author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A2729, A94A2730.
    SOUTHEAST ATLANTIC CARGO OPERATORS, INC. v. FIRST STATE INSURANCE COMPANY (two cases).
    (456 SE2d 101)
   Smith, Judge.

This case has a history of protracted and piecemeal litigation. Certain facts established in the prior litigation are necessary to understanding the issues involved in this appeal.

Kenneth Meyer, a stevedore foreman working for Southeast Atlantic Cargo Operators, Inc. (SEACO), was injured at a terminal warehouse operated by the Georgia Ports Authority (GPA) in Savannah. Meyer brought suit against GPA, which filed a third-party complaint against SEACO. SEACO had primary insurance coverage under a comprehensive general liability insurance policy issued by Midland Insurance Company with a policy limit of $500,000. It also had coverage under an umbrella policy issued by First State Insurance Company, which provided, except in certain situations not applicable here, up to $10,000,000 in excess liability coverage only above the threshold of $500,000. SEACO turned its defense of the Meyer litigation over to Midland.

Midland was declared insolvent during the pendency of the litigation on the Meyer claim. When Midland was declared insolvent, the Georgia Insurers Insolvency Pool (GIIP) became involved in that litigation, pursuant to the Georgia Insurers Insolvency Pool Act, OCGA § 33-36-1 et seq. However, when GIIP later declined to pay any judgment against SEACO, SEACO took over its own defense in the Meyer litigation.

SEACO then demanded that its excess insurance carrier, First State, “drop down” and assume primary coverage of SEACO in the Meyer litigation. First State refused to do so, and SEACO brought suit against First State on the issue of whether First State was required to provide such primary coverage. Southeast Atlantic &c. v. First State Ins. Co., 197 Ga. App. 371 (398 SE2d 264) (1990) (SEACO I). This court affirmed the trial court’s grant of summary judgment to First State in that case, holding that the insolvency of the primary insurer did not require First State to “drop down” and provide first-dollar coverage. Id. at 373.

GPA settled Meyer’s claim for approximately $1.3 million, and a trial was then held to determine the relative faults of all parties. See Ga. Ports Auth. v. Southeast Atlantic &c., 202 Ga. App. 318 (414 SE2d 232) (1991) (SEACO II). In that trial, GPA was found to be sixty percent negligent, the negligence of SEACO was determined to be thirty-five percent, and the remaining five percent negligence was attributed to Meyer. Id. This court affirmed. Id.

SEACO’s liability to GPA for the award to Meyer under the SEACO I judgment is $625,332.96. In 1992, SEACO and First State jointly satisfied this liability, with SEACO paying the first $500,000 of the principal amount of the judgment plus $115,065.30 in accrued post-judgment interest. First State paid the remainder of the principal amount of the judgment and $28,640.95 in accrued post-judgment interest. Both payments were made pursuant to an agreement that each party reserved its rights to proceed against the other and to claim reimbursement from the other. No claim was made by either party regarding the payment of the principal.

The present action was brought by SEACO against First State, alleging that First State was obligated to reimburse it for the post-judgment interest paid, because First State was required under the excess liability policy to pay all post-judgment interest. First State answered, denying it owed reimbursement to SEACO and counterclaiming for the return of the post-judgment interest it had paid. First State alleged that under the holding in SEACO I (the “drop down” litigation) and the terms of the Midland policy, SEACO was required to pay all post-judgment interest. Cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of First State and denied SEACO’s motion. In a supplemental order, the trial court made clear that summary judgment was granted in favor of First State on both the main claim and the counterclaim. SEACO filed a separate appeal from each order. The issues are identical in both appeals, and they are consolidated for review.

1. The issue presented in these appeals is whether First State is liable for all or any of the post-judgment interest. The trial court found that this issue was controlled by SEACO I (the “drop down” litigation). SEACO contends this was error. We do not agree with that contention, and we therefore affirm.

“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. Contrary to SEACO’s contention and that of the dissent, not every precise situation may be covered in the wording of every opinion. The opinion in SEACO I makes clear that First State is required to provide coverage under the excess liability policy only beyond the boundaries of the coverage that Midland would have been required to provide under the primary policy. Id. The omission of express and specific mention either in the opinion or during the course of the litigation in SEACO I of the issue of liability for post-judgment interest does not mean we are now free to decide the issue in direct contradiction of the holding in that case. Under SEACO I, SEACO itself is responsible for all obligations that would have been covered under the Midland policy.

Therefore, resolution of the question of whether First State is responsible for paying any post-judgment interest is dependent entirely on whether, under the terms of its policy, Midland was obligated to pay all or part of the post-judgment interest. If Midland was required to do so even if that obligation brought the amount of Midland’s coverage over the limits of the primary policy, then SEACO and not First State must bear the entire obligation. If, on the other hand, Midland was obligated under its policy to pay post-judgment interest only on the amount of principal under $500,000, then First State is not entitled to reimbursement of the post-judgment interest it paid on its share of the principal. Finally, if the Midland policy did not require that Midland pay any post-judgment interest, then SEACO is not obligated to do so, and the obligation must be borne entirely by First State. The crucial question here, then, is what the Midland policy provides as to this issue.

2. We turn, therefore, to the provisions of the Midland policy. Under the caption “Supplementary Payments,” the Midland policy provides that “the company will pay, in addition to the applicable limit of liability: ... all expenses incurred by the company, all costs taxed against the insured in any suit defended by the company and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon.” (Emphasis supplied.)

This is a “standard interest clause.” 8A Appleman, Insurance Law & Practice, § 4894.25, p. 80, n. 3. Its language could not be clearer or less ambiguous. Midland was obligated to pay principal only up to its policy limits. However, it was obligated to pay all post-judgment interest, even though that obligation brought its liability over the stated policy limits. The modern and prevailing view in jurisdictions across the country is that since the primary insurer controls the litigation, both on appeal and at trial, it is both proper and fair to place upon the primary insurer the burden of all interest accruing during that time. See generally 8A Appleman, supra at § 4894.25, pp. 75-77 and cases cited therein.

We are also persuaded by the reasoning in Weber v. Biddle, 483 P2d 155 (Wash. App. 1971), that it is the intent of the “standard interest clause” that the insurer will pay interest on the entire amount of the judgment until policy limits are paid or tendered or deposited in court. Evidence of this intent is found in the fact that “[t]he National Bureau of Casualty Underwriters formerly included a different clause in their form of standard policy, but subsequently changed the form to include the clause in issue here. In connection with this change, the bureau stated . . . : ‘Several court cases have held that an insurer’s obligation to pay interest extends only to that part of the judgment for which the insurer is liable. The respective rating committees have agreed that this is contrary to the intent. As a result, the wording with respect to payment of interest in [certain policies] has been restated, in order that it be entirely clear that all interest on the entire amount of any judgment, which accrues after entry of the judgment, is payable by the insurer until the insurer has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the insurer’s liability thereon.’ [Cit.]” Id. at 161.

Finally, this also comports with common sense. An insurer may avoid the obligation to pay post-judgment interest on the entire amount of the judgment by paying, or at least tendering, the judgment prior to appeal. That is certainly true where, as here, the insured itself retained its own counsel, was in control of the litigation, and was responsible for making such decisions. First State, as excess liability carrier, did not defend SEACO and had no obligation to do so. It did not make the decisions regarding appeal or payment of the judgment. Consequently, it is fair that SEACO, which did make those decisions (which would have been made by Midland but for its insolvency), should be responsible for interest on the entire judgment.

Although this precise issue apparently has never been decided in Georgia, it was assumed to be the rule in Ins. Co. of Pennsylvania v. Giles, 196 Ga. App. 271 (395 SE2d 833) (1990). Indeed, in his dissent in Giles, Judge Deen cited numerous foreign authorities holding that such clauses obligate an insurer to pay post-judgment interest even over the amount of the policy limits. Id. at 274-275. In Giles, however, a majority of this court found the insurer had no liability for post-judgment interest despite this general rule, because it had, in effect, timely tendered an amount toward the judgment equal to its policy limits.

Because responsibility rested with SEACO to pay those portions of the judgment that would have been paid by Midland, and because the Midland policy required it to pay all post-judgment interest, the trial court properly granted summary judgment in favor of First State both on SEACO’s claim and on the counterclaim.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson and Ruffin, JJ., concur. McMurray, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment affirming summary judgment on behalf of the excess liability carrier, First State Insurance Company, both as to the main claim and the counterclaim. Plaintiff Southeast Atlantic Cargo Operators, Inc. (“Southeast”) brought this contract action on an excess-coverage liability insurance policy issued to Southeast by defendant First State Insurance Company (“First State”), alleging that First State “is liable to [Southeast] in the amount of $115,065.30.” This dollar amount represents “accrued post[-]judgment interest . . .” which Southeast paid to the Georgia Ports Authority (“the Authority”) in its role as the Authority’s judgment-debtor. See Ga. Ports Auth. v. Southeast Atlantic &c., 202 Ga. App. 318 (414 SE2d 232). The complaint further alleged that First State was responsible for this sum “due to the insolvency of Midland Insurance Company,” Southeast’s primary insurer. See Southeast Atlantic &c. v. First State Ins. Co., 197 Ga. App. 371 (398 SE2d 264). First State denied the material allegations and counterclaimed for “the $28,640.95 paid by it for post-judgment interest that accrued on the [Georgia Ports Authority] judgment.”

First State subsequently moved for summary judgment both as to Southeast’s claim and its own counterclaim against Southeast. Specifically, First State asked for a “declaration] that First State has no obligation to pay any post-judgment interest to [Southeast] and . . . a money judgment against [Southeast] for the $28,640.95 in post-judgment interest that it paid to the [Georgia Ports Authority] on behalf of [Southeast].” In opposition, Southeast filed a cross-motion for summary judgment, arguing that “First State is responsible for all post-judgment interest awarded against [Southeast], [or] in the alternative, [that] First State is responsible for its pro-rata portion of post-judgment interest above the primary carrier’s insured limits.”

The following chronology is undisputed: In 1983, Southeast purchased a primary comprehensive general liability insurance policy from Midland Insurance Company with “limits of liability of $500,000.00.” About the same time, Southeast also purchased from First State an umbrella liability policy, providing up to $10,000,000 in excess liability coverage above the underlying coverage threshold of $500,000. In 1984, during the coverage period of the Midland primary policy, an employee of Southeast was injured on premises owned by the Georgia Ports Authority and leased to Southeast. On April 11, 1986, Midland Insurance Company was declared insolvent. In October 1987, the employee settled his tort action against the Georgia Ports Authority for approximately $1.3 million. In 1990, the Authority obtained a judgment for indemnification against Southeast for $625,332.96. This judgment is based on a jury verdict of proportionate fault among the Georgia Ports Authority (sixty percent at fault), Southeast (thirty-five percent at fault) and the employee (five percent at fault) for the employee’s injuries. In 1992, Southeast and First State jointly satisfied the Authority’s indemnification judgment. Southeast paid $500,000 of the principal amount of the judgment plus $115,065.30 in post-judgment interest. First State contributed “$153,973.91 which represented [the sum of] the principal amount of the judgment exceeding $500,000.00 ($125,332.96), plus post-judgment interest on that amount calculated from the date of the judgment ($28,640.95).” At the time of this payment, First State’s counsel confirmed in writing the mutual understanding of the parties that “this payment by First State and the payments by [Southeast] on the judgment do not constitute a waiver by either of them of any claims that either might have against the other that the other’s respective payment should have been greater under the terms of the policy number 00952473 issued by First State to [Southeast].”

The trial court granted First State’s motion and denied Southeast’s motion, ruling that the case sub judice was controlled by the “drop down” action, i.e., Southeast Atlantic &c. v. First State Ins. Co., 197 Ga. App. 371, supra. The trial court further ordered that Southeast “shall pay all of the post-judgment interest.”

1. It is my view that Southeast Atlantic &c. v. First State Ins. Co., 197 Ga. App. 371, supra, the so-called “drop down” action, is not controlling under the circumstances here. The doctrine of res judicata is inapplicable for the simple reason that the insured’s liability in indemnification was not fixed until this court’s subsequent decision in Ga. Ports Auth. v. Southeast Atlantic &c., 202 Ga. App. 318, supra.

The prior decision of this court in Southeast Atlantic &c. v. First State Ins. Co., 197 Ga. App. 371, supra, was that First State’s excess policy was not ambiguous and did not require it to “drop down” and provide so-called “first dollar” coverage where the named insured’s primary insurer had become insolvent. That decision is in the nature of declaratory judgment. However, it is not res judicata as to the issue in the cases sub judice, i.e., whether, under the unambiguous terms of that same policy, First State is responsible to its insured for post-judgment interest in any amount, after the limits of retained coverage of any primary liability insurance. This question was not ripe for decision and could not reasonably have been put in issue in the prior litigation even though it arises out of the same general subject matter. “The facts in the two records make, therefore, different cases, and a decision by this [C]ourt, upon one state of facts is not binding upon another. Therefore, [it is my view that,] the trial [court’s grant of summary judgment to First State cannot be sustained on the inapplicable ground] of res judicata. Bass Dry Goods Co. v. Granite City Mfg. Co., 116 Ga. 176 (3) (42 SE 415).” Sammons v. Tingle, 216 Ga. 814, 815 (3) (120 SE2d 124). See also Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719).

2. First State undertook the express contractual duty to “indemnify the INSURED for ULTIMATE NET LOSS, ... in excess of RETAINED LIMIT,... all sums which the INSURED shall be obligated to pay by reason of liability imposed upon the INSURED by law ... for damages and expenses, because of: . . . PERSONAL INJURY.” First State “shall be liable only for the ULTIMATE NET LOSS in excess of . . . the limits of liability indicated ... in the Schedule A of underlying insurance,” i.e., the $500,000 primary coverage which would have been provided pursuant to the Midland policy. Despite this express undertaking, the majority accepts First State’s argument that this court’s prior ruling that First State has no duty to “drop down” means that the named insured “steps into the shoes of [the insolvent primary insurer,] Midland and any duty that Midland had under the Midland policy now becomes a duty of [Southeast].” First State reasons that Southeast is responsible for all post-judgment interest pursuant to the “standard interest clause” in the Midland policy. As a result, it is argued that “any analysis of First State’s duties assumes the continued existence of the Midland policy[.]” In my view, this position ignores the express undertaking of the excess liability policy, and reforms the policy to the detriment of the insured.

Post-judgment interest on the entire judgment is, as between these two insurers, a joint and several obligation of both the primary and excess liability insurers. See Hartford Steam Boiler &c. Co. v. Cochran Oil Mill & Ginnery Co., 26 Ga. App. 288, 296 (105 SE 856), where this court held that “any proper rule of apportionment must afford to the assured the fullest measure of indemnity under all the policies.” “The threshold point at which coverage begins [under the First State umbrella policy] is $500,000. The policy does not obligate [First State] to provide first dollar coverage in the event the underlying insurer is insolvent[.] ... On the other hand, [First State] is not relieved of its obligation to provide excess coverage because of the insolvency of the underlying insurer.” Lamb Brothers Lumber Co. v. South Carolina Ins. Co., 186 Ga. App. 51, 53 (366 SE2d 388). The majority has established the curious proposition that the insolvency of a primary insurer requires the named insured to assume (without consideration) any of the insolvent primary insurer’s contractual obligations for the benefit of an excess liability carrier. At most, the named insured is sei/-insured to the extent of the underlying or retained limits contemplated in the excess liability policy. Compare Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (2) (224 SE2d 167), where the Georgia Supreme Court held that “ ‘the liability of the (insurer) is not altered by the discharge of the bankrupt [insured].’ ” Accordingly, the presence of a “standard interest clause” in a primary policy issued by a now-insolvent insurer should not alter the unambiguous obligation of First State, as the excess liability carrier, to “indemnify the INSURED for . . . all sums which [Southeast] shall be obligated to pay by reason of the liability imposed upon [Southeast] ... for damages and expenses. . . .” In my judgment, the trial court erred in granting First State’s motion for summary judgment on both the main claim by Southeast and on First State’s counterclaim to recover the post-judgment interest it had already paid. In the cases sub judice, accrued post-judgment interest on the entire judgment amount falls within the express limits of coverage, i.e., above the $500,000 retained limit and below the $10,000,000 upper limit of excess liability coverage. Moreover, post-judgment interest is a legal item of recoverable damages (OCGA §§ 9-12-10 and 7-4-12), and is included within the meaning of “all sums which the INSURED shall be obligated to pay by reason of the liability imposed upon the INSURED by law ... for damages and expenses, because of . . . PERSONAL INJURY.” See, e.g., Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313, 317 (232 SE2d 910) (“Punitive damages is a legal liability . . .”). It follows that the trial court also erred in denying Southeast’s motion for summary judgment. The judgments of the trial court should be reversed and remanded with direction to enter judgment for Southeast, in accordance with the insured’s motion for summary judgment. OCGA § 9-11-50 (e).

Decided March 17, 1995

Adams & Ellis, George L. Lewis, Laura J. Tromly, for appellant.

Lightmas & Delk, Frank A. Lightmas, Jr., for appellee.

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

       The issue involving whether GIIP was required to contribute to the judgment against SEACO was resolved in favor of SEACO in Ga. Insurers Insolvency Pool v. Southeast Atlantic &c., 211 Ga. App. 660 (440 SE2d 254) (1994) (SEACO III). This court held in SEACO III that SEACO was entitled to reimbursement from GIIP of the first $100,000 of its liability to GPA. That holding is not involved in this appeal.

       The section on Supplementary Payments provided: The Company [Midland] will pay, in addition to the applicable limit of liability: ... all expenses incurred by the company, all costs taxed against the insured . . . and all interest on the entire amount of any judgment. . . .” This is referred to as the “standard interest clause.” 8A Appleman, Insurance Law & Practice, § 4894.25, p. 80, n. 3.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A0092.
    In the Interest of R. P., a child.
    (456 SE2d 107)
   Birdsong, Presiding Judge.

Timitra Nicole Parker appeals the order of the juvenile court terminating her parental rights.

Appellant’s child, R. P., was five years old at the time of the petition for termination. His putative father had raped his mother who, as a result, conceived and gave birth to R. P. The putative father was incarcerated at Rivers Correctional Institution for aggravated child molestation and statutory rape but apparently was released by the time of the termination hearing; he did not file a petition to legitimate R. P. after receiving notice of the termination of parental rights proceeding. On June 22, 1989, R. P. was adjudicated a deprived child, pursuant to OCGA § 15-11-2; this determination was extended on May 20, 1991 and again on May 17, 1993. Petition to terminate parental rights was filed on February 10, 1994. Following the hearing on June 29, 1994, the juvenile court terminated the parental rights of both the mother and the putative father; only appellant mother has appealed.

The sole enumeration filed is that the juvenile court violated appellant’s right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution by terminating her parental rights without clear and convincing evidence. Held:

1. “The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) In the Interest of S. K. L., 199 Ga. App. 731, 734 (1) (405 SE2d 903). An appellate court determines sufficiency of the evidence; it does not weigh evidence or determine witness credibility. In the Interest of E. P. N., 193 Ga. App. 742, 748 (2) (c) (388 SE2d 903).

2. “Pursuant to OCGA § 15-11-81 (a) there exists a two-step process in considering the propriety of termination of parental rights. First, the court shall determine whether there exists clear and convincing evidence of parental misconduct or inability; secondly, if such clear and convincing evidence exists, the court shall then consider whether termination of parental rights is in the best interest of the child, ‘after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home.’ (Emphasis supplied.) OCGA § 15-11-81 (a). With certain exceptions [not applicable to this appellant’s appeal], the court may terminate parental rights if the court determines parental misconduct or inability by finding that: the child is a deprived child within the meaning of OCGA § 15-11-2 (that finding was made previously and was not appealed in this case); the lack of proper parental care or control by the parents in question is the cause of the child’s status as deprived; such cause of deprivation is likely to continue or will not likely be remedied; and the ‘continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.’ (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (A) (iv).” In the Interest of S. H., 204 Ga. App. 135, 138 (1) (418 SE2d 454). The juvenile court made each of the requisite statutory findings, concluding that “[t]he child is without proper parental care and control affecting [his] welfare and said condition will not be remedied.” “In determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following . . . (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (B) (v). “As a general rule, ‘while . . . past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.’ ” In the Interest of S. K. L., supra at 733 (1). “In addition to the considerations in subparagraph [OCGA § 15-11-81 (b) (4) (B)], where[, as in this case,] the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (C). The juvenile court found, inter alia, that R. P. is without proper parental care and control affecting his welfare and said condition will not be remedied in that: the mother has failed to comply with the court ordered plans designed to reunite her with her child; the mother has failed to cooperate or to show any progress over the period of years that the child has been in her care; the mother has had only sporadic visits with the child; and there have been efforts made for the mother through citizen panel reviews, case plans, court-appointed special advocates, mental health referrals and schooling referrals, all to no avail. The juvenile court also made numerous findings of fact in support of its conclusions of law, including, inter alia, the findings that “the mother has, without justifiable cause, failed significantly for a period of one (1) year or longer prior to the filing of the Petition for Termination of Parental Rights to comply with court ordered plans designed to reunite her with the child,” and that two different citizen review panels have recommended parental rights termination. The juvenile court also found, based on a clear and convincing evidence standard, that termination of parental rights was in the best interest of the child. “ ‘ “Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” ’ ” In the Interest of S. H., supra at 140 (4).

The mother admitted in judicio in her testimony that she had missed visits with her child as provided for by the case plan; she visited the child only “off and on,” because “when I do make plans something always comes up.” At the hearing held on or about June 29, 1994, one of the county DFCS caseworkers who occasionally worked on the child’s case testified, without objection, regarding the April 8, 1993 case plan, which had been in effect for over a year. The plan provided, inter alia, that the mother was to continue weekly therapy, would take a G. E. D. examination within six months or have secured part-time employment, would attend parenting classes; and would have weekly telephone or face-to-face contact with the child. The mother has not completed her G. E. D. or obtained a high school diploma; visitation has been sporadic; from April 1993 to October 1993, she only saw her child two times; and from November 1993 to the date of the hearing, she only had face-to-face contact with the child on one occasion. This sporadic visitation occurred notwithstanding that DFCS provided the mother with a MARTA card from the winter of 1992 to March 1994; the card was provided following an extension hearing during which the judge requested there be weekly visitations between mother and child. To further facilitate the interaction between mother and child a court-appointed special advocate (CASA) was assigned to the case. The CASA met with the child in the foster home, and on one occasion arranged a meeting with the mother; however, after a second meeting was scheduled, the mother did not show up to visit her child. Subsequently, the attempt to use the CASA as an intermediary was discontinued.

It was the caseworker’s opinion, based on her experience, that people who are raped have particular problems that need to be addressed. Before the mother was 18 years of age, DFCS arranged for her to receive group counseling at Kirkwood, due to her rape victimization; however, the mother elected to discontinue counseling upon attaining the age of 18 when she was no longer under DFCS custody. The mother made an admission in judicio (Lamb v. Decatur Fed. Savings &c. Assn., 201 Ga. App. 583, 588 (411 SE2d 527)) that she quit counseling “because [she] felt that [she] did not need any more counseling for [the effect of the rape] because [she] had gotten over it.” At the time of the termination hearing, the goal that the mother was to continue weekly therapy with additional individual support therapy was not completed. During closing argument, appellant mother’s attorney made an admission (see Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119); Rucker v. State, 205 Ga. App. 651 (423 SE2d 51); Green, Ga. Law of Evidence (4th ed.), p. 440, § 238) that the mother “is still traumatized” by the rape, and urged the court to allow her more time to work out “her emotional problems” and all that occurred from the rape when she was 13 years old.

The mother enrolled in Southwest DeKalb High School in 1990, but was attending Avondale High School in December 1991 when she was expelled. To assist the mother in meeting the educational requirements of the plan, DFCS had placed her in “relative foster home placement” with her aunt, and enrolled the mother in a G. E. D. course that met daily at DFCS. However, the mother only attended the course sporadically and never completed it. The mother also participated unsuccessfully in the Private Industry Council program, which in addition to an education program helps the students find employment; the mother was briefly employed at the V. A. Hospital but was asked to leave that employment. The mother also failed to complete a government careers course, although DFCS paid for the initial part of the program.

Further, for a period of at least 12 months, the caseworker had received no financial support payments from the mother for her child. The mother has been working from forty to sixty hours a week for the last four months, at the Holiday Inn, and earning $5 per hour. She has been saving money for an apartment for herself and her child; she currently is living with her boyfriend and his mother and brother. She has not informed the caseworker where she is living, because most of the time when she calls, the caseworker’s answering machine is on.

Decided March 20, 1995.

William M. Warner, Deborah M. Lubin, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Kevin M. O’Connor, Assistant Attorneys General, Robert G. Nardone, Dorothy Murphy, for appellee.

Applying the appropriate standard of appellate review, as discussed in Division 1 above, we find the trial court did not err in terminating the parental rights of appellant. Compare In the Interest of J. D. D., 215 Ga. App. 68 (449 SE2d 655); In the Interest of A. S. M., 214 Ga. App. 668 (2) (448 SE2d 703) where the court terminated parental rights for non-compliance for over a period of one year with the reunification plan.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A94A1907.
    FIELDSTONE CENTER, INC. v. STANLEY.
    (456 SE2d 61)
   Ruffin, Judge.

Fieldstone Center, Inc. (“Fieldstone”) filed this interlocutory appeal of the trial court’s order denying its motion for summary judgment.

Fieldstone is in the business of selling and installing stone. Field-stone subcontracted its installation work to one of several masons through its subsidiary, Mason Group, Inc. (“Mason Group”). Under this arrangement, Fieldstone would provide the specifications to a subcontractor, deliver the stone to the project site, and the masonry subcontractors, using their own tools, would install it. While Field-stone would insure the work was performed according to the specifications, it had no other control over the manner in which the subcontracting mason completed the project.

One masonry subcontractor frequently used by Fieldstone was Norberto Ibarra. While Ibarra generally used his own truck and tools, on rare occasions he used one of Fieldstone’s trucks. On one such occasion, when Ibarra was nearing completion of a project and the property was being landscaped, the owner requested that Fieldstone not dump stone at the site. Fieldstone allowed Ibarra to use one of its trucks to deliver the stone to the site and work directly off the back of the truck when installing the stone. While Ibarra was driving to the site in Fieldstone’s truck, he was involved in a traffic accident with Alice Stanley. At the time of the accident, Ibarra’s driver’s license was suspended. Stanley sued Ibarra and Fieldstone for the injuries she sustained. In her complaint, Stanley alleged Fieldstone was liable both as the employer of Ibarra and because it had negligently entrusted Ibarra with the operation of its truck.

1. In its motion for summary judgment, Fieldstone contended that neither a claim for negligent entrustment or a claim under the theory of respondeat superior could be sustained by the evidence submitted. In support of its motion, Fieldstone filed the affidavit of its president, Brad Poynter. Fieldstone asserts the trial court erred in excluding the affidavit from consideration in its entirety due to a contradiction between the affidavit and Poynter’s deposition testimony. We agree.

In his affidavit, Poynter stated that Ibarra contracted with, and was paid by Fieldstone. However, in his deposition, Poynter explained he was mistaken in his affidavit and that Ibarra contracted with, and was paid by the Mason Group. Generally, “a party’s self-conflicting testimony is to be construed against him . . . [and] ‘[t]he burden rests upon the party giving the contradictory testimony to offer a reasonable explanation. . . .’ [Cit.]” Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383) (1987). “Where a party’s explanation for a contradiction is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” (Punctuation omitted.) Id.

In the instant case, even if the trial court found that Poynter did not provide a reasonable explanation for the contradiction and that all the contradictory testimony favored Fieldstone, it erred in striking the entire affidavit from consideration. As provided in Gentile, the trial court should have eliminated only the favorable portions of the contradictory testimony, then considered the motion with all the remaining testimony as it was then left standing. In this case, since none of the contradictory testimony was necessary to the trial court’s consideration of the motion, it is unnecessary to consider which portions of that testimony, if any, were favorable to Fieldstone and therefore should have been eliminated. We simply find the trial court erred in striking Poynter’s affidavit in its entirety, thereby precluding consideration of the remaining uncontradicted portions.

2. Fieldstone contends the undisputed facts establish it cannot be liable to Stanley under the theory of negligent entrustment. We agree.

“Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” (Citation, punctuation and footnote omitted.) Taylor v. Duren, 213 Ga. App. 691, 692 (1) (445 SE2d 820) (1994). In the instant case, Stanley made the naked assertion that Fieldstone had actual knowledge of Ibarra’s past driving record, which included a prior conviction for driving under the influence of alcohol, and his license suspension. In support of its motion for summary judgment, Fieldstone presented affidavit and deposition testimony that no such knowledge existed. As stated in Division 1, this testimony should not have been stricken. Field-stone was under no duty to investigate Ibarra’s driving record or whether he was licensed to drive. See Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990). Moreover, after Fieldstone met its burden of showing there was no evidence in the record to support Stanley’s claim that it had actual knowledge of Ibarra’s driving record, Stanley failed to point to any evidence indicating such actual knowledge existed. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accordingly, the trial court erred in failing to grant Fieldstone’s motion as to Stanley’s claim of negligent entrustment.

3. Fieldstone also contends the trial court erred in concluding that a genuine issue of fact remained as to whether, at the time of the accident, Ibarra was its employee or an independent contractor. “Generally, an employer is not responsible under the theory of respondeat superior for the torts of one employed as an independent contractor. [Cit.] An employer-employee relationship exists when the employment agreement gives, or the employer assumes, the right to control the time and manner of executing the work. In an employer-independent contractor relationship, the employer has the right merely to require results in conformity with the employment agreement, and the independent contractor retains the right to perform the work by his own means, method and manner. [Cit.]” McDaniel v. Peterborough Cablevision, Ltd., 206 Ga. App. 437, 438 (425 SE2d 424) (1992). “ ‘[A] person can be an independent contractor in one part of his activity and an employee in another.’ [Cits.]” Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 906 (219 SE2d 593) (1975). In the case at bar, while it is undisputed that Ibarra controlled the manner in which the stone was installed, at the time of the accident he was driving Fieldstone’s truck to deliver stone to the project site, a job ordinarily performed by Fieldstone employees and regarded as part of Field-stone’s regular operations. Under these circumstances, we believe the trial court correctly held that a genuine issue of material fact remained as to whether Ibarra was an employee at the time of the accident. See McGuire v. Ford Motor Credit Co., 162 Ga. App. 312 (290 SE2d 487) (1982).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.

Decided March 1, 1995

Reconsideration denied March 22, 1995

Berlon & Timmel, James T. Perry, for appellant.

Foster & Foster, Larry A. Foster, John A. Kimbell, for appellee.


text:
    A94A2271.
    WESTON v. THE STATE.
    (456 SE2d 214)
   Ruffin, Judge.

Appellant, Joseph Weston, was tried and convicted of possession of cocaine with the intent to distribute. At trial, the State moved to introduce evidence of Weston’s two prior convictions for selling cocaine. The trial court denied the motion and specifically instructed Weston that he was not to go into the convictions regardless of what the State asked him. Despite this warning, Weston testified that he had been in jail for two years during the following cross-examination: “Q. About how much [money] would you make. . . ? A. . . . Sometimes I might bring home $500, sometimes . . . $450. . . . Q. For three years you had been making $450, $500 a week? A. No, I hadn’t made that much for the three years because I was in prison for two. So, when I got out — Q. You were in prison for two years? A. That’s right. ...”

Weston contends the trial court erred in allowing the State to introduce copies of the prior convictions for which he was in jail after this exchange. We disagree. In Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), our Supreme Court held that “[w]here the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Id. at 759 (1b).

“Assuming [Weston] did not, merely by volunteering that he had been incarcerated, put his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b) so as to permit rebuttal by the State, he nevertheless raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994) (citing Jones, supra). See also Dowdy v. State, 209 Ga. App. 95 (2) (432 SE2d 827) (1993) (defendant’s inadvertent reference to his parole could be fully explored by State, including the crime giving rise to it).

Further, “[s]ince it was [Weston] who introduced the topic on [cross-]examination, he cannot now complain that the prosecutor followed up on [it]. [Cit.]” Willis v. State, 214 Ga. App. 659 (448 SE2d 755) (1994).

Decided February 1, 1995

Reconsideration denied March 22, 1995.

Jennifer B. Mann, for appellant.

Joseph Weston, pro se.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Elizabeth G. Macnamara, Desiree L. S. Peagler, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2786.
    HALL v. THE STATE.
    (456 SE2d 56)
   Ruffin, Judge.

Eldanta Hall appeals from his conviction for possession of cocaine with intent to distribute in violation of the Georgia Controlled Substances Act. Hall was arrested after police officers entered the hotel room where he was living and found a bag of cocaine in his pocket and a container full of crack cocaine on the night stand.

1. In his first enumeration of error, Hall contends the trial court erred in denying his motion to suppress the cocaine seized in the hotel room. In his motion, Hall asserted that “[o]n or about the date alleged in the indictment, defendant’s residence was searched and property was seized by the police. The police did not have a search warrant nor did any exigent circumstances exist which would justify a warrantless search.” At the suppression hearing, one of the officers testified that prior to going to the hotel, he had learned of an outstanding arrest warrant for Hall in another county. Although he had not seen the warrant at the time, and could not produce it at the hearing, the officer stated he called the other police department and “verified that the warrants were still outstanding” before proceeding to the hotel. Once at the hotel, the officer obtained a key to the room, and when he saw Hall walking towards the door, entered with the key and placed him under arrest. Upon searching Hall, the officer found the cocaine in his pocket and saw, “in plain view,” the container of cocaine on the night stand.

At the hearing, the following exchange took place between defense counsel and the trial judge. “[COUNSEL]: Well, the only evidence we have that there was an arrest warrant, was the testimony of this officer, that he had been told that there was an arrest warrant. THE COURT: Do you have any evidence to the contrary? [COUNSEL]: No, sir. But the burden, I believe, is upon the State to establish that there was, in fact, an arrest warrant. And, we don’t know, in fact, that this officer was given the correct information, we’ll never know without the arrest warrant being produced at the hearing. THE COURT: I would think that if there was no arrest warrant, that would have come to your attention, and you would make that known to the Court, and dispute what he said? If he says there’s an arrest warrant, and you got no evidence, what am I to believe?” After Hall urged the court two additional times that the State should be required to produce the arrest warrant, the court denied the motion.

“The constitutional right of criminal suspects to be free of unlawful search and seizure is the same as the right of other persons, for our law does not presume guilt; the right protected, that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the government, is weighty, and it is not outweighed by practical problems. [Cit.] The State has the burden to prove that a challenged search or seizure was lawful; a search challenged on any grounds is governed by OCGA § 17-5-30 (b), which provides that on a motion to suppress alleging an unlawful search or seizure, ‘(t)he judge shall receive evidence ... on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state.’ [Cit.] If there was no arrest warrant, the police entry into appellant’s [hotel room] was unlawful and his arrest was unlawful. The fruits of an unlawful arrest may not be introduced into evidence. [Cit.]” (Indention omitted.) Baez v. State, 206 Ga. App. 522, 526 (1) (425 SE2d 885) (1992).

In the instant case “[n]o arrest warrant was ever introduced. No judicial officer testified that he or she issued an arrest warrant. Despite appellant’s counsel’s repeated objections and requests, the trial court did not require the State to produce an arrest warrant or even account for its absence. The State never suggested it might produce an arrest warrant if it had a continuance. ... If there was an arrest warrant in existence, no reason whatever appears for the State’s refusal to put it in evidence in the face of so many repeated [arguments] . . . and the record otherwise fails to reveal sufficient facts to sustain the State’s burden of proof. Accordingly, the State failed to carry its elementary burden to prove the lawfulness of the intrusion and arrest which resulted in the discovery of the contraband ([cits.]), and that evidence must be suppressed under the established law of this state.” (Indention omitted.) Id. at 527-528.

The State argues that because the motion to suppress did not mention an arrest warrant or that entry into the hotel was based upon a non-existent arrest warrant, it should not have been required to second guess issues not raised in the motion and produce the warrant at the hearing. We do not agree. Although the motion did not mention an arrest warrant, it did conclude that “exigent circumstances [did not] exist which would justify a warrantless search.” (Emphasis supplied.) In responding to the motion, the State knew it would have to meet its burden of showing why the warrantless search was legal. At the hearing, the State attempted to meet this burden by arguing that no search warrant was necessary because the officers were entering the room to execute a valid arrest warrant. Under these circumstances “ ‘[t]he motion in this case was sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness [and other evidence] to bring to the hearing on the motion, and the legal issues to be resolved at that hearing. . . ” State v. Blosfield, 165 Ga. App. 111, 113 (299 SE2d 588) (1983). Accordingly, we find “the instant motion was sufficient to require the State to meet [Hall’s] allegations with proof to the contrary.” Id. at 114. Since the State failed to meet that burden, the trial court erred in denying Hall’s motion to suppress.

Decided February 6, 1995

Reconsideration dismissed March 22, 1995.

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

2. Since we determined in Division 1 that the trial court erred in admitting the cocaine into evidence, it is not necessary to address Hall’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A94A2213, A94A2214.
    HAEZEBROUCK et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
    (455 SE2d 842)
   Smith, Judge.

Deborah Haezebrouck and her husband, Joseph Haezebrouck, brought suit against State Farm Mutual Automobile Insurance Company and others. They alleged claims for failure to pay medical expenses and bad faith in denying certain claims for medical expenses incurred by Deborah Haezebrouck after a motor vehicle accident. Joseph Haezebrouck also alleged that State Farm’s medical consultant, Don R. Wakefield, published a report libeling him. State Farm moved to dismiss the action or for partial summary judgment. The trial court granted State Farm’s motion in part and denied it in part. In Case No. A94A2213, the Haezebroucks appeal from that portion of the trial court’s order granting partial summary judgment. In Case No. A94A2214, the cross-appeal, State Farm appeals from that portion of the trial court’s order denying complete relief.

The record reveals that Joseph Haezebrouck is a chiropractor and Deborah Haezebrouck is employed at her husband’s office. After she was involved in a vehicular collision, Deborah Haezebrouck sought chiropractic treatment for her injuries. Although State Farm paid over $5,000 in no-fault and medical payment benefits, it refused to pay approximately $1,700 of submitted expenses, representing charges for certain items of treatment. These items consisted of a TENS unit, a Lossing back and neck traction unit, a cervical collar, a cervical pillow, and a knee support. State Farm denied payment for the collar, pillow, and knee support on the ground that they had been prescribed by a chiropractor but were not within the scope of chiropractic practice, as permitted by OCGA § 43-9-16. The denial of payment for the other items was based on the opinions of independent evaluators, who concluded that the items submitted to them for review were not medically necessary for Haezebrouck’s condition.

The trial court agreed that the collar, pillow, and knee support were not within the scope of chiropractic practice and granted State Farm’s motion for summary judgment as to those items. It found, however, that the TENS unit and the Lossing back and neck traction unit were within the scope of chiropractic practice and denied summary judgment as to payment of claims for these items. It also concluded there was a jury issue as to whether State Farm’s refusal to pay for these items as medically unnecessary was reasonable. In addition, it found a jury issue as to Dr. Haezebrouck’s libel claim.

1. In the main case, the Haezebroucks contend the trial court erroneously granted partial summary judgment in favor of State Farm on their claim that it wrongfully refused payment of the claim for the collar, pillow, and knee support. We agree.

The trial court found that recommendation of these items was not within the scope of chiropractic practice. However, as amended in 1993, OCGA § 43-9-16 (b) permits chiropractors to “utilize and recommend hot and cold packs and nonprescription, over-the-counter structural supports for the articulations of the human body which are commonly available through retail pharmacy outlets.” This amendment became effective July 1, 1993, and therefore was not in effect at the time State Farm denied the claim. However, when the law has been changed, a reviewing court must apply the law as it exists at the time of its judgment, if the application of the new law will not impair vested rights. Evans v. Belth, 193 Ga. App. 757, 758-759 (388 SE2d 914) (1989). Since State Farm has no vested right to deny the claim, we conclude that it is responsible for paying the claim under OCGA § 43-9-16 (b) as it now exists. The trial court’s grant of summary judgment to State Farm on this issue therefore must be reversed.

2. In the cross-appeal, State Farm contends the trial court erred in denying its motion for partial summary judgment on the Haezebroucks’ claim that it wrongfully refused to pay their claim for the TENS unit and the traction unit.

The claim for these items was denied on the ground that they were not medically necessary in the opinion of independent medical and chiropractic evaluators to whom State Farm had submitted the claims for review. The evaluators, an orthopedic surgeon and a chiropractor, concluded that the items recommended were not appropriate for Mrs. Haezebrouck’s condition. No contrary evidence was presented by the plaintiffs other than the fact that the items were prescribed for her by her treating doctor and chiropractor. Based on this evidence, we agree with the trial court that a jury issue remains as to whether State Farm wrongfully refused payment for these items.

3. State Farm also contends the trial court erred in denying its motion for partial summary judgment on the issue of bad faith.

As a matter of law, bad faith penalties under former OCGA § 33-34-6 are not awardable if an insurer has a reasonable and probable cause for refusing to pay a claim. The advice of an independent medical examiner that the treatment furnished a claimant is not in fact necessary, unless patently wrong based on facts timely brought to the insurer’s attention, provides a reasonable basis for an insurer’s denial of a claim for payment for such treatment. Neal v. Superior Ins. Co., 208 Ga. App. 827 (432 SE2d 253) (1993).

Both an orthopedic surgeon and a chiropractor concluded that the TENS unit and the traction unit were inappropriate and excessive for Deborah Haezebrouck’s medical condition and therefore medically unnecessary. Although a dispute exists regarding the evaluating chiropractor’s assumption that Dr. Haezebrouck was treating his wife, see Division 4, infra, the record contains no suggestion that State Farm was informed that the medical basis for the evaluators’ opinions that the treatment was unnecessary was incorrect. The orthopedic surgeon evaluating the claim offered his opinion that the traction units were unnecessary because soft tissue strain of the neck and back in a woman Mrs. Haezebrouck’s age is customarily treated with physical therapy to relieve discomfort followed by exercise. In addition to questioning the “unusual number of ancillary supplies provided for the patient” by a chiropractor who rented space in Dr. Haezebrouck’s office, the chiropractor evaluating the claim, Dr. Rick Wakefield, based his opinion on his questioning of the medical necessity of an MRI scan performed, the fact that Dr. Kelman (who prescribed the traction unit) did not support his recommendation of a lumbar traction device with a diagnosis for that area, and the fact that her cervical spine abnormality was a pre-existing condition. Because State Farm acted on the advice of independent evaluators whose information was not patently erroneous, we agree with State Farm that the trial court erroneously denied its motion for partial summary judgment on the issue of bad faith. Neal, supra.

4. Finally, State Farm asserts error in the trial court’s denial of its motion for partial summary judgment on Dr. Haezebrouck’s libel claim.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). The libel alleged by Dr. Haezebrouck is contained in statements made by Dr. Wakefield in his report to Mitzi McDowell, a senior claims representative for State Farm. In that report, in addition to questioning the medical necessity for the numerous devices, Dr. Wakefield recommended that State Farm not reimburse Mrs. Haezebrouck for these items because in his opinion, “charging one’s immediate family members is a significant breach of professional ethics . . . [that] shocks the professional conscience.”

State Farm first argues that a libel claim is barred here because it is well established under Georgia law that former OCGA § 33-34-6 is the exclusive remedy for failure to pay a claim in bad faith. See Lincoln Nat. Life Ins. Co. v. Davenport, 201 Ga. App. 175, 176 (410 SE2d 370) (1991). We agree with the trial court that Lincoln is not applicable here because the claim for libel is not dependent upon a refusal to pay and could have survived even had State Farm paid the claim.

We also agree with the trial court that this was not “invited” libel within the meaning of Auer v. Black, 163 Ga. App. 787, 789 (294 SE2d 616) (1982), because the statement was not defamatory of the claimant but of Dr. Haezebrouck, who had filed no claim.

State Farm also maintains that because the report expressed Dr. Wakefield’s opinion, it cannot be libelous under Georgia law no matter how unreasonable the opinion or vituperous its expression. See Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745 (337 SE2d 770) (1985). However, the opinion in that case differs significantly from the one rendered here, in that in Bergen the “statement” alleged to be libelous was a rating given in a publication purporting to rank the relative abilities of lawyers and was “wholly subjective and not capable of proof or disproof.” Id. at 747 (3). Here, in contrast, Dr. Haezebrouck alleges Dr. Wakefield libeled him by stating, or at least intimating, that he charged his wife for treatment, a statement concerning factual matter and which is capable of proof or disproof.

Nevertheless, we agree with State Farm that the trial court erred in denying its motion for summary judgment on this issue. “The publication of the libelous matter is essential to recovery.” OCGA § 51-5-1 (b). Even assuming, without deciding, that the statement constituted libelous matter, we find no evidence of the necessary publication. Disclosure of the report to State Farm was not publication because any statement made by Dr. Wakefield to State Farm or its agents was made in the performance of Wakefield’s private duty to State Farm and was privileged, unless made in bad faith. OCGA § 51-5-7 (2).

We find no evidence of bad faith. Dr. Wakefield based his belief that Dr. Haezebrouck was treating his wife on information in her medical records that Dr. Mirtschink, Deborah Haezebrouck’s treating chiropractor, had the same practice address as that of Dr. Haezebrouck and that a health insurance claim form submitted by the office that performed an MRI on Deborah Haezebrouck and included in her file indicated that Dr. Haezebrouck was the referring physician. We note that our review of the record also reveals that Dr. Haezebrouck’s name appears as a treating doctor on a claim form submitted to State Farm by Deborah Haezebrouck that appears to have been signed by her. In addition, the “claim activity log” in the record contains handwritten notes bearing the initials of Mitzi McDowell, a State Farm claim representative, indicating that Deborah Haezebrouck telephoned her on July 22, 1991, and stated that her husband had been treating her. Although the Haezebroucks have denied that Dr. Haezebrouck treated his wife, Wakefield’s belief to the contrary was not entirely without support.

There was no other evidence of publication. Apart from State Farm, Wakefield, and the plaintiffs, Dr. Haezebrouck admitted on his deposition that he had no knowledge that the report was seen by anyone.

Summary judgment in favor of State Farm and Wakefield was therefore proper on the ground there was no publication.

Judgment reversed in Case No. A94A2213. Judgment affirmed in part and reversed in part in Case No. A94A2214.

McMurray, P. J., and Pope, P. J., concur.

Decided February 27, 1995

Reconsideration denied March 23, 1995

Michael J. Kramer, for appellants.

Downey & Cleveland, Y. Kevin Williams, W. Curtis Anderson, for appellees.

       It was, however, in effect at the time the trial court entered judgment on August 5, 1993.

       Although the trial court found that these items were within the scope of chiropractic practice, the traction unit was prescribed by Dr. Kelman, a medical doctor, and therefore the issue of whether its recommendation is within the scope of chiropractic practice is not applicable to this item.


author: Pope, Presiding Judge.

text:
    A94A2452.
    PYE v. TAYLOR & BIRD, INC.
    (456 SE2d 63)
   Pope, Presiding Judge.

Plaintiff appeals from the trial court’s grant of summary judgment to defendant in this slip and fall case.

In September 1991, Rosa Lee Pye was a resident at the Claxton Nursing Home, which is owned by defendant Taylor & Bird, Inc. On September 1, 1991, Mrs. Pye fell at the nursing home and broke her right arm. Approximately one year later, Mrs. Pye died from causes unrelated to this incident. On August 27, 1993, plaintiff, the administrator of Mrs. Pye’s estate, sued defendant alleging that Mrs. Pye slipped and fell in a puddle of liquid substance at the nursing home, and that defendant failed to properly monitor its hallways and walkways to insure that such a substance did not pose a hazard to the nursing home’s residents. Defendant answered, denying liability, and on January 11,1994, filed a motion for summary judgment, which was supported by affidavits from two of defendant’s employees, Lila Coley and Delores Mincey. Plaintiff did not respond to defendant’s motion for summary judgment.

In her affidavit, social worker Delores Mincey stated that when Mrs. Pye was admitted to the nursing home, Mincey gave her an orientation tour of the facility. As part of the tour, Mincey claims she explained that the soil utility room was “off-limits” and designated as an “employee only” room. Additionally, Mincey testified that she believed that Mrs. Pye understood that she was not to go into the soil utility room. According to the affidavit testimony of Lila Coley, who was a staff nurse at the time Mrs. Pye fell and the only eyewitness to the fall, immediately prior to falling, Mrs. Pye was seen leaving the soil utility room. Upon seeing Mrs. Pye fall, Coley went to help her. Coley testified that as she looked around the scene of the accident she found no moisture on the floor, but did find moisture on Mrs. Pye’s shoes. Coley stated that the only place this moisture could have come from was the soil utility room, which was used to hose down linens, and sometimes had a wet floor. Coley also stated that prior to Mrs. Pye’s fall there was no moisture on the floor in the hallway. Additionally, Coley testified that she believed that Mrs. Pye understood that the soil utility room was for “employees only” and that it was “off-limits.”

By order dated May 27, 1994, the trial court granted defendant’s motion for summary judgment. Plaintiff appeals and we reverse.

“On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law. When, as in the instant case, movant is the defendant, [it] has the additional burden of piercing the plaintiff’s pleadings. But, a movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party is discharged by establishing by evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In ruling on a motion for summary judgment, the opposing party 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.” (Citations and punctuation omitted.) Wade v. Mitchell, 206 Ga. App. 265, 266 (1) (424 SE2d 810) (1992). The above rules apply even when, as in this case, the non-moving party fails to file affidavits or otherwise respond to a motion for summary judgment. See Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595 (370 SE2d 843) (1988).

In applying the above rules to this case, we note that the primary business purpose of a nursing home is to take care of residents who, because of age, infirmity or some ailment, are no longer able to take care of themselves. Because of the special relationship existing between the nursing home and its residents, the residents must generally be considered invitees of the home. Accordingly, as to such residents, the nursing home has a duty to exercise ordinary care in keeping its premises safe. OCGA § 51-3-1. “The duty to keep the premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, and the like, in that they are not known to the invitee and would not be observed by [her] in the exercise of ordinary care.” Anderson v. Saffold, 134 Ga. App. 31 (213 SE2d 127) (1975). In this case, an issue of material fact exists as to whether the unlocked soil utility room, itself, constituted such a hidden danger or trap to Mrs. Pye.

We reject the argument that merely telling residents that the soil utility room was for “employees only” and “off-limits” was sufficient as a matter of law to relieve defendant of liability in this case. It is clear from the testimony of Coley that defendant knew the soil utility room was potentially dangerous because it sometimes had a wet floor. Based on such knowledge, a jury question exists as to whether defendant took adequate precautions to safeguard its residents from any potential dangers associated with the room. There is no evidence of record that warning signs were posted outside the door to the room, or that the door had a lock on it. Moreover, Mrs. Pye’s apparent unobserved entry into the room, itself, presents an issue of fact as to whether defendant even attempted to monitor the room to keep residents out. Furthermore, even though Coley and Mincey both testified that they believed that Mrs. Pye understood that she was not to enter the soil utility room, a factual issue remains regarding whether Mrs. Pye, as an elderly resident, was capable of understanding any dangers associated with entering the room. There are also issues of material fact remaining as to whether Mrs. Pye became a mere licensee by entering the room.

Decided March 6, 1995

Reconsideration denied March 23, 1995

Hugh J. McCullough, Hal T. Peel, for appellant.

Brannen, Searcy & Smith, David R. Smith, Robert L. Jenkins, for appellee.

Based on the above, we hold that the trial court erred in granting summary judgment to defendant because there are issues of material fact in this case that must be resolved by a jury.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2536.
    ROBINSON v. THE STATE.
    (456 SE2d 68)
   Smith, Judge.

Larry Robinson was charged by accusation with stalking, OCGA § 16-5-90 (a), and two counts of making harassing telephone calls, OCGA § 16-11-39 (4). A jury found him guilty of stalking and one count of making harassing telephone calls; he was acquitted of the other count. His motion for new trial was denied.

1. Robinson first contends the evidence was insufficient to support his conviction for stalking. We do not agree.

OCGA § 16-5-90 (a) provides in pertinent part that “[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.”

The evidence at trial showed that Kim Forbes had known Robinson for about two years and dated him for approximately one year before attempting to end the relationship. She testified that after she attempted to end the relationship, Robinson called her constantly, left a note on her car, left a threatening letter in her mailbox, rode by her house, and threatened to write a disparaging letter to her supervisor at work. The letter was actually sent to Forbes and some friends but not to her supervisor. After Forbes swore out a warrant against Robinson for stalking, he followed her in his car for several miles. Forbes testified she feared for her life and was affected greatly by these actions. Although Robinson testified and undermined or contradicted some of this evidence, the jury was authorized to believe Forbes’s testimony.

Contrary to Robinson’s argument, the fact that the jury acquitted him of making harassing telephone calls to Forbes does not mean that they did not believe Forbes’s testimony that he telephoned her constantly or consider that evidence in connection with the stalking charge. The statute prohibits “ ‘contact(ing) another person’ ” without consent for the purpose of harassment. “To ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘(t)o get in touch with; communicate with.’ ” Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994). The evidence was sufficient to authorize the jury to convict Robinson of stalking.

2. Robinson contends the trial court erred in refusing to compel Forbes to answer a question on cross-examination. Forbes was a financial officer at Georgia Baptist Hospital, and she, Robinson, and DeGay Fletcher had been involved in varying degrees in a scheme to steal money from the hospital. All had been arrested but not indicted on that matter at the time of the trial of this case. Forbes testified about the Georgia Baptist matter, but when asked on cross-examination what she had told police about Robinson in that investigation, she invoked her Fifth Amendment privilege against self-incrimination.

The defense objected and moved the court to instruct her to answer, claiming that forcing her to redisclose information she had already given the police could not further incriminate her. Robinson also contended that he believed this prosecution was being undertaken to establish a tactical advantage for Forbes and Fletcher in the Georgia Baptist case by undermining his credibility and trying to shift all blame for that crime on him. He argued that her answer would show Forbes’s bias in that respect. The trial court refused to order Forbes to respond to the question, stating he could see the possibility of the answer being incriminating.

Regardless of Robinson’s reason for asking the question, the appropriate course of action when a witness invokes the privilege against self-incrimination is for the trial court first to determine if the danger of self-incrimination is “real and appreciable.” If so, the decision whether to invoke the privilege must be left to the witness. Only if the trial court determines the answer could not incriminate the witness must the witness testify. Spivey v. State, 200 Ga. App. 284, 285 (407 SE2d 425) (1991). That procedure appears to have been followed here.

It is true, as argued by Robinson, that a witness’s partiality may be exposed by proof that he hopes to benefit in a related case from cooperating with the prosecution in this case. Kinsman v. State, 259 Ga. 89, 91 (7) (b) (376 SE2d 845) (1989). It is equally true, however, that the privilege is not waived merely because the witness testified to the same matter at a previous trial. Mallin v. Mallin, 227 Ga. 833, 836 (3) (183 SE2d 377) (1971). At the time of this trial, no indictments had been returned in the Georgia Baptist matter. We have no verbatim transcript of the proceedings and thus have no knowledge of what Forbes’s testimony regarding her statement to the police may have been. However, we must agree with the trial court that the possibility certainly existed that Forbes’s testimony might incriminate her. Moreover, Robinson was free to argue his theory to the jury even without Forbes’s answer to this particular question.

The greatest danger usually posed by a witness’s assertion of the Fifth Amendment privilege from the stand lies in the possibility that the State will propound leading questions to the witness that will bring before the jury otherwise inadmissible matters. See Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975). That danger was not presented here, because the question prompting Forbes’s assertion of the privilege was propounded to the witness by the defense; the jury did not hear prejudicial matters as a result. Defense counsel did not request the trial court to instruct the jury regarding adverse inferences to be drawn from the invocation of the privilege, nor did he request that Forbes’s remaining testimony regarding this matter be stricken. See generally In the Interest of H. W. A., 182 Ga. App. 188, 189 (1) (354 SE2d 884) (1987) (“The true rule is that when a witness declines to answer on cross-examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken.”) We find no error.

3. Robinson contends the State failed to prove venue at trial. No verbatim transcript exists in this case, and consequently we are unable to assess the accuracy of this contention. The State moved to supplement the transcript from recollection, and the trial court found that the “absence of findings about venue in the previous narrative transcript was not intended to be an indication that the issue was not proven by the State.” The trial court was unable to recall what evidence was presented regarding venue, other than that the residences of Forbes, Fletcher, and Robinson were all in DeKalb County, as was at least part of the route taken by Robinson when he followed Forbes. This enumeration consequently presents nothing for review. See Huff v. State, 207 Ga. App. 686, 687 (1) (428 SE2d 818) (1993).

Decided March 10, 1995

Reconsideration denied March 23, 1995

Manning & Leipold, Calvin A. Leipold, Jr., for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Shannon L. Goessling, Assistant Solicitors, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       The trial was not reported. A transcript from recollection was prepared in narrative form, agreed to by the parties, and approved by the trial court as provided in OCGA § 5-6-41 (g)-


text:
    A94A2545.
    ANDREW v. THE STATE.
    (456 SE2d 227)
   Pope, Presiding Judge.

Defendant was charged with driving under the influence and driving with an expired driver’s license in two separate Georgia uniform traffic citations. On July 23, 1993, the parties appeared in the Probate Court of Gilmer County. The probate court indicated it would have an “informal hearing” on certain motions filed by the defendant. Counsel for the State and the defendant then proceeded to argue about whether the motions filed by defendant should be heard pre-trial or whether they should or could be considered once the trial commenced. Defense counsel insisted that his motion for discharge and acquittal, based on alleged defects in the traffic citations, be heard after the trial commenced, but stated that his motion in limine could be addressed pre-trial. The probate court judge finally announced “well, I think we just need to get started.” The State then amended the citations. The record shows that the officer who issued the citations, Officer Lovell, was then sworn in. Defendant immediately moved for discharge and acquittal based upon the alleged defects in the traffic citations. The probate court indicated it would deny the motion, and defense counsel moved that the court’s ruling be reduced to writing so that it could be immediately appealed to the superior court. After further discussion concerning an appeal to the superior court, the probate court judge, sua sponte, stated her intention to transfer the case to the superior court. Defendant opposed the transfer, and reiterated that he wanted only to appeal the probate court’s denial of his motion; and that he did not want the case transferred and a trial to be conducted in superior court. Nevertheless, over defendant’s objection, the probate court entered an order denying defendant’s motion for discharge and acquittal and transferring the case to the superior court.

Decided February 27, 1995

Reconsideration denied March 23, 1995

Thomas J. Thomas, William C. Head, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant Dis trict Attorney, for appellee.

An accusation against defendant was subsequently filed in superior court. Defendant filed a plea of former jeopardy, which was denied by the superior court following a hearing. Defendant appeals that ruling.

“ ‘The threshold question to be addressed in any case involving double jeopardy is whether jeopardy has attached to defendant during the proceedings which he contends preclude further prosecution.’ Haynes v. State, 245 Ga. 817, 818 (268 SE2d 325).” Smith v. State, 171 Ga. App. 279 (319 SE2d 113) (1984). Defendant argues his prosecution in superior court is barred because the probate court improperly terminated the first proceeding after the first witness was sworn and that further he did not consent to the termination nor was it required by manifest necessity. See OCGA § 16-1-8.

This court recently held that a defendant is placed in jeopardy when a “trial was terminated after the first witness was sworn and before findings were rendered by the trier of fact, and [defendant], having failed to obtain a ruling on his special demurrer before the start of the trial, waived his right to challenge the citations and therefore submitted to be tried under the citations.” Dean v. State, 214 Ga. App. 768, 770 (449 SE2d 158) (1994). However, in that case, unlike the case at bar, there was no question that the trial of defendant was underway when the proceedings were terminated. In this case, the transcript from the probate court does not clearly disclose whether a trial was underway when the proceedings were terminated or whether the court was simply moving forward with its originally stated intent to conduct an “informal hearing” on defendant’s motion. Contrary to defendant’s argument, the swearing of the witness does not conclusively establish that the trial had commenced because sworn testimony is often given during pre-trial hearings. The transcript from the hearing on defendant’s plea in bar in the superior court shows that the hearing judge, who apparently had reviewed the probate court transcript prior to the hearing, believed that what had occurred in the probate court was a hearing, not a truncated trial. Because this finding, although not demanded, is not without support, the denial of defendant’s plea in bar must be affirmed.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2569.
    CITY OF ATLANTA v. OKONKWO.
    (456 SE2d 58)
   Pope, Presiding Judge.

Okonkwo was a taxi driver, licensed by the City of Atlanta (“the City”). He was arrested and charged with driving under the influence, and the Municipal Court accepted his plea of nolo contendere. Based on Okonkwo’s plea, the City revoked his license to drive a taxi for five years. Okonkwo’s petition for a writ of certiorari to the Superior Court was granted, see OCGA § 5-4-1 et seq., and the Superior Court reversed the City’s decision. We granted the City’s application for a discretionary appeal and now reverse, though we do so on grounds not urged by the City.

The City based its revocation of Okonkwo’s license on §§ 14-8005 and 14-8008 of the City Ordinance Code. These ordinances provide in pertinent part that the City may revoke a taxi driver’s permit if the driver has been convicted of driving under the influence, and that “[f]or the purposes of this subsection, a plea of nolo contendere . . . shall constitute a conviction.” City Code § 14-8005 (b) (9). In reversing the City’s decision, the Superior Court ruled that the City could not rely on this portion of § 14-8005 (b) (9) because it conflicts with a State statute, OCGA § 17-7-95 (c). OCGA § 17-7-95 (c) generally prohibits the use of a nolo contendere plea against the defendant in any proceeding for any purpose, and further prohibits its use for effecting any civil disqualification of the defendant.

But OCGA § 17-7-95 (c) begins with the words: u[e]xcept as otherwise provided by law.” (Emphasis supplied.) Thus, with respect to professions regulated by the State, the General Assembly has provided that a pharmacist’s license may be revoked based on a plea of nolo contendere, see OCGA § 26-4-78 (a) (3); that a dentist’s license may be revoked based on a plea of nolo contendere, see OCGA § 43-11-47 (a) (4) (A); that a nurse’s license may be revoked based on a plea of nolo contendere, see OCGA § 43-26-11 (1); and that a real estate broker or salesperson’s license may be revoked based on a plea of nolo contendere, see OCGA § 43-40-15 (b) (1) and (2). The City regulates the taxicab industry just as the State regulates these professions, and has promulgated an ordinance analogous to the State statutes cited above. We therefore conclude that, just as the General Assembly intended by the use of the words “except as otherwise provided by law” to except State laws regarding professional licensing from the general prohibition against the use of a nolo plea against a defendant, so too did it intend to except local ordinances dealing with professional licensing where the profession is one regulated by the local government rather than the State. Accordingly, the trial court erred in reversing the City’s decision.

Decided February 10, 1995

Reconsideration denied March 23, 1995

Overtis H. Brantley, Joe M. Harris, Jr., Lisa S. Morchower, Clifford E. Hardwick IV, for appellant.

Kevin F. Forier, for appellee.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2646.
    WEST AMERICAN INSURANCE COMPANY v. MERRITT et al.
    (456 SE2d 225)
   Pope, Presiding Judge.

Richard Detore lost sight in one of his eyes after being struck by a BB fired by Michael Merritt. The record shows that Michael and Richard, both of whom are teenagers, are friends and that they and other friends had walked home from school together on the day in question. Michael proceeded to his house and got his tennis racquet and returned to a nearby tennis court. Richard went to his house and got several BB rifles he owned. Michael was serving a tennis ball when he was struck in the buttocks with a BB fired by Richard. Michael ran after Richard with the intention of hitting him with his fist, but was restrained by another friend. According to Michael’s deposition testimony, he picked up one of the BB rifles Richard had brought from his house and fired it twice at Richard’s legs. The rifle did not discharge on either firing and Michael picked up another BB rifle, and told Richard he had ten seconds to run. Richard did not run on the first count of ten, but started running about half-way through the second count of ten. When Richard was about 35 feet from Michael, he assumed a squatting position and cupped his hands around the sides of his face. Michael testified Richard’s side was to him and that he pumped the gun twice and fired, aiming at Richard’s flank or thigh area. Michael also testified that his intent was for the BB to hit Richard and for Richard to experience the same stinging he had felt in his buttocks when he was struck by the BB fired by Richard.

The Detores filed a lawsuit against the Merritts seeking to recover for Richard’s injuries. Appellant West American Insurance Company filed a declaratory judgment action, seeking a determination of coverage under a homeowners insurance policy it had issued to the Merritts. West American then filed a motion for summary judgment, contending it had no obligation in the matter due to a policy provision excluding coverage for bodily injury expected or intended by the insured. The trial court denied West American’s motion for summary judgment, and issued a certificate of immediate review. We granted West American’s application for interlocutory review, and this appeal followed.

“It is important to remember that the legal issues here rise from contract law and not tort or criminal law. Consequently, policy considerations differ from those in tort and criminal cases. Public policy does not prevent a party from assuming by contract duties more burdensome than those imposed by law because of a party’s right to refuse the contract. The fact that the insurer drafts the policy adds validity to this statement.” State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988). “In applying the rules of construction insurance policy exclusions are construed most strongly against the insurer and in favor of providing the indemnity sought.” (Citation omitted.) Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. 652 (379 SE2d 577) (1989).

This court has had several occasions to address the question of the applicability of exclusionary provisions such as the one at issue in this case. Succinctly stated, if the insured intends some injury, however slight or minor, and a different or greater injury occurs, then the exclusion applies. However, even if the insured acts in an intentional manner, but does not intend or expect for his action to result in injury to another, then the exclusion does not apply. “Thus, there is a recognized distinction between intentional and unintentional results of intentional acts. ‘Intent’ is defined in Restatement, Torts 2d, § 8A (1965) ‘to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.’ ‘On the other hand, the mere knowledge and appreciation of a risk, short of a substantial certainty, is not the equivalent of intent.’ Prosser, The Law of Torts, p. 32 § 8 (4th ed. 1971).” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982). “ ‘(A)n exclusion as to injury caused intentionally by the insured does not exclude coverage where there is an intentional act but not an intentionally caused injury.’ 7 AmJur2d 695, Auto. Ins., § 191.” Southern Guaranty v. Saxon, 190 Ga. App. at 654.

As the trial court in this case found, there is no question that Michael intended to fire the BB at Richard and that he intended for the BB to strike Richard. Michael also testified that his intent was for Richard to experience a stinging pain, and that he did not intend or expect Richard to experience physical injury or harm. Michael further testified that he did not consider the possibility that he might hit Richard somewhere other than the buttocks. Michael testified that he, Richard and others had engaged in “BB war” in the past and that the players were often hit with BB’s but no physical injury had ever resulted. Michael testified that although he wore goggles during these games, the other players did not.

Decided February 23, 1995

Reconsideration denied March 23, 1995.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Jeffrey T. Wise, for appellant.

Samuel P. Pierce, Jr., Freisem, Swann & Malone, John A. Swann, for appellees.

We agree that the trial court properly denied the insurer’s motion for summary judgment under these facts, finding that a fact question remains as to the insured’s intent in this case. This court has made a distinction between intent to cause physical pain, and intent to cause physical injury in the context of insurance exclusionary provisions. Ga. Farm Bureau Mut. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989) (denial of summary judgment to insured proper when kick to the groin was meant to cause bodily discomfort but not injury); Penn. Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987) (summary judgment to insured proper where evidence showed principal intended to inflict pain but not injury while paddling student). “This view is in accord with the general rule, that the three most basic elements of intent within this context ‘appearing both in the Restatement (of Torts Second) and in court usage are that (1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act. . . . It is also essential that the state of mind of intent exist when the act occurs. Additional elements of the concept concern the extent to which the intent may relate to different persons or different consequences from those at issue.’ (Emphasis in text.) Prosser & Keeton on the Law of Torts 33, 34, § 8 (pocket part at p. 15) (5th ed. 1984).” Reliance Ins. Co. v. Walker County, 208 Ga. App. 729, 732 (431 SE2d 700) (1993). See also Ga. Farm Bureau Mut. Ins. Co. v. Purvis, 213 Ga. App. 239 (444 SE2d 109) (1994) (summary judgment to insurer proper where evidence showed injury to the property was intended, although resulting injury was greater than that intended); Roe v. State Farm Fire &c. Co., 188 Ga. App. 368 (373 SE2d 23) (1988), aff'd 259 Ga. 42 (376 SE2d 876) (1989) (injury intended or expected when it naturally and unavoidably flows from criminal misconduct).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.