine, but we think it is improper for Ms. Massey to do so without some type of documentation as to what was paid, what was written off, and how much may be owed on subrogation. So we object to her doing it.
"The best evidence would be either documents or testimony from those providers or those companies that say they may subrogate.
"
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