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VIRGINIA WARD v. JUANITA W. FOSTER

NOVEMBER 04, 1987

VIRGINIA WARD
v.
JUANITA W. FOSTER



BEFORE HAWKINS, P.J., ROBERTSON, AND SULLIVAN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Virginia M. Ward appeals from a final judgment in her favor against Juanita W. Foster for $3,500, later reduced by court order on a Miss.R.Civ.P. Rule 60(b)(5) motion to $1,808.50. We find her assignments of error unpersuasive and affirm.

FACTS

 On January 15, 1982, Ward was driving south and Foster was driving north on Highway 513 in Jackson County. Foster made a left turn in front of Ward at the Interstate 10 intersection, resulting in a collision and personal injuries to Ward. Foster had liability insurance coverage with Allstate Insurance Company.

 On April 27, 1984, Ward filed a complaint against Foster and Allstate. The circuit court dismissed the suit against Allstate.

 The jury returned a verdict of $3,500 and final judgment was rendered in favor of Ward for this amount on May 28, 1985. Thereafter, on June 28, Foster moved pursuant to Mississippi Rule of Civil Procedure (MRCP)60(b)(5) for relief from the judgment because of monies previously paid Ward by Allstate. At the hearing on this motion, it developed that Allstate had previously paid Ward $1,691.50 on her claim against Foster. In an order dated October 31, 1985, the circuit court reduced the verdict of the jury and the

 judgment thereon to $1,808.50.

 Ward appealed from the original and amended judgment.

 As necessary, we will cite and review the pertinent portions of the record in discussion of the assignments.

 LAW

 DISMISSAL OF SUIT AGAINST ALLSTATE

 Ward's claim that this was error is without merit. Westmoreland v. Raper and Commercial Union Insurance Companies, No. 56,913 (slip op. June 3, 1987).

 INFERENCE FROM PLAINTIFF'S FAILURE TO CALL A TREATING PHYSICIAN AS A WITNESS

 Following trial, by Instruction D-14-A, the court instructed the jury that the failure of Ward to call certain doctors, who had treated her for her injuries, as trial witnesses authorized the jury to infer that the doctors' testimony would have been unfavorable to the plaintiff.

 Ward does not contend that the instruction misstated the law, but argues that Foster was not entitled to any such instruction, because the medical privilege was waived as to these doctors. The record does not support Ward's argument.

 On July 27, 1984, Foster propounded interrogatories to Ward, which were answered on November 15. Interrogatories 9, 13 and 19, and their answers, as well as her answer to 23, follow:

 Interrogatory No. 9: Since the date of the accident herein in question, please state in specific detail if any doctor has rendered an opinion giving you any disability, please state what doctor, on what date, type of disability and reasons therefor.

 Answer: I am not aware of any opinions. Attorney objects: this is hearsay and medical information.

 Interrogatory No. 13: Do you waive the medical to a physicians, or nurses, or any hospital at which you have been confined? If you answer to this question is affirmative, please execute the attached waivers of medical privilege and return it with your answers to interrogatories.

 Answer: My attorney advises this is not a proper waiver of medical information; however, when the proper form is presented, it will be considered at that time.

 Interrogatory No. 19: In regard to payment of any medical, doctor, hospital or drug expenses relating to any injuries received in this accident, state: (a) Name and address of the person, firm, company or governmental agency making such payments; (b) an itemization of such payments and (c) the basis for such payments.

 Answer: Attorney objects as to collateral source.

 Interrogatory No. 23: The doctors who treated me will probably testify pertaining to my injuries.

 On January 22, 1985, defense counsel wrote plaintiff's counsel about her medical bills, treatment and waiver of the medical privilege. Plaintiff's counsel responded by letter of January 23, 1985, the second paragraph of which follows:

 If you would advise us as to what doctors you care to talk to, this writer will be happy to consider them on individual basis. This writer will waive medical as to Dr. LaCour, Dr. Buckley and Dr. Longnecker; however the writer request [sic] that he be present, or a representative of his office be present whenever any conversation is made with the physicians. The other doctors will be considered upon proper request.

 Defense counsel's response to this letter was acknowledged confusion. Plaintiff's counsel was asked: "has the medical privilege been waived or has it not? We're enclosing a copy of a medical waiver which we request your client sign and ...


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