text:
    A02A1461.
    FULLER v. THE STATE.
    (570 SE2d 43)
   Blackburn, Chief Judge.

Randy S. Fuller appeals his convictions, following a jury trial, of driving under the influence of alcohol and marijuana to the extent that he was a less safe driver, possession of marijuana of less than one ounce, and possession of a firearm by a convicted felon. Fuller contends that the trial court erred in (1) overruling his motion to suppress because the officer did not have probable cause for the traffic stop, (2) denying his motion for a directed verdict on the marijuana possession charge, and he also argues that (3) there was insufficient evidence to support the verdict of driving under the influence of alcohol and marijuana. For the reasons set forth below, we affirm in part and reverse in part.

We note that Fuller fired his attorney on the day of the trial after being warned of the dangers of this action by the trial judge, and over his advice not to do so. The trial court required Fuller’s attorney to sit with him during the trial and provide advice. Fuller insisted on exercising his constitutional right to represent himself. Fuller was tried by a jury and convicted. Because Fuller was not informed of his appellate rights, he was granted the right to file an out-of-time appeal in Floyd County Superior Court. Counsel was appointed to represent him on appeal.

“In reviewing [Fuller’s] challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation and footnote omitted.) Kelly v. State.

So viewing the evidence, the record shows that at approximately 10:15 p.m. on December 17, 1999, John Blalock, a Floyd County police officer, observed a small pickup truck with a broken taillight traveling on Huffaker Road, with a Floyd County posted speed limit of 40 mph. The officer observed that the vehicle did not maintain a steady speed, but radically fluctuated between 30 and 50 mph. The officer stopped the truck to investigate. The vehicle was driven by Fuller and contained a passenger. Upon approaching the truck, the officer detected a mild odor of alcoholic beverages and marijuana. The officer testified that Fuller’s hands and voice shook, he avoided eye contact, and he was nervous. Fuller consented to an alco-sensor test, which indicated positive for alcohol. Blalock administered four sobriety tests, concluded that Fuller was under the influence of alcohol and marijuana, and arrested him for DUI. After the officer read the implied consent warning, Fuller became belligerent and refused a urine test. When the officer returned to the truck to speak with the passenger, he observed an open bag containing bullets on the front seat. Incident to Fuller’s arrest, Blalock searched the truck. Three guns and more ammunition were located in the vehicle during the search. In addition, a plastic bag with marijuana seeds was found in the pocket of a coat in the vehicle. Blalock determined that the coat belonged to Fuller rather than the passenger based on its size. No other drugs or drug paraphernalia were discovered.

1. Fuller argues that the trial court erred in overruling his motion to suppress because the State did not have probable cause for the traffic stop and that the stop was pretextual. He apparently bases this contention on the fact that he was not given a traffic citation for the broken taillight. He contends that the variation in his speed was due to the fact that he was traveling on a curvy, hilly road at night.

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Punctuation omitted.) State v. Bute.

Blalock testified that he stopped Fuller for a broken taillight and the fluctuation in the speed of his vehicle. The broken taillight provides probable cause for the traffic stop since it constituted a valid traffic violation under OCGA § 40-8-23. The United States Supreme Court has held that the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Further, a stop is not rendered invalid under the Fourth Amendment by the officer’s subjective intentions. Whren v. United States. Similarly, we noted in Hines v. State (in which the traffic violations were equipment violations as in the present case) “the stop of a vehicle is authorized if an officer observes the commission of a traffic offense” and even if the motorist ultimately was not cited for the violation for which he was stopped. Id. at 477. Thus, Fuller’s motion to suppress arguing the stop was pretextual must fail. Smith v. State.

2. Fuller asserts that there was insufficient evidence to support a verdict of driving under the influence of alcohol and marijuana to the extent he was a less safe driver. Here, the State had the burden of showing that Fuller had consumed alcohol and marijuana to the extent that he was a less safe driver. The State may offer the opinion testimony of police officers to make this showing. Stone v. State. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Tanner v. State.

In this case, testimony of the arresting officer provided sufficient evidence from which a jury could conclude that Fuller had consumed alcohol and marijuana to the extent that he was a less safe driver. He testified that he detected the odor of alcohol and marijuana when he approached the truck. On cross-examination, he also indicated that Fuller, himself, smelled of marijuana. Further, the jury was authorized to infer from Fuller’s refusal to take a urine test that it would reveal the presence of alcohol and marijuana in Fuller’s system. Aldridge v. State. The officer provided not only his observations of Fuller’s fluctuation in driving speed as evidence that he was less safe to drive, but also his opinion that Fuller failed the sobriety tests and his scrutiny of Fuller’s behavior, his shaky hands, and voice. Therefore, under the standard of Jackson v. Virginia, the evidence supports Fuller’s DUI conviction. Tanner, supra. See also Martin v. State (holding evidence sufficient to authorize finding that the defendant was under the influence to the extent that he was a less safe driver where the officer testified that the defendant was unsteady on his feet, his eyes were bloodshot, a strong odor of alcohol permeated his body and clothes, the alco-sensor test was positive, he refused to submit to field sobriety tests, and he shouted obscenities at him).

3. Fuller’s final enumeration of error is that the trial court should have granted his motion for a directed verdict on the marijuana possession charge because there was no positive identification of the seeds found in the coat pocket as marijuana. No lab tests were conducted on the seeds. At trial, the arresting officer gave his opinion, based on his experience, that the seeds were marijuana because of their shape, color, and smell. Next, the State offered a Floyd County police investigator and evidence custodian as an expert on identifying marijuana. He testified that he was certified to analyze marijuana samples, but had no training specifically on marijuana seeds, and that if he were given seeds of the same size, he could not guarantee he would be able to identify the seeds with certainty. He testified that the three tests he used on green, leafy materials to identify them as marijuana were not available to identify seeds as marijuana, and that the only real way to tell if the seeds were marijuana was to plant them and see what grew. He indicated that the only particular characteristics they had were size, shape, surface texture, and colorations; he had not noticed any particular odor to the seeds themselves. Upon Fuller’s objection to the investigator’s further testimony as an expert in identification, the trial court excused the witness.

The State relies on Atkinson v. State, in which we held that identification testimony of experienced officers was admissible, and expert testimony based on scientific tests is not required to establish a substance is marijuana. Further, the State points out that the credibility of witness testimony lies within the discretion of the jury rather than this Court.

In the present case, the testimony of the two officers presents circumstances similar to those in Adkinson v. State and Phillips v. State, in which we held the evidence was insufficient to support a conviction. In Adkinson, supra at 271 (1) (a), although a detective testified to his belief that the substance was marijuana, a chemist stated he could not testify beyond a reasonable doubt that the substance was marijuana without testing it, and an investigator testified that there are a lot of leafy substances that look like marijuana. Based on the evidence presented, we held that the defendant’s conviction for possession of marijuana with intent to distribute could not stand. Likewise, in Phillips, supra, the sheriff’s testimony that he thought plants were marijuana was insufficient to support the possession of marijuana conviction in light of an expert’s testimony that a marijuana plant was similar in appearance to other hemp plants. Specifically, we stated:

Although the sheriff was permitted to state in his inexpert opinion that these small plants were marijuana, this statement is insufficient to exclude “every other reasonable hypothesis save that of the guilt of the defendant.” This conclusion is demanded as a matter of law in view of the testimony of the expert that a marijuana plant is similar in appearance to other hemp plants.

(Emphasis supplied.) Id.

Here, the testimony by the investigator, who was qualified as an expert to identify marijuana, that he would be unable to conclusively identify the seeds as marijuana contradicts Officer Blalock’s identification of the seeds. Further, unlike the situation in Atkinson, supra, no other drugs or drug paraphernalia were discovered on Fuller’s person or in his truck. Without further evidence identifying the seeds as marijuana, we cannot say the testimony would be sufficient to exclude “every other reasonable hypothesis save that of the guilt of the defendant.” The testimony of the officer that he smelled the odor of marijuana on the defendant and the fact that the defendant refused to take the urine test support the jury’s determination that Fuller was under the influence to the extent that he was a less safe driver, but do not identify the nature of the seeds and are not, therefore, sufficient to exclude every other reasonable hypothesis except that the seeds were marijuana. Accordingly, it was error for the trial court to deny the motion for directed verdict, and Fuller’s conviction for possession of less than an ounce of marijuana must be reversed.

Decided July 30, 2002.

Teddy L. Henley, for appellant.

Bryant G. Speed II, District Attorney, Charles S. Cox, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Miller, J., concur.

        Kelly v. State, 242 Ga. App. 30, 31 (1) (528 SE2d 812) (2000).

        State v. Bute, 250 Ga. App. 479 (552 SE2d 465) (2001).

        Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996).

        Hines v. State, 214 Ga. App. 476 (448 SE2d 226) (1994).

        Smith v. State, 240 Ga. App. 150, 151 (1) (522 SE2d 744) (1999).

        Stone v. State, 248 Ga. App. 190, 191 (1) (546 SE2d 787) (2001).

        Tanner v. State, 225 Ga. App. 702, 703 (484 SE2d 766) (1997).

        Aldridge v. State, 237 Ga. App. 209, 212 (1) (515 SE2d 397) (1999).

        Jackson v.Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Martin v. State, 216 Ga. App. 25 (453 SE2d 498) (1995).

        Atkinson v. State, 243 Ga. App. 570 (531 SE2d 743) (2000).

        Adkinson v. State, 236 Ga. App. 270 (511 SE2d 527) (1999).

        Phillips v. State, 133 Ga. App. 392, 393 (210 SE2d 858) (1974).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A1555.
    THURMAN v. THE STATE.
    (570 SE2d 38)
   Blackburn, Chief Judge.

Torandall Antwan Thurman appeals his conviction by a jury of aggravated assault, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He contends that the trial court erred in (1) refusing to sever the charge of possession of a firearm by a convicted felon from the other charges and (2) failing to give the jury instructions limiting the purpose for which his prior conviction could be considered, and he also argues that (3) admission of his prior conviction improperly influenced the jury into convicting him of aggravated assault and hijacking a motor vehicle. For the reasons set forth below, we affirm.

Viewed in the light most favorable to thé verdict, the record shows that, on the evening of March 4, 2001, Wendy Clark drove her car to an Amoco station in Griffin to fill her gas tank. Her four-year-old son, Anthony, was strapped in on the passenger side. As Clark finished filling the tank, she saw Thurman come around the comer of the station. Thurman first went past her car but then turned around, opened the car door on the passenger side, and jumped into the car, sitting on Anthony. As Clark ran around to the passenger side, Thurman slid into the driver’s seat. Clark pulled her son from the car, but when she tried to grab the car keys from the ignition, Thurman pointed a .38 caliber pistol at her. Clark retreated, and Thurman sped away in her car. Thurman crashed Clark’s car into a tree and a private residence two blocks from the Amoco station. When the police arrived, they found the pistol and Thurman, injured and trapped, in the car. At trial, Thurman admitted that he had the gun and that he had taken the car, but said that he had done so to avoid being killed by unidentified assailants who were pursuing and shooting at him.

1. Relying on Head v. State, Thurman contends that the trial court erred in refusing to sever the charge of possession of a firearm by a convicted felon from the remaining charges. He argues that, in failing to sever the charges, the trial court allowed the State to introduce his prior conviction for theft by taking a motor vehicle and that the introduction of this prior conviction impermissibly placed his character into evidence.

In Graham v. State

the Georgia Supreme Court ruled that where a defendant is charged both with possession of a firearm by a convicted felon and with a more serious offense which is unrelated in the sense that proof of the former is not required to prove the latter, the trial must be bifurcated to prevent evidence of the defendant’s prior felony conviction from influencing the jury unnecessarily.

Id. On the other hand, as the Head court explained,

[i]n cases where the count charging possession of a firearm by a convicted felon might be material to a more serious charge — as, for example, where the offense of murder and possession are charged in one indictment, and the possession charge might conceivably become the underlying felony to support a felony murder conviction on the malice murder count of the indictment — the trial need not be bifurcated.

Head, supra at 432 (3) (d). Here, because proof of the charge of possession of a firearm by a convicted felon neither supported nor was in any way material or necessary to proof of the charges of aggravated assault, motor vehicle hijacking, or possession of a firearm during the commission of a crime, we must agree with Thurman that the trial court erred in not bifurcating the trial. “However, . . . the error was harmless in the context of the overwhelming evidence establishing [Thurman’s] guilt of” the aggravated assault, hijacking, and possession of a firearm during the commission of a crime. Graham, supra at 619 (2). See also Stone v. State (“[i]n this case, however, the evidence of guilt is so overwhelming that it is unlikely that the introduction of the prior conviction contributed to the guilty verdict”).

2. In his next enumeration of error, Thurman argues that the trial court erred in failing to give limiting instructions to the jury regarding the admission of his prior conviction for felony theft of a motor vehicle. This argument must fail since Thurman “neither objected nor made a request for limiting instructions at the time the convictions were placed in evidence.” Bowden v. State. See also Pyburn v. State.

Decided July 30, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Robert H. English, Assistant District Attorneys, for appellee.

3. In his final enumeration of error, Thurman maintains that admission of his prior conviction for theft by taking a motor vehicle impermissibly influenced the jury into convicting him of aggravated assault and hijacking a motor vehicle. There is no merit to this argument, which is nothing more than a restatement of the argument advanced in Thurman’s first enumeration of error. As we stated in Division 1, the evidence of Thurman’s guilt was overwhelming. In light of this overwhelming evidence, proof of the prior conviction did not place Thurman’s character in issue to such an extent as to affect the verdict on the charges of aggravated assault, motor vehicle hijacking, and possession of a firearm during the commission of a crime. Baker v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Head v. State, 253 Ga. 429 (322 SE2d 228) (1984).

        Graham v. State, 185 Ga. App. 617, 618-619 (2) (365 SE2d 482) (1988).

        Stone v. State, 253 Ga. 433, 435 (3) (321 SE2d 723) (1984).

        Bowden v. State, 270 Ga. 19, 20 (2) (504 SE2d 699) (1998).

        Pyburn v. State, 175 Ga. App. 158, 159 (2) (332 SE2d 899) (1985).

        Baker v. State, 214 Ga. App. 640 (1) (448 SE2d 745) (1994).


text:
    A02A1710.
    THOMPSON v. UNITED CREDITORS ALLIANCE CORPORATION et al.
    (570 SE2d 60)
   Blackburn, Chief Judge.

Following dismissal of his defamation action against United Creditors Alliance Corporation and Risk Management Alternatives, Inc., Billy Thompson, acting pro se, appeals, contending that the trial court erred by finding that he had failed to participate in discovery in good faith by failing to appear twice for a scheduled deposition. For the reasons set forth below, we affirm.

As an initial matter, Thompson has waived his right to raise his contentions with this Court because his brief contains no enumerations of error, citations to the record, or controlling authority. See Court of Appeals Rule 27. Moreover, even if Thompson had not abandoned his contentions, the record supports the trial court’s finding that he wilfully refused to attend his scheduled deposition on two occasions, and “[a] trial court’s finding that a party has wilfully failed to comply with [his] discovery obligations will not be reversed if there is any evidence to support it.” (Punctuation omitted.) Dyer v. Spectrum Engineering (trial court properly dismissed suit by pro se plaintiff who faxed a single sentence letter on eve of deposition that she would not attend).

Decided July 30, 2002.

Billy Thompson, pro se.

Elarbee, Thompson & Trapnell, Brent L. Wilson, Richard M. Escoffery, for appellees.

Thus, the trial court, in this case, appropriately dismissed Thompson’s action as “[r]efusal to be deposed is grounds for dismissal under OCGA § 9-11-37 (d).” King v. Bd. of Regents &c. of Ga.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Dyer v. Spectrum Engineering, 245 Ga. App. 30, 33 (2) (537 SE2d 175) (2000).

        King v. Bd. of Regents &c. of Ga., 238 Ga. App. 4, 5 (3) (516 SE2d 581) (1999).


author: Smith, Presiding Judge.

text:
    A02A0355.
    ELLERBEE v. THE STATE.
    (569 SE2d 902)
   Smith, Presiding Judge.

Clarence Ellerbee was tried for four counts of deposit account fraud and one count of theft by deception. He was convicted solely of the crime of theft by deception. Following the denial of his motion for new trial, Ellerbee filed this appeal in which he contests the sufficiency of the evidence. He also contends that his acquittal on the other charges necessitated his acquittal on the theft by deception charge. Because we find that the record lacks proof of all the essential elements of the crime of theft by deception, we reverse.

Construed to support the verdict, the evidence shows that after working in retail automotive sales for more than 25 years, in October 1997, Ellerbee began a used car business known as Ellerbee Auto Sales. One of the primary suppliers of vehicles for Ellerbee’s used car business was Bill Heard Chevrolet (Bill Heard or BHC). Between October 1997 and December 1999, Ellerbee purchased vehicles worth approximately $1,500,000 from Bill Heard for resale. On a regular basis, Ellerbee would submit bids on vehicles received by Bill Heard as trade-ins. If Bill Heard accepted the bid, Ellerbee would give Bill Heard a draft for the car and then recondition the car for resale on his own lot. The draft could be presented to a bank for payment only when combined with the vehicle title and other documents. By custom, the drafts were not presented for payment. Instead, when Bill Heard completed the title documents for a vehicle, which could require several weeks, Ellerbee would pick up the title work, retrieve his draft, and then pay Bill Heard by check. In this same manner, Ellerbee routinely would buy several cars at a time from Bill Heard. For more than two years, Ellerbee paid the dealership without any problems.

In the latter part of 1999, Ellerbee’s used car business began experiencing cash flow problems due to sluggish sales and tax deficiencies. In December 1999 and January 2000, three checks allegedly written by Ellerbee on the business checking account and made payable to Bill Heard or BHC failed to clear the bank. These were: check no. 2024, dated December 22, for $23,500; check no. 2099, dated January 14, for $23,350; and check no. 2119, dated January 21, for $28,300.

During the relevant period, Angela Myers was the employee at Bill Heard responsible for collecting checks and performing the tag and title work for wholesale deals. Myers explained that the first check that failed to clear the bank was deposited too soon as a result of a mistake on her part. Myers testified that “[w]e had [a] verbal agreement that — when I trained for the position, the girl before me said that she — it was agreed that they held Bunky’s [Ellerbee’s nickname] checks for two to three days.” Myers testified that when she told Sparky Allen, her direct supervisor, about her error in failing to hold the check for a few days, he told her not to worry about it. Myers testified that Allen knew about the agreement with Ellerbee to delay cashing his checks and to hold them for a short period, usually a few days. Myers testified that the arrangement to hold Ellerbee’s checks had been in place when she started work at Bill Heard, and she testified that “pretty much on a weekly basis” Ellerbee’s checks were held for later deposit. According to Myers, the January 14 check was held and not deposited until January 20.

The general manager at Bill Heard, Steve Kash, testified that Ellerbee had “a long-term relationship with Bill Heard Company” and had “bought a lot of vehicles from us.” Kash confirmed that Ellerbee had “two years of history of him holding good to all of his money” and that Bill Heard had never previously had “a bounced check from Mr. Ellerbee.” Kash confirmed that on December 22, Ellerbee had brought check no. 2024 to the dealership. Kash admitted the check was held for about two weeks and testified, “We deposited the check on January the 4th.” Kash testified that when the second check came, “I didn’t know about the first check, that it wasn’t going to be sufficient funds, until I’d already taken the second check.” But, when the third check was accepted, Kash admitted that he knew “I had two bad checks” and so “I didn’t deposit it immediately because we had some verbal commitments that it would be made good.” The dealership held the third check, no. 2119 dated January 21, until March 7. Kash denied the existence of a company policy to hold checks for wholesalers and testified that he did not agree to hold any of these checks before depositing them. Kash testified that after the first bad check, Ellerbee had said, “I’m going to bring you in 10,000 within a week or so; and I’ll bring you in some more money by the end of the month.” In response, Kash had said, “Well, bring it down here and let’s get this thing cleared up quickly.” According to Kash’s testimony, Ellerbee said that “by the end of the month, I’ll bring you, you know, the balance of that check or whatever,” but he did not do so. According to Kash, “and that was the extent of our agreement, if any was there, to bring in the money for the checks.” At some point, Kash realized that despite Ellerbee’s reassurances, the checks would not be made good, and “the commitments were not going to come to fruition.” Kash was asked, “Do you oversee all of the operations at Bill Heard?” Kash responded, “I certainly do, but I’m certainly not aware of all of the billing procedures.”

None of the vehicles was returned to the dealership, primarily because Ellerbee was “floor planning” the vehicles on his used car sales lot. Floor planning is the practice of pledging the titles of vehicles that are held out for sale on a used car lot to banks and finance companies to obtain cash and operating money before the cars are actually sold to buyers. Ellerbee explained that it was not unusual for retail dealers like him to use money from current sales to pay for the cars previously purchased from wholesalers. According to Ellerbee, when the money came in, he paid off the cars that he had bought, “whether it be floor plan companies or Bill Heard or whoever.” Ellerbee testified that he tried to pay Bill Heard for the cars but could not do so and tried to arrange a payment plan. According to Ellerbee, “In January [2000] I pulled my retirement, my 401 of 78,000 dollars and put it into my business.” Despite the infusion of all of the funds in his individual retirement accounts into the business, by April 2000, Ellerbee had lost $250,000 and was forced to close his doors.

The trial court directed a verdict on Count 1 since that check had been replaced by another check. Although the jury acquitted Ellerbee of the remaining three counts of deposit account fraud, it convicted Ellerbee of theft by deception.

1. Ellerbee contends that the guilty verdict was not supported by the evidence. He asserts that the State failed to prove all the essential elements of the crime of theft by deception. He claims that he did not intend to write bad checks but simply lacked the ability to fund them when the checks were presented to the bank for payment.

The offense of theft by deception requires: (1) obtaining property by any deceitful means or artful practice; (2) with the intention of depriving the owner of the property. OCGA § 16-8-3 (a). The indictment charged Ellerbee with committing theft by deception in that

between the 10th of December and the 7th of March, the defendant obtained property of Bill Heard Chevrolet, to wit: automobiles, by deceitful means or artful practice and with the intention of depriving said owner of said property, to wit: the defendant created another’s impression of an existing fact which was false and said accused knew was false, to wit: the defendant paid for said automobiles with checks and implied that said checks were valid, but he knew that they would not be honored by the drawee bank. . . .

The gravamen of theft by deception “lies in obtaining the property of another by intentionally creating a false impression as to an existing fact or past event. Creating a false impression as to a future event, particularly, in this case, by a promise of future payment, is not sufficient.” Mathis v. State, 161 Ga. App. 251 (288 SE2d 317) (1982) (conviction reversed where defendant persuaded grocer to let her have groceries worth $47.86 upon her promise to pay for them the following Friday, a promise she failed to keep).

In Harrell v. State, 192 Ga. App. 876, 877 (2) (386 SE2d 676) (1989), this court determined that evidence showing the defendant had purchased a new car by writing a check on a nonexistent bank account was sufficient to sustain a conviction for theft by deception. In Harrell, the “bank draft” that Harrell submitted as payment for a vehicle was a complete fabrication. Therefore, when Harrell obtained the vehicle he did so by using deceitful means to intentionally deprive the owner of its property. Similarly, in Ramey v. State, 239 Ga. App. 620, 622 (1) (521 SE2d 663) (1999), this court found sufficient evidence of theft by deception when the defendant deceived an unwary purchaser into purchasing a stolen 1966 Mustang by using a falsified bill of sale and by altering the vehicle identification number.

Here, the record lacks evidence of a scheme to defraud or deceitful means or artful practice used to deprive Bill Heard of its property at the time the checks were submitted. Compare Harrell, supra. Ellerbee had a two-year history of “holding good,” on all of his checks while purchasing approximately $1,500,000 worth of vehicles from Bill Heard. Ellerbee testified that at the time he wrote the checks to Bill Heard it was his intention to pay for the vehicles. No evidence showed otherwise. How Ellerbee or Bill Heard could have foreseen that the sales volume of Ellerbee’s used car business would plummet and that the December and January sales would not suffice to cover the expenditures incurred in December 1999 and January 2000 is not clear. Moreover, Kash admitted holding the third check for six weeks, to await the arrival of funds in the account. As Kash explained, “Well, the second check was right on the heels of the first check. The third check, it was apparent very quickly that the third check was not going to be any good because the first two were bad. So that’s why I didn’t deposit it right away.”

The bank statements of Ellerbee Auto Sales, Inc. from December 1999 and January 2000 document the shortfall in revenue and show that other checks Ellerbee wrote to the dealership did, in fact, clear the bank. Defense Exhibits 7 and 8 show that Ellerbee Auto Sales continued to purchase vehicles during December 1999 and January 2000, not only from Bill Heard but from Atlanta Auto Auction and other wholesalers. These monthly statements indicate that during December 1999 and January 2000, the same time frame that the three checks payable to Bill Heard failed to clear the bank, Ellerbee had written seven other checks payable to Bill Heard Chevrolet, BHC, Bill Heard, Bill Heard Olds, and Bill Heard Oldsmobile that did, in fact, clear the bank and were honored in full. These various checks to the dealership total more than $45,000.

The jury acquitted Ellerbee of all charges of deposit account fraud, indicating that the jury did not believe the State proved that Ellerbee “delivered an instrument for the payment of money on a bank . . . for a present consideration, to wit: automobiles knowing that said check would not be honored by the drawee.” The State has pointed to no evidence, and we have found none, that shows that Ellerbee used deceitful means or artful practice intentionally to defraud Bill Heard of its property at the time that he submitted the three checks to Bill Heard for the vehicles. Compare Ludden v. State, 176 Ga. App. 109 (335 SE2d 428) (1985) (defendant concocted scheme in which he paid for airline tickets with checks on closed accounts or with insufficient funds, then cancelled the flights and obtained refunds from the airline). No evidence shows that at the time Ellerbee wrote the checks to Bill Heard, the dealership was induced to part with its property since Ellerbee already had the vehicles and some of the titles when he submitted the checks to Bill Heard. Compare Harrell, supra.

Even if Ellerbee had repeatedly promised to make the checks good or to come into the dealership to pay part of the balance, and did not do so, a promise of future performance cannot serve as the basis of a theft by deception prosecution. Croy v. State, 133 Ga. App. 244, 247 (211 SE2d 183) (1974).

The reason for the rule regarding existing or past events is that if the party to whom the representation was made chose to rely upon the promise as to a future contingency, he is not deceived by deceitful means or artful practice, but his loss results from his absolute confidence in the party making the promise.

(Citation and punctuation omitted.) Robinson v. State, 198 Ga. App. 431, 433 (401 SE2d 621) (1991). The element of a false representation must bear on an existing fact or past event and not future performance. Elliott v. State, 149 Ga. App. 579, 581 (254 SE2d 900) (1979). “A mere promise to pay the purchase price in the future is not criminally actionable.” Harris v. State, 141 Ga. App. 213, 216 (3) (233 SE2d 21) (1977). For this reason, any promises, reassurances, or representations made by Ellerbee that he would make the checks good could not as a matter of law constitute theft by deception. See Robinson, supra (insufficient evidence of theft by deception because investors did not rely on any misrepresentation of an existing fact, as opposed to a prediction of future performance). In fact, the jury’s conclusion that Ellerbee was not guilty of delivering a check “knowing that said check would not be honored” demonstrates the absence of proof of this essential element. All the other elements of deposit account fraud were shown without dispute.

Decided July 11, 2002

Reconsideration denied July 31, 2002.

Brace W. Luquire, William J. Mason, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Robert B. Bicker staff II, Assistant District Attorneys, for appellee.

The State’s reliance upon Hammitt v. State, 183 Ga. App. 382 (359 SE2d 4) (1987), is misplaced. In that case, unlike here, the defendants wrote three checks for $16,200 on an account in which only $200 had ever been deposited. In that case, the defendants had devised a scheme to obtain vehicles knowing full well that the checks could not possibly be honored and fully intending to defraud the owner of his property. But here, no scheme to defraud or deceitful means or artful practice was ever shown. Compare Ludden, supra (evidence proved scheme to purchase airplane tickets with checks on closed accounts, cancel the flights, and then obtain refunds); see Arnold v. State, 210 Ga. App. 843, 847 (437 SE2d 844) (1993) (defendant deliberately made false representations to investors as to his ownership of collateral to induce investments). On the contrary, as Ellerbee testified and as the bank statements confirm, Ellerbee continued to purchase and to sell cars not only from Bill Heard but also from other wholesalers in a futile effort to keep his used car business afloat. Ellerbee testified that he infused all of his retirement funds into the business in an attempt to keep it going. Compare Harrell, supra at 876 (defendant created counterfeit document to purchase vehicle). Because the record contains r>.o evidence that Ellerbee employed a scheme to defraud or used deceitful means or artful practice to deprive Bill Heard of its property, proof of every essential element of the offense of theft by deception is lacking. See Mathis, supra. Therefore, Ellerbee’s conviction for theft by deception must be reversed.

2. In light of this holding, we need not address the remaining issue.

Judgment reversed.

Eldridge and Ellington, JJ, concur.

       The checks from Ellerbee’s two business accounts varied in designating the payee as Bill Heard Chevrolet, Bill Heard, BHC, Bill Heard Olds, or Bill Heard Oldsmobile.

       Check no. 2024 made payable to BHC for $23,500 and dated December 22, was not signed by Ellerbee but instead bears the signature of Amber Ellerbee.

       On December 10, Bill Heard accepted check no. 2000 for $23,500, but on December 13, Ellerbee replaced it with check no. 2024.

       The Regions Bank monthly closing statement issued on December 31, 1999, shows that check no. 1934 for $19,500 to Bill Heard Chevrolet, dated November 19, 1999, cleared on November 30, 1999; check no. 1972 to BHC for $10,250, dated December 2, 1999, cleared on December 7, 1999; check no. 1973 to BHC, dated December 2, 1999, for $14,600 cleared on December 14, 1999; and check no. 1999 for $4,600 to Bill Heard Olds, dated December 10, 1999, cleared on December 24,1999. The Regions Bank monthly closing statement issued on January 31, 2000, shows that check no. 2056 for $14,500 to Bill Heard, dated December 29, 1999, cleared on January 11, 2000, and check no. 2089 for $1,200 to Bill Heard Oldsmobile, dated January 10, 2000, cleared on January 13, 2000.

       A bank closing statement from February 29, 2000, for a different business checking account of Ellerbee Auto Sales shows that check no. 1048 to Bill Heard Chevrolet for $4,500, dated January 21, 2000; check no. 1055, dated February 1, 2000, to Bill Heard Chevrolet for $9,350; and check no. 1060, dated February 4, 2000, to Bill Heard Chevrolet for $133.18 were all honored by the bank.

       The March 2000 bank statement shows two deposits from IRAs, a $55,000 deposit and a $7,000 deposit from IRAs. These deposits indicate that Ellerbee was still trying to inject money into the business in February 2000.


author: Ellington, Judge. Pope, Presiding Judge, Eldridge, Judge,

text:
    A02A0599.
    THE STATE v. PERKINS.
    (569 SE2d 910)
   Ellington, Judge.

The State appeals an order of the Whitfield County Superior Court sustaining William Thomas Perkins’ plea of former jeopardy and barring the instant vehicular homicide prosecution. Because this prosecution is barred by Perkins’ prior conviction of the underlying lesser included offense of reckless driving, we affirm.

1. On November 2, 2000, Perkins was involved in an automobile collision that resulted in the death of Brenda Joyce Crider. A sheriff’s deputy arrested Perkins and charged him in separate citations with vehicular homicide and reckless driving. Even though the deputy wrote “Superior Court” on the reckless driving citation, the Whitfield County Probate Court processed the citation instead of binding it over. On November 7, 2000, deputies took Perkins from jail to answer the reckless driving charge. Without benefit of counsel, 18-year-old Perkins pleaded guilty to the charge and was convicted of the offense.

On April 24, 2001, the district attorney indicted Perkins for reckless driving, OCGA § 40-6-390 (a), and for felony vehicular homicide, OCGA § 40-6-393 (a). At arraignment, Perkins filed a plea in bar on former jeopardy grounds. The district attorney responded with a motion to set aside Perkins’ prior reckless driving conviction based upon OCGA § 40-6-376 (d). The trial court sustained the plea in bar, and the State timely brought this appeal under OCGA § 5-7-1 (a) (3).

The State does not contest that, but for the application of OCGA § 40-6-376, the instant prosecution would be barred on former jeopardy grounds. As the superior court correctly found, Perkins’ reckless driving conviction is a lesser included offense of the vehicular homicide offense for which he was indicted. Brock v. State, 146 Ga. App. 78, 82 (245 SE2d 442) (1978); OCGA §§ 16-1-6; 40-6-390; 40-6-393 (a). “[A] conviction on a lesser-included offense bars subsequent trial on the greater offense.” (Citations and punctuation omitted.) State v. Burroughs, 246 Ga. 393, 394 (271 SE2d 629) (1980); see also OCGA §§ 16-1-7 (a) (1); 40-6-376 (c). The State contends, however, that applying OCGA § 40-6-376 (d), Perkins’ reckless driving conviction is “null and void” and therefore does not trigger double jeopardy protection.

The State argues that because the Whitfield County Probate Court lacked jurisdiction to try Perkins on his felony vehicular homicide citation, it also lacked jurisdiction to try him on the underlying, lesser included misdemeanor reckless driving charge which arose out of the same events. Unfortunately, the plain language of OCGA § 40-6-376 (d) does not support this argument. The statute provides:

No court, other than a court having jurisdiction to try a person charged with a violation of Code Section 40-6-393, shall have jurisdiction over any offense arising under the laws of this state or the ordinances of any political subdivision thereof, which offense arose out of the same conduct which led to said person’s being charged with a violation of Code Section 40-6-393 and any judgment rendered by such court shall be null and void.

(Emphasis supplied.) OCGA § 40-6-376 (d). Because the Whitfield County Probate Court has jurisdiction to try misdemeanor vehicular homicide cases charged under OCGA § 40-6-393 (b), the probate court is, by definition, included among the courts “having jurisdiction to try a person charged with a violation of Code Section 40-6-393.” OCGA § 40-6-376 (d). Because the legislature made no distinction between misdemeanor and felony grades of vehicular homicide under OCGA § 40-6-393 when it drafted OCGA § 40-6-376 (d), we must assume that it intended to include both grades. By its plain language, OCGA § 40-6-376 (d) did not divest the WTiitfield County Probate Court of jurisdiction to try Perkins on the reckless driving charge. Accordingly, Perkins’ reckless driving conviction was not “null and void,” and the trial court properly sustained Perkins’ plea in bar.

2. Perkins’ conditional motion to transfer this case to the Supreme Court is denied.

Judgment affirmed.

Andrews, P. J., and Barnes, J., concur. Pope, P. J., and Smith, P. J., concur specially. Ruffin and Eldridge, JJ., dissent.

Pope, Presiding Judge,

concurring specially.

I am constrained to agree with the result reached by the majority in this case, but do so reluctantly because I do not believe that the legislature intended the result here. To the contrary, I agree with the dissent that OCGA § 40-6-376 was enacted to avoid such a result. But I cannot agree with the dissent that the statute as written can be construed to effectuate that intent. Certainty of legislative intent cannot compensate for omissions or oversights in statutory drafting — we must abide by the statute as it is plainly written. Here, as the majority notes, the legislature failed to distinguish between misdemeanor and felony grades of vehicular homicide when it drafted OCGA § 40-6-376, and we cannot rewrite the statute to make such a distinction. This is a job for the General Assembly, not the courts.

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

Eldridge, Judge,

dissenting.

I respectfully dissent from the majority. The plain language of the statute demands the construction that the legislature obviously intended when the law was enacted 20 years ago.

“The initial rule of statutory construction is to look to the legislative intent and to construe statutes to effectuate that intent. OCGA § 1-3-1 (a).” With this principle in mind, OCGA § 40-6-376 (d) was enacted to prevent the type of scenario presented by this case, i.e., instances where — whether by inadvertence or chicanery — the lesser offense underlying a vehicular homicide gets separated from the homicide and disposed of in another court, thereby preventing prosecution on the vehicular homicide because of double jeopardy. From the plain meaning of the statute, the legislature intended that only a court with the jurisdiction to try a person on the vehicular homicide with which he is charged should be able to dispose of the offense underlying that charge. And, so, the statute states:

No court, other than a court having jurisdiction to try a person charged with a violation of Code Section 40-6-393, shall have jurisdiction over any offense . . . which . . . arose out of the same conduct which led to said person’s being charged with a violation of Code Section 40-6-393 and any judgment rendered by such court shall be null and void.

The plain language of OCGA § 40-6-376 (d) goes to a court’s ability to try a person who has been charged with a vehicular homicide violation. The language in the statute twice referring to a person charged with a violation cannot simply be ignored as mere surplus-age. And, although the special concurrence urges otherwise, it is not “rewriting the statute” to give meaning to all parts in order to effectuate the legislative intent. On the contrary, to ignore the plain language “to try a person charged with a violation of Code Section 40-6-393” and interpret the statute as stating “to try a violation of Code Section 40-6-393,” as the majority does, is to “rewrite the statute.” In my view, it is no answer at all to unnecessarily reverse a criminal conviction and then lay the onus on the General Assembly to rewrite a statute that has needed no revision for 20 years and which could still serve if the plain language thereof was honored. To me, the incongruity lies not in the language of the statute, but in the current interpretation of this Court.

In that regard, the heart of the majority’s reasoning is, and I quote from the majority, “[(1) since the] Probate Court has jurisdiction to try misdemeanor vehicular homicide cases charged under OCGA § 40-6-393 (b), [then, (2),] the probate court is, by definition, included among the courts ‘having jurisdiction to try a person charged with a violation of Code Section 40-6-393.’ ” However, the majority’s premise (1) is a statement of subject matter jurisdiction over a general class of case, but the majority’s conclusion (2) addresses the specific jurisdiction to try a person charged with a violation of vehicular homicide. This syllogism is invalid because the probate court is not “by definition included among the courts” with jurisdiction to try a person charged with a felony violation of OCGA § 40-6-393. The majority’s analysis begs the question that the statute requires the courts to ask in order to determine jurisdiction, “What is the violation a person has been charged with?” This is because OCGA § 40-6-376 (d) serves to divest a court of jurisdiction it might otherwise have, not confer it. And, as the statute states, the distinction is in the violation charged against a person.

Jurisdiction of the subject-matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs. As applied to the subject-matter of a suit, jurisdiction is always conferred by law, and ... if the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to hear and determine the issues involved.

In a criminal prosecution, the general class of case is identified by the charge. So, although a probate court may have general jurisdiction over misdemeanor vehicular homicides, as the majority asserts, whether the Whitfield County Probate Court is “a court having jurisdiction to try a person charged with a violation of Code Section 40-6-393” depends exclusively on the charge against the person. And it is the statute’s focus on the vehicular homicide violation with which a person has been charged that makes the distinction between “misdemeanor” and “felony” that the majority finds lacking. The statute’s plain language, “a court with jurisdiction to try a person charged with a violation of Code Section 40-6-393,” serves to divest a probate court of jurisdiction over an underlying misdemeanor offense when a person has been charged with a felony violation of OCGA § 40-6-393.

Decided July 15, 2002

Reconsideration denied July 31, 2002

Kermit N. McManus, District Attorney, for appellant.

Ralph M. Hinman III, for appellee.

In this case, Perkins was simultaneously charged with felony vehicular homicide under OCGA § 40-6-393 (a) and with misdemeanor reckless driving. The probate court disposed of the misdemeanor reckless driving offense, with its sentence to run consecutive to any sentence imposed on the pending charge of felony vehicular homicide. The probate court had no authority to dispose of the reckless driving offense, since it did not have jurisdiction to try Perkins on the charge of felony vehicular homicide, as required by OCGA § 40-6-376 (d). Accordingly, the probate court’s judgment entered on the reckless driving conviction is wholly void, and Perkins may be tried on the vehicular homicide. The grant of Perkins’ plea in bar should be reversed.

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

       The Whitfield Comity Probate Court has jurisdiction over misdemeanor traffic offenses only. OCGA § 40-13-21 (a).

       Ga. L. 1982, p. 1694, § 2 (d).

        Mikell v. State, 270 Ga. 467, 468 (510 SE2d 523) (1999).

       (Emphasis supplied.) OCGA § 40-6-376 (d).

        Tolbert v. Maner, 271 Ga. 207, 208 (518 SE2d 423) (1999).

       (Emphasis supplied.) Majority opinion, 256 Ga. App. at 855.

       (Citation, punctuation and emphasis omitted; emphasis supplied.) Nicholson v. State, 261 Ga. 197, 199 (4) (403 SE2d 42) (1991).

       See, e.g., id. at 200 (5) (b) (general class of case identified as “state traffic misdemeanor”).

       The General Assembly is empowered by the Constitution to define the jurisdiction of the state courts (Ga. Const, of 1983, Art. VI, Sec. Ill, Par. I).

       Reckless driving was charged as the underlying offense, rendering the vehicular homicide a felony. See OCGA § 40-6-393 (b).

       OCGA § 40-6-376 (d). See OCGA § 17-9-4.


author: Phipps, Judge. Mikell, Judge,

text:
    A02A0828.
    TITTLE et al. v. CORSO et al.
    (569 SE2d 873)
   Phipps, Judge.

Russell Tittle and his wife sued Gwinnett County Deputy Sheriff Paul Corso and the Gwinnett County Sheriff’s Department, alleging a variety of torts. The trial court granted Corso’s motion for summary judgment on the ground that he was entitled to official immunity from suit. The court also denied the Tittles’ motion to substitute the sheriff, in his official capacity, for the sheriff’s department. The Tittles appeal both rulings. We affirm because there is no evidence that Corso acted with actual malice and the sheriff was entitled to sovereign immunity.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant of summary judgment de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this light, the evidence shows that at about 1:00 a.m. on October 6, 1999, Corso was watching television at home, having just finished his shift with the sheriff’s department. He heard six to eight “loud popping noises” outside that he believed were gunshots. He looked out the window and saw a car with its emergency lights on, and he heard a broadcast over the police radio that shots had been fired and officers should “check the neighborhood.” Corso decided to respond to the call because “[i]t was so close to my house I was worried about it.”

Meanwhile, Tittle was driving his wife and two children home. The car began to backfire repeatedly, and Tittle switched to “back roads” because he was afraid that “[s]omebody’s going to think we’re out here shooting or something.” A short while later, the muffler exploded and caught fire, and the car shut off entirely. Tittle exited the car and began “kicking the muffler around” with half of his body under the car.

Corso pulled up in his patrol car, stopped near Tittle, and shone the patrol car’s spotlight and headlights onto Tittle. Corso approached Tittle with his gun drawn and told him to stand, put his hands in the air, and walk backward toward him. Tittle complied. Corso then ordered him to lie face down, placed a gun against his neck, and introduced himself. Corso searched him for weapons and found none. Corso testified that he had Tittle lie down because he had no handcuffs with him, and Tittle admitted that Corso did not hurt him.

While Tittle was lying down, his wife got out of the car and asked what was going on. Corso told her to get back in the car and that he would “explain it in a minute.” Then Corso had Tittle sit down cross-legged while he went to his patrol car to use the radio. Tittle tried to explain that he was having muffler trouble, but Corso told him, “Shut up. I’m in control.” According to Tittle, however, Corso “dispatched and told them that I was having car trouble.” Corso also requested backup.

Next, Corso helped Tittle to his feet and walked him over to the patrol car. Tittle testified that Corso did this not in a hurtful manner, but “just like any officer would.” Although Tittle testified that he was “scared,” he again denied that Corso hurt him. According to Tittle, Corso then “slammed me down on the hood and [said], Tf you fucking move, I’ll put my dog on you, and he’ll eat you up.’ ” Corso also told Tittle that “if I fucking moved, he’d blow my head off” and that more officers would arrive and would “treat you worse than I did.”

Corso left Tittle leaning over the hood of the patrol car, walked over to Tittle’s car, and asked his wife if there were any guns in the car. She said no, and Corso asked her to get out of the car. He then promised not to hurt the children, one of whom was sleeping, and leaned into the car and asked if there was a gun inside. The child who was awake “shook his head no.”

The backup officers arrived and ascertained that Tittle’s license check was clean and that no weapons were present. After offering the Tittles assistance, the officers permitted them to leave in their car.

Corso denies putting a gun to Tittle’s head or slamming him against the hood of his patrol car. He also maintains that Tittle did not initially tell him about the broken muffler. He further asserts that he never threatened to blow Tittle’s head off and that he did not use the expletive “fucking” during his confrontation with the Tittles.

Tittle sued Corso, alleging false imprisonment, aggravated assault, battery, intentional infliction of emotional distress, and trespass. Tittle’s wife also sued Corso, alleging intentional infliction of emotional distress and trespass. Finally, the Tittles sued the Gwinnett County Sheriff’s Department under a theory of respondeat superior. The trial court denied the Tittles’ motion to substitute the sheriff, in his official capacity, as Corso’s employer, ruling that the sheriff would be entitled to the defense of sovereign immunity, which had not been waived by the county. The trial court also granted Corso’s motion for summary judgment on the grounds that he was entitled to official immunity.

1. The Tittles argue that the trial court erred in granting summary judgment to Corso becáuse genuine issues of material fact exist as to whether his actions demonstrated actual malice. We cannot agree.

Corso was acting within the scope of his authority and performing an official discretionary function in investigating a “shots fired” call. Thus, he is entitled to official immunity from the Tittles’ claims, absent a showing that he acted with actual malice or intent to cause injury. The Tittles do not contend that Corso intended to injure them. They argue instead that his actions demonstrated actual malice. Actual malice, in the context of official immunity, means a deliberate intention to commit a wrongful or illegal act.

The Tittles concede that Corso’s actions up to the point of radioing for backup do not show any actual malice. They argue, however, that Corso’s subsequent use of unnecessary profanity and force do show actual malice because, at that point, Corso knew that Tittle was unarmed and merely had a problem with his muffler. Although we in no way condone Corso’s behavior, as described by the Tittles, we must conclude that, as a matter of law, it does not rise to the level of actual malice.

Tittle testified that after making the radio call, Corso helped him to his feet “just like any officer would” and escorted him to the patrol car. Although Corso still held his gun in his left hand, the Tittles did not testify — contrary to assertions in their brief — that Corso again placed the gun against Tittle’s neck. Tittle did testify that Corso threatened to shoot him or unleash his dog on him if he moved. In addition, Tittle testified that Corso “slammed” him against the patrol car. Thus, the actions alleged to constitute actual malice include the use of profanity, threats, and “slamming.”

Although profanity may be distasteful and insulting, we cannot conclude that it shows actual malice, particularly in the absence of any epithets or other words indicating any personal bias. As we noted in Woodward v. Gray, evidence demonstrating “frustration, irritation, and possibly even anger” is not sufficient to penetrate official immunity.

Nor are Corso’s alleged threats sufficient to establish actual malice. Corso said that he would injure Tittle if he moved. Thus, the threats were intended, on their face, to prevent Tittle from presenting a danger while Corso investigated his car, which might have contained weapons or other dangers. While it is true that Corso knew by then that Tittle was unarmed, we find no actual malice in Corso’s expressed desire that Tittle remain immobile while Corso’s attention was directed elsewhere. We are not prepared to say that an unarmed man cannot be dangerous, particularly to a lone officer in the middle of the night. The Tittles point out that the better course would have been for Corso to retrieve his handcuffs from the patrol car and restrain Tittle or place him inside the patrol car. But our task is not to decide, with the benefit of hindsight, what Corso should have done. We are concerned only with whether his behavior showed a deliberate intention to commit a wrongful act. Under the circumstances alleged by the Tittles, we find that Corso’s threats evidence no such intention.

Finally, Corso’s placement of Tittle against the hood of the police car does not show actual malice. “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Even accepting Tittle’s characterization of Corso’s action as “slamming,” that act — without more — does not show that Corso’s use of physical force was so excessive or unnecessary as to demonstrate a deliberate intent to do wrong.

We reiterate that we do not condone Corso’s alleged behavior. Tittle’s testimony that Corso “scared” him is understandable. But we cannot conclude that Corso’s profanity, threats, and “slamming” showed a deliberate intent to commit a wrongful act, as opposed to an effort to restrain Tittle while Corso continued to investigate and secure the scene. The trial court properly granted Corso’s motion for summary judgment on the basis of official immunity.

2. The Tittles also argue that the trial court erred in denying their motion to add the sheriff, in his official capacity, as a defendant. Having been sued in his official capacity, the sheriff can claim the defense of sovereign immunity to the extent there was no waiver. The Tittles contend sovereign immunity was waived pursuant to OCGA § 33-24-51 (b), which provides,

Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. . . .

OCGA § 33-24-51 (a) limits the immunity waiver to insurance covering liability “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county.” Whether an event arises from the “use” of a motor vehicle depends on the circumstances of the case.

[Procurement of insurance under this statute does not constitute a waiver of sovereign immunity in regard to damages caused by the county’s negligence not connected with motor vehicles. This point addresses the issue of causation in relation to a county’s liability for the negligent use of a motor vehicle. In that regard, the plaintiff in this tort action, as in any tort action, must prove causation and damages. With respect to causation, to recover damages in a tort action, a plaintiff must prove that the defendant’s action [misuse of a county vehicle] was both the cause in fact and the proximate cause of [the] injury.

The Tittles argue that their injury arose from Corso’s use of the patrol car because the headlights and spotlight were used to illuminate the area and because Corso placed Tittle against the hood of the car. But even assuming, without deciding, that OCGA § 33-24-51 is applicable in this case, where negligence was not alleged, we find that the patrol car was only remotely related to Corso’s alleged tortious conduct and that the Tittles’ injuries were not caused by Corso’s “use” of the patrol car, as contemplated by that Code section.

Having shown no waiver of sovereign immunity, the Tittles have failed to show that the sheriff might have been liable under the doctrine of respondeat superior for any alleged actions of Corso.

Judgment affirmed.

Andrews, P. J, Johnson, P. J, and Smith, P. J., concur. Blackburn, C. J., Miller and Mikell, JJ, dissent.

Mikell, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion as I find a genuine issue of material fact remains as to whether Corso acted with actual malice.

Decided July 9, 2002

Reconsideration denied July 31,2002

Summary judgment is properly granted where the evidence, including the pleadings and depositions, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The respondent should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.

During his deposition, Russell Tittle testified that when Corso lifted him up, he was scared, “because he told me if I fucking moved, he’d blow my head off.” Tittle further deposed that when he tried to explain to Corso about the muffler, Corso said, “Shut up. I’m in control.” According to Tittle, after Corso finished using the radio, he grabbed Tittle, picked him up, walked him over to the police car, slammed him down on the hood, and said, “If you fucking move, I’ll put my dog on you, and he’ll eat you up.” He also said, “There’s going to be more officers here, . . . and they’re going to treat you worse than I did.” Two officers arrived, and Tittle testified that he overheard Corso comment that he had not brought his dog. “So all this time I’m thinking he was going to have his dog eat me up, and he never even had a dog,” Tittle deposed.

Actual malice, in the context of official immunity, is defined simply as a “deliberate intention to do wrong.” It has long been held in criminal law that the intention with which an act is done is peculiarly a matter for the jury to decide. In the case at bar, the evidence, when construed most favorably to the Tittles, permits an inference that Corso acted with malice.1 believe that actual malice can be inferred from the use of profane, opprobrious language, particularly when coupled with threats, a display of force, and a drawn weapon. In the final analysis, it is for a jury, not an appellate court, to weigh the evidence in this case and determine whether Corso “deliberately intended to do wrong.” Accordingly, I would reverse the grant of summary judgment to Corso.

I am authorized to state that Chief Judge Blackburn and Judge Miller join in this dissent.

Larry E. Stewart, for appellants.

Kristina H. Blum, for appellees.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See Gardner v. Rogers, 224 Ga. App. 165 (480 SE2d 217) (1996) (deputy sheriff dispatched to investigate an alleged assault is performing discretionary duties). A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Todd v. Kelly, 244 Ga. App. 404, 406 (1) (535 SE2d 540) (2000).

       Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d); see Todd, supra.

        Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999); Merrow v. Hawkins, 266 Ga. 390, 391-392 (2) (467 SE2d 336) (1996).

       241 Ga. App. 847, 851, n. 4 (527 SE2d 595) (2000).

       (Citation omitted.) Graham v. Connor, 490 U. S. 386, 396 (109 SC 1865, 104 LE2d 443) (1989). These additional words from the Graham Court, while not directly applicable because that case involved alleged violations of federal constitutional law rather than state tort law, are nonetheless instructive:
      Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.
      (Citation and punctuation omitted.) Id. at 396-397.

       See Woodward, supra.

       See Stone v. Taylor, 233 Ga. App. 886, 887 (1) (506 SE2d 161) (1998); Coffey v. Brooks County, 231 Ga. App. 886, 892-893 (2) (e) (500 SE2d 341) (1998), rev’d on other grounds, Rowe v. Coffey, 270 Ga. 715-716 (515 SE2d 375) (1999).

       (Emphasis supplied.)

        Harry v. Glynn County, 269 Ga. 503, 504 (1) (501 SE2d 196) (1998).

       (Citations and punctuation omitted; emphasis in original.) Lincoln County v. Edmond, 231 Ga. App. 871, 873 (1) (501 SE2d 38) (1998).

       See id.

       OCGA § 9-11-56 (c).

        Bakhtiarnejad v. Cox Enterprises, 247 Ga. App. 205, 209 (1) (541 SE2d 33) (2000).

       (Citation and punctuation omitted.) Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999).

        Climpson v. State, 253 Ga. App. 485, 486 (1) (559 SE2d 495) (2002).

       Cf. Woodward v. Gray, 241 Ga. App. 847, 851 (c) (527 SE2d 595) (2000).


author: Eldridge, Judge.

text:
    A02A1373.
    CANAL INSURANCE COMPANY v. LIBERTY MUTUAL INSURANCE COMPANY.
    (570 SE2d 60)
   Eldridge, Judge.

This is an appeal from cross-motions for summary judgment in a workers’ compensation subrogation suit brought by Canal Insurance Company c/o O’Steen Adjusting Services, the workers’ compensation insurer, who did not intervene in the employee’s tort suit against Liberty Mutual Insurance Company, the third-party tortfeasor’s insurer, although it was on notice. Liberty Mutual settled the tort suit with the injured employee for a recovery for pain and suffering damages only, and there were substantial economic damages for lost wages and medical expenses remaining uncompensated in excess of the benefits paid by Canal. The trial court denied Canal’s motion and granted Liberty Mutual’s motion, because Canal’s derivative claim was lost when the employee’s suit was dismissed with prejudice. Absent intervention in such tort suit to protect its subrogation right, Canal could never carry its burden to prove that the employee had been fully compensated for his injuries and damages, thus barring any right of subrogation. We affirm.

On July 2, 1997, Robert E. Wilson, an employee of Thomas Trucking Company, sustained personal injuries arising out of the scope of his employment through the negligence of Harry’s Farmers Market, Inc. and sued Harry’s. Liberty Mutual insured Harry’s and entered a defense for its insured to the suit. Canal paid Wilson’s medical expenses and compensation benefits for the injuries arising from the occurrence.

Although Canal was on notice of the third-party tort action by the employee, Canal chose not to intervene in Wilson’s tort suit. Liberty Mutual was on notice that Canal had a workers’ compensation subrogation lien for the economic benefits that Canal had paid. Prior to trial and entry of judgment, Liberty Mutual settled the suit with Wilson for only his noneconomic damages, i.e., his pain and suffering, for $100,000, and Wilson dismissed the suit with prejudice. At the time of settlement, Wilson had special damages of $133,000 of which $40,000 were unreimbursed lost wages. Canal had paid $27,186.16 in medical expenses and $52,650 in disability benefits. Liberty Mutual was of the opinion that the settlement with Wilson was less than full compensation for his injuries and damages, both economic and non-economic from evidence in the suit.

Upon learning of Wilson’s settlement, Canal sued Liberty Mutual on the theory that Liberty Mutual failed to honor Canal’s workers’ compensation subrogation lien by settling the case with Wilson, although no one had made any agreement to protect Canal’s subrogation lien.

1. Canal contends that the trial court erred in holding a workers’ compensation insurance carrier must intervene in a claimant’s action to protect and enforce its subrogation lien. We do not agree.

The General Assembly through OCGA § 34-9-11.1 creates a statutory subrogation lien in derogation of common law in the employer or workers’ compensation insurer against any third-party tortfeasor, causing the employee’s injury or recovery. The Act reads in pertinent part:

(b) In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, . . . and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

“[A]ny claim by [the] employer or its insurer asserting subrogation rights against a third-party tortfeasor to the extent of workers’ compensation payments made to [the employee] arises solely by operation of statute.” Ga. Star Plumbing v. Bowen, 225 Ga. App. 379, 381-382 (484 SE2d 26) (1997); see also K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (1) (401 SE2d 5) (1991); Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 761 (437 SE2d 616) (1993). If the right to a subrogated lien or apportionment of attorney fees does not arise under benefits paid under Georgia law, then no subrogation lien arises, because any such rights must come from within the language of the statute. Johnson v. Comcar Indus., 252 Ga. App. 625, 627 (556 SE2d 148) (2001); Simpson v. Southwire Co., 249 Ga. App. 406, 409 (1) (548 SE2d 660) (2001). Prior to the 1995 amendment, this section applied exclusively to disability benefits and medical expenses and excluded death benefits, because such death benefits were not specifically included under the Act. Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796 (2) (471 SE2d 504) (1996). Thus, the Act must expressly grant a right to a subrogation lien and provide a method to enforce such right for the courts to recognize and enforce such right.

The Act only provides that the employer, insurer, or employee under OCGA §§ 9-11-24 and 34-9-11.1 have the right to intervene in a personal injury action brought by the employee to protect its subrogation rights or by the employer/insurer. Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995). Failure to allow intervention to protect the subrogation lien or the employee’s rights constitutes an abuse of discretion by the trial court. Id. at 28; see also Payne v. Dundee Mills, 235 Ga. App. 514, 515 (1) (510 SE2d 67) (1998). If the employee does not sue within one year, then the employer or insurer may sue in its own name or the name of the employee with the right of intervention now in the employee. OCGA § 34-9-11.1. However, if the employer has not sued in the name of either the employee or its own name under the Act or intervened in the employee’s suit, then the employer or insurer lacks standing to appeal the dismissal of the action, because the employer or insurer was not a party to the suit. Astin v. Callahan, 222 Ga. App. 226, 228 (2) (474 SE2d 81) (1996). Such are the exclusive procedures to protect and perfect the subrogation lien.

The right of an employer or insurer to seek subrogation under OCGA § 34-9-11.1 is not absolute. Because that right “arises solely by operation of statute,” the insurer must follow the specific procedures set forth in the statute in order to protect its subrogation lien. The statute provides that an insurer “may intervene” in a lawsuit by the injured employee against a third-party tort-feasor to “protect and enforce” its subrogation lien against the tort recovery. If the injured employee does not sue the third-party tort-feasor within one year of the date of injury, then the insurer may “assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” In either case, the insurer’s right of action against a third party is derivative of the injured employee’s claim; the insurer has no right to pursue its own independent action against the third party.

(Punctuation and footnotes omitted.) Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 782 (2) (542 SE2d 171) (2000). In this case, Canal did neither; it only gave notice and waited without any agreement to protect its subrogation lien from anyone. See Astin v. Callahan, supra at 228-229.

Where the employee settled a lawsuit and released the third-party tortfeasor prior to receiving any workers’ compensation payments, which gave rise to a subrogation lien, the settlement and release extinguished any and all future subrogation rights later asserted by the employer or its insurer; notice of a pending workers’ compensation claim by the tortfeasor did not give rise to a possible future subrogation lien where no payments had been made at the time of settlement. Ga. Star Plumbing v. Bowen, supra at 381-382. However, where the employee received benefits but settled his personal injury claim against a tortfeasor without filing suit and where the tortfeasor had no knowledge of the workers’ compensation subrogation lien, the employer or insurer had no claim against the tortfeasor by way of a subrogation action, but the subrogation lien would attach to the recovery by settlement. Rowland v. Dept. of Admin. Svcs., 219 Ga. App. 899 (466 SE2d 923) (1996); accord Ga. Star Plumbing v. Bowen, supra at 382-383.

However, in Rowland v. Dept, of Admin. Svcs., supra at 902, language not necessary to the holding in such case said: “[a]s a matter of general law, where the wrongdoer settles with the insured without the consent of the insurer with the knowledge of the insurer’s payment and right of subrogation, such right is not defeated by the settlement.” (Punctuation and emphasis omitted.) See Anthem Cas. Ins. Co. v. Murray, supra at 782-783. Such general law came, not from workers’ compensation law, but from insurance policy subrogation applicable to collision coverage and relied upon Vigilant Ins. Co. v. Bowman, 128 Ga. App. 872, 874 (198 SE2d 346) (1973), which held in part: “Ihjistorically, and as a matter of general law, the insurer’s right to subrogation is an equitable one and does not rest on any relation of contract or of privity between the insurer and the wrongdoer. The right is derived from the rights which the insured has and is limited to those rights.” Such general law has no application to this statutory workers’ compensation subrogation lien, because OCGA § 34-9-11.1 is purely a statutory right of subrogation and requires that the subrogation lien be enforced against the third-party tortfeasor either by intervention in the employee’s suit, by suit against the tortfeasor within the statutory terms, or by a claim against the recovery; but the subrogation lien is lost against the third party if there is no suit or intervention in the employee’s suit, and the subrogation lien may only be asserted against the recovery in the hands of the employee after he has been made whole. Anthem Cas. Ins. Co. v. Murray, supra at 782-783. Canal mistakenly relied upon this dicta. Such language in Rowland v. Dept. of Admin. Svcs., supra at 902, or other decisions, as it may apply to OCGA § 34-9-11.1, is specifically disapproved. See Anthem Cas. Ins. Co. v. Murray, supra at 782-783.

Further, relied upon by Canal, in Prudential Commercial Ins. Co. v. Michigan Mut. Ins. Co., 261 Ga. 637 (410 SE2d 30) (1991), the Supreme Court of Georgia answered certified questions pertaining to subrogation of personal injury protection under the now repealed no-fault law, OCGA § 33-34-5 (a) (1), which had nothing to do with the interpretation of OCGA § 34-9-11.1 other than it was also a statutory subrogation right in the insurer. As a legal matter, since the statutes and statutory purposes were dissimilar, such case is distinguished from the case before us, because under OCGA § 34-9-11.1, the General Assembly was concerned that the employee be fully compensated, while under no-fault, the General Assembly wanted to hold down insurance costs to reduce premiums by allowing recovery against the tortfeasor. Id. at 640. Likewise, Southern Gen. Ins. Co. v. Cotton States Mut. Ins. Co., 193 Ga. App. 240, 241 (387 SE2d 435) (1989); Poole Truck Line v. State Farm &c. Ins. Co., 163 Ga. App. 755 (294 SE2d 570) (1982); and Martin v. Commercial Union Ins. Co., 935 F2d 235 (11th Cir. 1991), argued by Canal, deal with no-fault insurance under a different statutory scheme.

The General Assembly required that the subrogation lien be asserted, perfected, and satisfied in whole or in part in the trial court, because the trial court had to determine if the employee had been made whole. Even when the lien is asserted against the recovery, this must be done in the trial court. The trial court and not a jury must determine if the employee has been fully and completely compensated by workers’ compensation benefits and by a recovery from a third-party tortfeasor. Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 340 (2) (535 SE2d 511) (2000); accord Anthem Cas. Ins. Co. v. Murray, supra at 780-781 (1). Since subrogation for workers’ compensation benefits was unknown at common law, then neither party has a right to a jury determination of whether or not the subrogation lien attaches or full and complete compensation for the employee was obtained. Liberty Mut. Ins. Co. v. Johnson, supra at 340. Where the employer or insurer has intervened, the bifurcation of the tort action trial and determination of tort damages first is appropriate to avoid revealing to the jury that the employee has already recovered a collateral source, the workers’ compensation benefits. Hammond v. Lee, 244 Ga. App. 865, 868-869 (4) (536 SE2d 231) (2000). In the first portion of the bifurcated trial, a special verdict form rather than a general verdict should be used to determine what recovery is returned for medical expenses, lost wages, and pain and suffering, because the subrogation cannot be satisfied out of a noneconomic recovery. North Bros. Co. v. Thomas, 236 Ga. App. 839, 840-841 (513 SE2d 251) (1999); Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 335 (494 SE2d 29) (1997); Dept. of Admin. Svcs. v. Brown, supra at 28. Where there is an economic recovery, the trial court must determine if the benefits paid exceed the recovery or if there exist economic damages unrecovered.

Without such a special verdict form, [trial and] appellate courts could not determine what portions of the award the jury applied toward economic and noneconomic losses, and, as a result, it would be impossible to determine whether [an employee] had been fully compensated for his losses. The outcome in many such situations would be that a workers’ compensation subrogation lien could not be enforced. It is the responsibility of the workers’ compensation provider to protect its interest by intervention and special verdict requests.

(Citation omitted.) North Bros. Co. v. Thomas, supra at 841. However, either by the agreement of the parties or by waiver in failing to timely object, the trial court can submit the issue of full and complete compensation to the jury to render an advisory finding of fact. See generally Hammond v. Lee, supra; Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194 (518 SE2d 194) (1999). But, under the statute, the legal duty to make the determination that the employee has been made whole still remains with the trial court, even if it uses a jury to advise it in reaching such determination. Liberty Mut. Ins. Co. v. Johnson, supra at 340; Anthem Cas. Ins. Co. v. Murray, supra at 780-781.

2. Canal contends that the trial court erred in interpreting the term “fully and completely compensated” in OCGA § 34-9-11.1 (b). We do not agree.

The General Assembly, in creating for the first time the right of subrogation of workers’ compensation benefits in the employer or its insurer of the employee’s tort action against a third-party tortfeasor, imposed conditions precedent to such subrogation right:

the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

(Emphasis supplied.) OCGA § 34-9-11.1 (b). “[A] primary legislative concern was that the injured employee first be made whole.” Bartow County Bd. of Ed. v. Ray, supra at 335; accord Powell v. Daniels Constr. & Demolition, 232 Ga. App. 422, 424 (3) (501 SE2d 578) (1998). Full and complete damages as compensation must be determined within tort damage law; however, this means “fully and completely compensated for his losses within the meaning of OCGA § 34-9-11.1 (b), not within the meaning of general principles of tort law [as to defenses].” (Emphasis omitted.) Homebuilders Assn. of Ga. v. Morris, supra at 196. “This construction of OCGA § 34-9-11.1 (b) is buttressed by the legislative concern evidenced in the statute that the injured employee be made whole — regardless of any fault on his part — before the employer is allowed to recover the amount of workers’ compensation benefits paid out.” Id.

In an analogous area of interpretation of subrogation rights and the meaning of full and complete compensation, the Supreme Court of Georgia has held in regard to the insurer’s subrogation rights under an insurance policy that such rights as a matter of public policy are subordinate to the insured’s paramount right to complete compensation for his losses prior to any subrogation.

[W]e conclude that Georgia public policy strongly supports the rule that an insurer may not obtain reimbursement unless and until its insured has been completely compensated for his losses. Indeed, Georgia public policy encourages insurance coverage which assures no less than full compensation to the insured, while at the same time preventing the insured from recovering more than is necessary to make him whole. Furthermore, Georgia law has long recognized that subrogation, a doctrine originating in equity, is founded upon the dictates of refined justice. Its basis is the doing of complete, essential, and perfect justice between all the parties, without regard to form, and its object is the prevention of injustice. These considerations of public policy and equitable principles of subrogation are so strong that some jurisdictions declare that any insurance policy provision which modifies the complete compensation rule is unenforceable and void.

(Citations and punctuation omitted.) Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647-648 (482 SE2d 325) (1997) (reimbursement of medical coverage under insurance policy); accord Simpson v. Southwire Co., supra at 408 (an OCGA § 34-9-11.1 case).

The trial court alone must determine if the employee has been fully and completely compensated; neither party has a right to a jury determination of whether the injured employee has been fully and completely compensated under subsection (b). Liberty Mut. Ins. Co. v. Johnson, supra at 340 (2); see also Anthem Cas. Ins. Co. v. Murray, supra at 780-781 (1). Thus, unless clearly erroneous, this Court must defer to the trial court’s determination of this factual determination. Hartford Ins. Co. v. Fed. Express Corp., 253 Ga. App. 520, 522 (559 SE2d 530) (2002). Therefore, the trial court has the authority to reduce an employee’s general award including personal injuries to cover the subrogated lien where the trial court has determined that the employee has first been made whole. Powell v. Daniels Constr. & Demolition, supra at 423 (3). However, the trial court may not consider the affirmative defenses of contributory/comparative negligence/assumption of risk in determining whether or not the employee had been fully and completely compensated for his injuries, because the employee’s total economic and noneconomic losses make up the full and complete compensation unreduced by such defenses under the Act. Homebuilders Assn. of Ga. v. Morris, supra at 196. In this case, all of the evidence shows that the recovery was restricted to noneconomic damages and that unrecovered economic damages exceeded the subrogation lien.

Neither the employer nor the insurer can assert a subrogation lien against noneconomic damages, i.e., pain and suffering, where, under the Act, no noneconomic benefits were paid. Hammond v. Lee, supra at 868; North Bros. Co. v. Thomas, supra at 841. Where prior weekly lost wages exceeded the amount paid weekly for disability, the insurer was not entitled to a subrogation lien, because the employee had not been fully compensated by the recovery. Hammond v. Lee, supra at 867 (1).

Where the special verdict specified a certain amount for medical expenses and another sum certain for pain and suffering and there was no evidence that the employee’s medical expenses exceeded such sum, the employer could enforce the subrogation lien against the medical award up to the limit of its medical subrogation lien but could not enforce the lien against the noneconomic pain and suffering award. North Bros. Co. v. Thomas, supra at 841-842. Thus, where the recovery for medical expenses was more than sufficient to fully and completely compensate for all medical expenses incurred as a result of the injury, i.e., medical expenses paid by the insurer, by the employee, and for unpaid expenses, the insurer was entitled to a subrogation lien against the medical recovery up to the total of its lien. Hammond v. Lee, supra at 868 (2).

Here, in this case, Canal did not intervene or otherwise seek to protect in court its derivative subrogation right, and there is no evidence that Wilson’s recovery by settlement with the tortfeasor consisted of anything other than noneconomic damages, to which Canal could not assert a subrogation lien. Unlike Anthem Cas. Ins. Co. v. Murray, supra at 780-781, where the evidence allowed the trial court to determine full compensation from the employee’s own briefs and suits, Canal’s inaction made it impossible for Canal to carry the burden of proof so that the trial court could determine if Wilson had been fully and completely compensated for all his economic and noneconomic losses. Therefore, Canal, by its inaction, made it impossible to prove that Wilson had been fully and completely compensated. North Bros. Co. v. Thomas, supra at 841. Thus, summary judgment against Canal and for Liberty Mutual was appropriate. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided August 1, 2002.

Sartain, McKay & Crowell, Frank R. McKay, for appellant.

Finch, McCranie, Brown, Hendrix & Sullivan, Richard W. Hendrix, Michael A. Sullivan, for appellee.

Judgment affirmed.

Blackburn, C. J., Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Ruffin, Barnes, Miller, Ellington, Phipps and Mikell, JJ, concur.


text:
    A02A1162.
    KNIPHFER et al. v. MEMORIAL HEALTH UNIVERSITY MEDICAL CENTER, INC. et al.
    (570 SE2d 16)
   Blackburn, Chief Judge.

In this medical malpractice action, Krenson Edward Kniphfer and Jennifer Harry Kniphfer appeal, contending that, because the damages awarded by the jury exceeded the damages requested in settlement demand letters sent to the defendants pursuant to OCGA § 51-12-14 (b), the trial court erred by denying a request for prejudgment interest. For the reasons set forth below, we reverse.

The record shows that, on January 29, 2001, Krenson Kniphfer and Jennifer Kniphfer filed suit against Memorial Health University Medical Center, Inc. for medical malpractice and loss of consortium, respectively. On May 24, 2001, the Kniphfers sent a settlement demand for $6,000,000 to Memorial pursuant to OCGA § 51-12-14. On June 20, 2001, the Kniphfers filed a motion to add MPPG, Inc., a wholly owned subsidiary of Memorial, as a party defendant. The Kniphfers filed this motion after they learned through discovery and investigation that MPPG was directly responsible for the actions of the surgeon who treated Mr. Kniphfer. Memorial had not been forthcoming with this information. Then, on July 12, 2001, the Kniphfers sent a settlement demand to MPPG which was identical to the earlier one sent to Memorial. Neither Memorial nor MPPG, who shared the same attorney, responded to these settlement demands.

A pretrial conference was held on October 24, 2001. The defendants admitted liability for the first time at the pretrial conference. The consolidated pretrial order provides: “Defendants admit defendant MPPG, Inc. is liable to plaintiffs as the employer of Frank Davis, M.D. and defendant Memorial Health University Medical Center, Inc. is liable to [p]laintiffs under the theory of ostensible or apparent agency of Frank Davis, M.D.”

The Kniphfers raised settlement discussions again at the pretrial conference. In its order denying prejudgment interest, the trial court described these negotiations as follows:

The brief settlement discussions which took place during the pretrial conference on October 24, 2001, centered on a single demand for the payment of six million dollars ($6,000,000.00) as to both Defendants. None of the parties appearing before the Court on that date made any reference to a twelve million dollar ($12,000,000.00) demand. During those discussions, it was clear that all parties were working from a demand of six million dollars to resolve all claims as to all parties.

The settlement discussions were unsuccessful. Following a trial to determine damages only, a jury awarded the Kniphfers $6,250,000 ($5,250,000 to Mr. Khiphfer for malpractice and $1,000,000 to Mrs. Kniphfer for loss of consortium). At the conclusion of the trial, the Kniphfers requested prejudgment interest, which the trial court denied. The Kniphfers now appeal this ruling.

OCGA § 51-12-14 provides, in relevant part:

(a) Where a claimant has given written notice by registered or certified mail or statutory overnight delivery to a person against whom claim is made of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded. . . . (b) Any written notice referred to in subsection (a) of this Code section may be given on only one occasion and shall specify that it is being given pursuant to this Code section.

This statutory provision was enacted to encourage parties to settle matters similar to the one now before us.

The Unliquidated Damages [Interest] Act makes available to an injured party a coercive tool to offset injury and financial loss by encouraging a tortfeasor to make amends for his injurious conduct by making immediate payment short of litigation. If the tortfeasor does not take advantage of the opportunity to make his victim whole, the statute imposes a penalty, in effect, by authorizing the victim of the tort to collect damages in the form of interest from the time of the injury until the time the unliquidated damages become certain by verdict of the jury. As we view the intent of the statute, that award of interest from the time of injury to the date of judgment fulfills the purpose of the statute.

Williams v. Runion.

The Kniphfers properly triggered the prejudgment interest provisions of OCGA § 51-12-14. On May 24, 2001, they conveyed a settlement demand to Memorial, which was the only defendant known to the Kniphfers at the time because Memorial neither admitted liability nor identified MPPG as Dr. Davis’ employer. Subsequently, after learning about MPPG’s involvement through their own investigation, the Kniphfers repeated their settlement demand. The record makes it clear that, at all times, the Kniphfers were making a single demand for $6,000,000 for their injuries from either Memorial or MPPG. The only reason the Kniphfers ultimately had to send two demand letters was that Memorial and MPPG did not immediately admit their relationship with Dr. Davis.

The defendants argue that the trial court appropriately denied prejudgment interest because the two settlement demand letters sent by the Kniphfers made no reference to each other, and, pursuant to Bullman v. Tenneco Oil Co., the two letters must be construed as demanding $6,000,000 from each defendant (a total demand of $12,000,000). The defendants further argue that, as such, prejudgment interest should not be allowed because the amount of damages demanded in the aggregate exceeded the amount awarded by the jury. We do not agree.

Bullman is distinguishable from the matter at hand. In Bull-man, the plaintiff conveyed settlement demands to four completely separate defendants, and the same amount was not demanded of all four. We ruled:

Decided July 26, 2002

Reconsideration denied August 7, 2002

Thomas W. Malone, Rosser A. Malone, for appellants.

Brennan & Wasden, Joseph P. Brennan, Mark H. Glidewell, Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, for appellees.

Although the law in this state encourages the resolution in one action of all claims arising from a single occurrence or transaction, each letter sent by appellant offered to settle her claims by covenant not to sue in favor of the letter’s recipient, thus terminating the action as to that particular party. It is apparent from the demand letters that if any recipient had paid the sum demanded in the letter it received, that payment would not have ended the entire litigation, which would have continued against the other defendants until the total of the sums demanded from all was paid.

(Citations and punctuation omitted.) Id. at 409.

Unlike Bullman, all of the evidence in this case indicates that payment of the requested settlement amount by either party would have ended the litigation against both. Therefore, in this case, the Kniphfers are entitled to an award of prejudgment interest.

Judgment reversed.

Johnson, P. J, and Miller, J., concur.

        Williams v. Runion, 173 Ga. App. 54, 60 (5) (325 SE2d 441) (1984).

        Bullman v. Tenneco Oil Co., 197 Ga. App. 408, 410 (398 SE2d 311) (1990).