author: Birdsong, Presiding Judge.

text:
    A97A1168.
    CROXTON v. MSC HOLDING, INC.
    (489 SE2d 77)
   Birdsong, Presiding Judge.

The question in this case is whether a shareholder who has an individual, independent contract requiring him to sell, and the corporation to buy, his shares at a certain time for a minimum price (in this case, $400,000) is in all cases nevertheless limited to the statutory appraisal remedy set forth by OCGA § 14-2-1302 for valuation of shares of dissenting shareholders under Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817 (450 SE2d 814).

George Duke Croxton worked for Magnus Software Corporation since 1992. After NYLIFE, Inc. purchased a majority of the company’s outstanding stock from Croxton and others, Croxton entered a two-year employment agreement with Magnus and NYLIFE, effective April 30, 1994, to April 30, 1996, wherein he agreed to serve as chief executive officer of Magnus Software. The employment agreement also provided that upon Croxton’s termination without cause, “the company shall purchase and employee shall sell one-half of the shares of the company owned by employee on April 30, 1995 and the remainder of employee’s shares of the company on April 30, 1996. (1) The purchase price of each one-half of the shares owned by employee will be equal to the ‘value’ of such shares [as provided herein] or $200,000, whichever is greater.” This provision was part of a comprehensive employment agreement which included detailed provisions for performance of his job, provided for nondisclosure of confidential information and non-compete agreements, and described certain intellectual property which Croxton had developed or conceived.

Croxton was terminated without cause in August 1995. On September 11, 1995, Magnus announced its intent to sell certain corporate assets. Croxton’s attorney gave notice on September 18, 1995, that if the proposed action were taken, Croxton intended to demand payment for his shares as provided in Article 13 of the Georgia Business Corporation Code (the statutory appraisal procedure). In November 1995 Magnus’ assistant secretary sent a “dissenter’s notice form” to Croxton and advised him that pursuant to his notice of intention to demand payment for his shares under OCGA § 14-2-1321, Croxton’s demand for payment must be sent to the corporation on or before December 8, 1995. On December 5, Croxton’s attorney returned the “dissenting shareholder’s form,” which was executed by Croxton and demanded the “fair value” of his stock pursuant to OCGA § 14-2-1302.

Magnus determined that the fair value of Croxton’s shares was $0. Croxton’s attorney notified Magnus that Croxton believed its estimate did not represent the fair value of his shares, and that “inasmuch as Mr. Croxton has contractual rights to sell the shares in question for a consideration not less than $400,000, he estimates that the fair value of [his] shares in question is not less than $400,000 [plus interest]. . . . You may consider this a demand under OCGA § 14-2-1327. If you [are] prepared to settle the demand within the meaning of OCGA § 14-2-1330, we would be pleased to hear from you.”

In March 1996 Magnus filed a petition pursuant to OCGA § 14-2-1330 which it denominated as a “nonjury equitable valuation proceeding to determine the fair value of [Croxton’s] shares.” Croxton answered and counterclaimed for the right to rely on his employment contract which mandated that he sell his shares to Magnus upon his termination without cause and required Magnus to pay the greater of fair market value or $400,000. Attached to Croxton’s answer and counterclaim is his employment contract mandating that, in these circumstances, “the company shall purchase and employee shall sell . . . employee’s shares of the company” for the price quoted above, amounting to the greater of $400,000 or value.

Magnus contended that under Grace Bros. v. Farley Indus., supra, the statutory proceeding for a dissenting shareholder’s demand is Croxton’s exclusive remedy; thus, Magnus moved to dismiss Croxton’s counterclaim based on his contract. The trial court granted Magnus’ motion to dismiss, finding that Croxton’s election to pursue dissenter’s rights barred any claim he might have had under his contract. Croxton appeals. Held:

A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (421 SE2d 286). As to the comparable standard to determining a motion to strike, see West v. Griggs, 144 Ga. App. 285, 286 (241 SE2d 26). Our review of such rulings is de novo. Cobb County v. Jones Group, P.L.C., 218 Ga. App. 149, 153 (460 SE2d 516).

The trial court erred in dismissing Croxton’s counterclaims asserting his right to payment for his shares according to his employment contract. There are independent but concomitant reasons Croxton has not waived or otherwise lost his right to rely on his contract buy-out provisions.

1. MSC Holding contends that Grace Bros, held that a shareholder’s exclusive remedy to obtain payment for his stock is via the statutory appraisal remedy provided in OCGA § 14-2-1302 (b). In other words, MSC Holding contends that a shareholder who has contract obligations requiring him to sell back his shares and governing their sale price may not enforce those contract rights and that those rights are void, or that a shareholder possessed of such valuable contract rights must elect to proceed either according to his contract or according to the statutory rights granted to shareholders generally, in which case he waives the other valuable legal rights. Grace Bros. makes no such holding.

Grace Bros, involved minority shareholders who sued to enforce a merger agreement under which they would be paid $58 per share. Grace Bros, holds, first, that a shareholder’s only action against the corporation is a derivative action, unless that shareholder alleges a “special injury” separate or distinct from that suffered by other shareholders, “or a wrong involving a contractual right of a shareholder which exists independently of any right of the corporation.” Id. at 819; Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584 (397 SE2d 699). The Court held that this requirement was met by those shareholders’ claims that defendants breached their fiduciary duty to them by failing to seek consummation of the original merger agreement; “[t]hat claim asserts an injury separate . . . from any injury to the corporation or the majority shareholders because only the minority shareholders stood to receive $58 per share upon consummation of the merger agreement.” Grace Bros., supra at 819. In a footnote, however, the Court held that those minority shareholders “[could not] maintain this direct claim . . . because the statutory appraisal remedy is exclusive where the shareholder’s objection is essentially a complaint about price,” (emphasis supplied) id. at n. 8, as it was in that case. Further, in Division 3, the Court held that for dissenting shareholders, “[t]he statutory appraisal remedy is exclusive.” Id. at 820. “[The statutory appraisal remedy] permits a dissenting shareholder to be paid the fair value of his shares and preempts any other remedy where the claim is essentially one regarding the price [of] his shares. OCGA § 14-2-1302 (b).” (Emphasis supplied.) Id. at 821 (3). But, “[t]his is not to say that dissenting shareholders have absolutely no remedy. . . . On the contrary, shareholders who object to a merger are entitled to receive the fair value of their shares prior to the effectuation of the merger [cit.][, a]nd any facts which shed light on the value of the dissenting shareholders’ interests are to be considered in arriving at ‘fair value.’ [Cits.]” (Emphasis supplied.) Id.

Grace Bros, thus specifically recognizes that individual shareholders may have individual, independent claims and may have a status which differs from other shareholders. For those who occupy the status of dissenting shareholders, the only remedy is the statutory appraisal procedure if the shareholder’s objection is essentially a complaint regarding the price of his shares. Id. at 819, n. 8.

Several distinctions arise out of this language. Croxton is a shareholder who has an “individual” contract claim, not merely a derivative claim. His injuries are different from those suffered by other shareholders generally, and he may file an individual action for recovery.

Further, unlike the minority shareholders in Grace Bros., Croxton’s claim under his contract is not as a “dissenting shareholder.” Croxton did have standing as a dissenting shareholder for he notified the corporation that if the proposed sale of corporate assets were effectuated, he would demand payment for his shares as provided by statute, and he executed the “dissenter’s demand for payment” form which OCGA § 14-2-1320 (b) required the corporation’s assistant secretary to send him and which the assistant secretary advised him had to be returned by a certain date. But these actions did not constitute an “exclusive” election of remedies by a “dissenting shareholder” because his contract independently and in any event required him to sell and entitled him to a definite sum of $400,000 or more. His complaint was the highly personal complaint for breach of a contract for payment of $400,000 or the “value” of his shares, whichever was greater. Regardless whether there was any corporate action to which he dissented, Croxton’s contract required him to sell, and the corporation to buy, his shares on April 30, 1995, and April 30, 1996. This sale was “Mandatory,” and the promise of specific payment for his shares of $400,000 or more was consideration for his agreement to serve as CEO and for his other promises in his contract. No statutory provision in Title 13 deprives him of his contractual right to payment for his shares as provided in the contract or requires him to “elect” or binds him to an “election.”

2. Further in Croxton’s favor, the dictate in Grace Bros, that the statutory appraisal procedure is exclusive is conditioned on the prerequisite that the shareholders’ objection is “essentially a complaint about price.” Id. at 819, n. 8. Croxton’s actions are not essentially “a complaint about price.” His minimum price is already established. It is pre-established by the parties’ contract that Croxton is to be paid at least $400,000. The “value” of his shares must be established only so the parties can determine whether that value is greater than $400,000. According to the corporation’s valuation under the statutory procedure, the shares’ “value” is $0. If this is confirmed, this establishes Croxton’s entitlement to $400,000 as promised him in his contract for the mandated sale of his shares. Thus, his counterclaims based on his contract are not essentially a “complaint about price” (id.) because the “price” of his shares is pre-established by contract at $400,000, at least. His counterclaims are not invalid under Grace Bros, because they are a demand for $400,000 guaranteed by contract, and not a “complaint about price” of his stock on a market basis.

3. Further, no waiver of claims arises in this case. The corporation’s promise to pay Croxton at least $400,000 had nothing to do with the “value” of the stock unless the value was higher than $400,000, in which case he was entitled to that higher sum. He could pursue his entitlement to the money stated in his contract, and he could pursue the statutory appraisal procedure, even if those remedies were inconsistent (OCGA § 9-2-4), but in this case they were not inconsistent remedies, for in order to determine whether the “value” was higher than $400,000, he was arguably required to file the statutory appraisal procedure to establish that “value.” And, if he did not act to determine this amount within a certain time, he might arguably have given up his right to payment for his shares “under [the Business Corporations article]” (OCGA § 14-2-1323), or so the corporation might claim. Tactically then, Croxton acted not unreasonably in making a demand under the statutory appraisal procedure while intending to rely on his contract rights. Judging by the corporation’s assertion now that the statutory procedure is Croxton’s “exclusive” remedy and that the corporation’s contract promise of payment meant nothing, or that at least Croxton has “elected” to accept only the value by the statutory procedure, it is reasonable to assume that if Croxton had not pursued the statutory procedure, the corporation would deny his entitlement to a sum higher than $400,000- on the ground that it is necessary to ascertain the “value” by statutory procedure in order to determine whether the “value” exceeded $400,000. In the absence of an express statutory provision setting forth his duties and procedures in the circumstances of this case, Croxton was damned if he followed the statutory procedure and damned if he did not. In these circumstances, his filing of the demand cannot be interpreted as an “election” of remedies amounting to a “waiver” of other remedies, for the law will not infer the waiver of an important right such as exists in Croxton’s contract and formed the basis of his agreement to serve as CEO and other agreements in the contract, unless the waiver is clear and unmistakable. Asberry v. State, 221 Ga. App. 809 (472 SE2d 562).

4. Neither Grace Bros, nor any statutory provision estops Croxton to assert his contract rights merely because he first filed a “dissenting shareholder’s demand.” The shoe is on the other foot. The corporation entered a binding contract requiring Croxton to sell his shares, in exchange for which it agreed to pay Croxton the greater of the shares’ “value” or $400,000. This contract was performed, and the corporation is estopped to contend that, in seeking to have the value determined for purposes of satisfying his contract right, Croxton waived his entitlement to the $400,000 payment.

The trial court erred in striking Croxton’s causes of action relating to his contract rights and in striking his “separate defenses” asserting those contract rights.

Judgment reversed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.

Decided July 9, 1997

Mackay, Daniel, King, Hudson & Bryce, David L. G. King, Jr., Robert H. Hishon, for appellant.

Powell, Goldstein, Frazer & Murphy, Hilary Harp, John R. Bielema, Jr., for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0110.
    ANDERSON et al. v. NAVARRO.
    (489 SE2d 40)
   Ruffin, Judge.

This is a medical malpractice case in which the trial court dismissed the appellants’ complaint because they failed to comply with the affidavit requirements of OCGA § 9-11-9.1. We affirm.

The relevant facts are not disputed. On November 29, 1993, Linda and Thomas Anderson filed a medical malpractice action against Romulo Navarro, M.D. The Andersons did not attach an expert affidavit to the complaint, but alleged: ££[t]he affidavit of an expert as required by Georgia Code Annotated Section 9-11-91 [sic] is not attached, but will be filed within 45 days of the filing of this complaint as permitted under the provisions of Georgia Code Annotated Section 9-ll-91(b) [sic].” In his answer, Navarro raised the issue that the Andersons failed to comply with OCGA § 9-11-9.1. On January 13, 1994, the Andersons filed the expert medical affidavit of Dr. Robert Koch.

On August 11, 1994, Navarro moved for summary judgment on the ground that the Andersons failed to comply with the affidavit requirements of OCGA § 9-11-9.1. On August 26,1994, the trial court entered a pretrial order. The Andersons subsequently responded to Navarro’s motion for summary judgment. On January 4, 1995, after Navarro and the Andersons filed supplemental briefs, the trial court heard oral argument on Navarro’s motion. On April 2, 1996, after the parties further supplemented the record, the trial court heard additional oral argument on Navarro’s motion. On that same day, the Andersons, without motion or leave of court, filed an “amendment” to their original complaint in which they attempted to cure the OCGA § 9-11-9.1 deficiencies in their original complaint. The trial court subsequently granted Navarro’s motion and dismissed the Andersons’ complaint due to their failure to comply with OCGA § 9-11-9.1.

OCGA § 9-11-9.1 (a) requires a plaintiff alleging medical malpractice to file an expert affidavit with the complaint. OCGA § 9-11-9.1 (b) provides that “[t]he contemporaneous filing requirement of subsection (a) . . . shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.” (Emphasis supplied.) “Except as allowed under subsection (b)[,] . . . if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” OCGA § 9-11-9.1 (e).

“[I]n order to invoke the protections of subsection (b), the plaintiff must allege in the complaint that because of the time constraints, the expert affidavit could not be prepared. [Cits.]” Keefe v. Northside Hosp., 219 Ga. App. 875, 876 (467 SE2d 9) (1996). “This is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicability of the grace period.” Id.

In this case, the Andersons did not file the affidavit with their complaint as required by OCGA § 9-11-9.1 (a). Neither did they allege that the period of limitation was due to expire within ten days, that an affidavit could not be filed due to the time constraints imposed by the period of limitation, or that the affidavit was available prior to filing their complaint but was not filed due to mistake. Finally, as stated above, the record shows that Navarro asserted in his answer that the Andersons failed to comply with OCGA § 9-11-9.1. Under such circumstances, the Andersons’ complaint failed to comply with the above requirements.

The Andersons argue, however, that they cured the deficiencies with the April 2, 1996 “amendment,” and cite as support for the propriety of the amendment Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649 (481 SE2d 612) (1997). In Glisson, however, the plaintiff “immediately amended the complaint to provide language in full compliance with OCGA § 9-11-9.1 (b).” (Emphasis supplied.) Id. at 652. In the instant case, the Andersons attempted to amend their complaint without leave of court or Navarro’s written consent approximately 20 months after Navarro moved to dismiss the complaint and, more importantly, approximately 19 months after entry of the pretrial order.

Decided June 19, 1997

Reconsideration denied July 10, 1997

Hudson & Solomon, James D. Hudson, for appellants.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., for appellee.

OCGA § 9-11-15 (a) provides that a complaint may be amended after entry of the pretrial order only with leave of court or written consent of the adverse party. Gaul v. Kennedy, 246 Ga. 290 (1) (271 SE2d 196) (1980). In this case, the Andersons had neither leave of court nor consent. Accordingly, the purported amendment did not remedy the OCGA § 9-11-9.1 deficiency in the original complaint. Absent such amendment, and in light of the original deficiency, the trial court properly dismissed the Andersons’ complaint. See Keefe, supra.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

       Thomas Anderson was added as a plaintiff by order of the trial court entered November 9,1995. Pursuant to OCGA § 9-11-15 (c), the amendment related back to the date of the original complaint. See Morris v. Chewning, 201 Ga. App. 658 (411 SE2d 891) (1991).


text:
    A97A0370.
    THOMAS et al. v. DeKALB COUNTY et al.
    (489 SE2d 58)
   Ruffin, Judge.

Minnie Pearl Thomas died after being transported to Grady Memorial Hospital by DeKalb County paramedics Cynthia Studdard and Jeffery Bowman. The executors of Thomas’ estate and her surviving spouse and children sued DeKalb County, Studdard, and Bowman for medical negligence, gross negligence, nuisance, deprivation of rights under 42 USC § 1983, wrongful death and loss of consortium. The trial court granted the defendants’ motion for summary judgment, and the plaintiffs appealed. For reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record in this case shows that DeKalb County is licensed by the State of Georgia to provide ambulance services. On May 21, 1993, DeKalb County paramedics Studdard and Bowman received an emergency call that Thomas was having difficulty breathing and responded to her home. When the two paramedics arrived at the home, two firefighters from DeKalb County were already there. Studdard and Bowman parked their ambulance at the end of the driveway, told the firefighters they could handle the call, and allowed the firefighters to leave the scene.

The paramedics entered the house, and Bowman went to a back bedroom where Thomas was sitting on the edge of a bed. While Bowman was speaking with Thomas about her medical condition and taking her vital signs, Studdard obtained her medical history from family members who were present. Studdard and Bowman then briefly discussed their findings and determined they needed to transport Thomas to the hospital.

Although the plaintiffs presented evidence that there was no “heavy” furniture in the house, the paramedics stated that when they first walked into the house, they determined that they would not be able to get the stretcher to the back bedroom without moving “heavy looking pieces of furniture in the living room.” Based on this observation, Bowman’s experience, his prior medical assessment of Thomas, and the fact that Thomas stated “without any hesitation” that she could walk to the front door, Bowman decided that it would be “medically appropriate” for Thomas to walk approximately eight yards to the front door. Accordingly, while Studdard went to the ambulance to obtain a stretcher, Bowman removed Thomas’ home oxygen in the bedroom and assisted her to the front door. Although Bowman stated that “[d]uring the walk to the door, [Thomas] did not appear to suffer from any strain[,]” a family member stated that “she was gasping for air” and “became exhausted.”

When Bowman and Thomas arrived at the front door, Bowman had Thomas sit in a chair, put her on portable oxygen, and he and Studdard adjusted the stretcher. Both paramedics stated that Thomas became unresponsive halfway up the driveway, at which time Studdard removed the oxygen mask to attend to Thomas’ breathing and prevent aspiration, while Bowman administered a precordial thump. According to a family member, however, after Thomas was placed on the stretcher, she became unconscious. The family member stated that the paramedics pushed her 30 feet down the driveway and into the ambulance before administering any medical treatment.

Bowman and Studdard stated that when they arrived at the ambulance, Bowman administered another precordial thump which converted Thomas to sinus rhythm, and that they decided to put Thomas into the ambulance before working on her farther because all of the equipment they needed was in the ambulance. After putting Thomas in the ambulance, the paramedics attempted to -start an intravenous line and intubate her but were unsuccessful because of her obesity. The paramedics were able, however, to open Thomas’ airway and administer oxygen through another procedure, and Bowman then called for a firefighter to drive the vehicle to the hospital so the two paramedics could continue to treat her. When assistance arrived, Thomas was transported to Grady Memorial Hospital while the two paramedics continued to monitor her breathing. Thomas died at the hospital approximately one week later. Both paramedics stated that they did everything they could to administer the best paramedic assistance within the standard of care recognized for emergency medical service paramedics.

Following the plaintiffs’ complaint and discovery, the defendants moved for summary judgment on the grounds of sovereign immunity, qualified immunity, official immunity and immunity under OCGA § 31-11-8. The plaintiffs enumerate 13 grounds for reversal of the trial court’s grant of summary judgment to the defendants.

1. The plaintiffs’ assertion that the trial court erred in failing to issue findings of fact and conclusions of law is without merit. “The trial court is not required to make express findings of fact and conclusions of law in ruling on motions for summary judgment pursuant to OCGA § 9-11-56.” (Citations and punctuation omitted.) Dixie Diners &c. v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (1) (439 SE2d 53) (1993).

2. The plaintiffs assert that the trial court erred in granting summary judgment because material issues of fact exist concerning whether the defendants were entitled to immunity under OCGA § 31-11-8. We disagree.

In recognition of the public interests served by ensuring that quality, affordable, emergency medical services are available to the people of Georgia, the General Assembly has provided immunity from civil liability to certain providers of such services. See OCGA § 31-11-1 (a); Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 754 (2) (251 SE2d 250) (1978). As the Supreme Court explained in Anderson, the General Assembly has recognized that the expense and difficulty of obtaining insurance, “combined with the virtually unlimited potential civil liability, could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering. The effect, in many areas of the state, would be to make emergency ambulance service virtually unobtainable. In recognition of this, the legislature chose to grant immunity from civil liability to providers of such emergency services who were licensed under the Act.” Id. at 754-755.

OCGA § 31-11-8 (a) thus provides immunity under the following terms: “Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.” The immunity provided by OCGA § 31-11-8 (a) applies “only to those persons who perform the . . . emergency services for no remuneration.” OCGA § 31-11-8 (c). “Persons” protected under the statute include governmental agencies other than those of the United States and, as stated in the statute, agents and employees of those agencies. OCGA §§ 31-11-2 (18); 31-11-8 (a).

In this case, it is undisputed that at the time of Thomas’ emergency call, Studdard and Bowman were employees of DeKalb County, which was properly licensed by the Department of Human Resources to provide ambulance services. It is also clear that although the county charged fees to defray a portion of the costs of the services provided, those fees did not constitute remuneration. Ramsey v. City of Forest Park, 204 Ga. App. 98, 100-101 (2) (d) (418 SE2d 432) (1992). Accordingly, if the defendants rendered the emergency care to Thomas in “good faith,” they would be entitled to immunity from Thomas’ state law claims. See Anderson, supra at 754.

In Anderson, the Court defined “good faith” as “ ‘a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.’ ” (Citation omitted.) Id. at 753 (1). Although in other contexts we have ruled that “good faith” is always a jury question, see, e.g., Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 177 (1) (243 SE2d 528) (1978) (addressing “good faith” under Uniform Commercial Code), we believe that blind application of that rule in this context would defeat the substantial policy considerations underlying the immunity provided by OCGA § 31-11-8. Such an application would force all emergency care providers protected by the statute to incur the substantial costs associated with defending an action through trial, which itself could be enough to “drive many providers of ambulance service out of the business and greatly discourage others from entering.” Anderson, supra at 754. Thus, we believe greater scrutiny should be given to evidence of whether a defendant acted in good faith. Although it is true that evidence of good faith is not easily susceptible of direct proof, “ ‘frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. (Cits.)’ [Cit.]” American Game &c. v. Knighton, 178 Ga. App. 745, 746-747 (2) (344 SE2d 717) (1986).

Throughout their appellate brief, the plaintiffs in this case cite several facts which they contend evidence bad faith: the defendants parked their ambulance at the end of the driveway, dismissed the firefighters from the scene, did not bring all their equipment in the house, removed Thomas’ oxygen in the bedroom, made her walk to the front door, and pushed her 30 feet down the driveway to the ambulance before administering any medical treatment. The entirety of the evidence, however, shows that these, and the other actions taken by the defendants, were all directed at saving Thomas’ life. At the time the paramedics dismissed the firefighters, nothing indicated their presence was necessary. The paramedics quickly entered the home in an emergency situation and evaluated Thomas’ current medical condition and past medical history. Without delay, they determined that hospitalization was necessary and evaluated the safest and most expedient way of transporting her to the ambulance. Even if they did not administer treatment until they pushed her 30 feet to the ambulance, the evidence shows that is where their equipment was located. Once inside the ambulance, the paramedics went to considerable means to restore and maintain a clear breathing passageway.

Finally, plaintiffs cite as evidence expert affidavits of two physicians who concluded that the “breaches of duty in the care and treatment of [Thomas] by the DeKalb County Paramedics” ultimately caused her death. Although the defendants contend that neither physician was competent to render such an opinion, we need not consider that issue here because we find the conclusions of negligence insufficient to create a jury issue. Even if the paramedics exercised bad judgment and acted negligently, such does not amount to a lack of good faith. See Michaels v. Gordon, 211 Ga. App. 470, 473 (2) (b) (439 SE2d 722) (1993). As stated above, “good faith” is “ ‘a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.’ ” (Citation omitted.) Anderson, supra at 753 (1). Nothing in the record evidences a lack of good faith under this definition.

Even if hindsight might show that some things could have been done differently, the totality of the paramedics’ actions shows that throughout the entire incident, both acted in good faith with the intent to save Thomas’ life. Accordingly, because OCGA § 31-11-8 provides immunity against liability for such conduct, the trial court did not err in granting the defendants summary judgment on the plaintiffs’ state law claims.

Decided June 27, 1997

Reconsideration denied July 10, 1997.

Gordon G. Greenhut, for appellants.

Jonathan A. Weintraub, Joan F. Roach, Elizabeth T. Marinetti, for appellees.

3. The trial court also correctly granted the defendants summary judgment on the plaintiffs’ claim under 42 USC § 1983.

“Section 1983 imposes liability where persons acting under color of state law have deprived an individual of a federal constitutional or statutory right. [Cit.]” Hendon v. DeKalb County, 203 Ga. App. 750, 757 (3) (417 SE2d 705) (1992) (physical precedent only). See also Cleveland v. Fulton County, 196 Ga. App. 168, 169 (1) (396 SE2d 2) (1990). The plaintiffs here have cited no evidence showing the paramedics violated any of Thomas’ federal statutory rights and “[flederal constitutional law does not require a state to provide its citizens with protective services in the event of medical emergencies. Even if the state undertakes to provide such services, its failure to render same in a proper manner or in violation of state law does not violate the Due Process Clause of the United States Constitution, unless the state created the medical emergency or the person was in state custody or control at the time of the emergency. [Cits.]” Hendon, supra at 757 (3), citing Cleveland, supra. Because there is no evidence that DeKalb County created Thomas’ emergency, and she was not in the county’s custody or control, the plaintiffs have failed to establish this threshold element necessary to their 42 USC § 1983 claim. Cleveland, supra at 169-170 (1).

4. In light of our conclusions above, it is unnecessary to address the plaintiffs’ remaining assertions that the defendants were not protected by other state and federal law immunities.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0546, A97A0554.
    SOUTHERN GENERAL INSURANCE COMPANY v. ROSS; and vice versa.
    (489 SE2d 53)
   Ruffin, Judge.

These appeals stem from a declaratory judgment action brought by Southern General Insurance Company (“Southern General”) against Barbara Ross and Southern General’s insureds on a liability policy, Willy Barber and Tracy Massie. Southern General and Ross both contest the trial court’s interpretation of policy language requiring the insurer to pay post-judgment interest on a personal injury judgment awarded Ross against Barber and Massie. In her cross-appeal, Ross further claims the trial court erred by refusing to dismiss the declaratory judgment action and realign the parties, and by granting summary judgment to Southern General on her counterclaims for bad-faith failure to settle. For reasons which follow, we affirm in part and reverse in part the trial court’s judgment and remand this case for further proceedings.

We review a trial court’s grant of summary judgment de novo, construing the evidence in favor of the nonmovant to determine if any genuine issue of material fact exists and if the movant was entitled to judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). On December 16, 1991, Ross obtained a personal injury judgment of $545,000 against Barber and Massie. On December 24, 1991, the attorney retained by Southern General to represent Barber and Massie wrote Ross’ attorney and offered “to settle any and all the claims of Barbara Ross against them upon payment of the total sum of $100,000.00.” After Ross refused this offer, the case was appealed to this Court, and we affirmed the personal injury judgment in Massie v. Ross, 211 Ga. App. 354 (439 SE2d 3) (1993). On March 15, 1994, Southern General paid Ross the $100,000 policy limits on behalf of its insureds. However, the parties could not agree on how much, if any, post-judgment interest Southern General might owe under the terms of its policy and reserved that issue for later discussion. The insurer then filed this declaratory judgment action. Although Southern General’s insureds filed no responsive pleadings, Ross filed an answer and counterclaims seeking post-judgment interest and asserting statutory and tort claims for bad-faith failure to settle.

The trial court found the parties to be in controversy over the meaning of a “supplemental payments” provision of the Southern General policy. That provision reads, in relevant part: ‘With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:... (2) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon.” (Emphasis supplied.)

On cross-motions for summary judgment, the trial court found Southern General responsible for paying accrued interest on the entire judgment as opposed to interest on only the portion of the judgment covered by Southern General’s $100,000 policy. The court found that duty to pay interest abated when Southern General tendered its $100,000 limits to Ross in March 1994. It ordered the insurer to pay the post-judgment interest accrued on the judgment before March 15, 1994 and to pay interest on this unpaid interest amount at a 12 percent rate between March 15, 1994 and the date of the court’s order. Although Ross obtained from Massie an assignment of Massie’s potential cause of action for bad-faith failure to settle, the trial court found that assignment ineffective to allow Ross to pursue the claim against Southern General. Therefore the court granted Southern General’s motion for summary judgment on Ross’ statutory and tort bad-faith counterclaims.

Case No. A97A0546

1. In its first enumeration of error, Southern General claims it owed no post-judgment interest because it “tendered” to Ross the amount of the policy limits by means of the settlement offer it made on December 24, 1991. We disagree. Pursuant to OCGA § 13-4-24, an effective tender “must be certain and unconditional, except for a receipt in full or delivery of the obligation. . . . The tender must be in full payment of the specific debt, and not in part. ...” A tender conditioned on a release of “all claims,” which includes claims not included within the obligation at hand, is not effective. See Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 110-111 (1) (115 SE2d 852) (1960).

Here, Southern General attempted to stop its accrual of interest under the policy by “tendering” its policy limits. But as the “tender” letter of December 24, 1991, makes clear, it offered those policy limits only in exchange for a release of the remaining amount owed by its insureds, a debt of $445,000. The trial court did not err in finding this first tender ineffective, as Southern General was not allowed to condition this partial payment upon a forgiveness of the entire debt. See Adcock v. Sutton, 224 Ga. 505, 507-508 (162 SE2d 732) (1968). Southern General’s citation to Ins. Co. of Penn. v. Giles, 196 Ga. App. 271 (395 SE2d 833) (1990), has no bearing on this issue. In Giles, we determined the attorneys for the insurer and the claimant had made a pre-trial agreement to divide the policy limits at the conclusion of several ongoing lawsuits. See id. at 273-274.

2. Southern General next argues that its policy language required it to pay post-judgment interest only on the amount of the judgment covered by its policy limits: $100,000. The trial court did not err in rejecting this argument. The plain language of the policy states that Southern General will pay “all interest accruing after entry of judgment.” To the extent the phrase may be ambiguous, it is construed against the insurer. See Ropar v. Travelers Ins. Co., 205 Ga. App. 249, 252 (2) (422 SE2d 34) (1992). The policy states that Southern General’s duty to pay interest abates when the company has paid “such part of the judgment as does not exceed the limit of the company’s liability thereon” (Emphasis supplied.) The fact that Southern General did not use this latter language to qualify the payment of post-judgment interest would lead a reasonable person to conclude the insurer would pay interest on the entire judgment. See Bartlett v. American Alliance Ins. Co., 206 Ga. App. 252, 255 (2) (424 SE2d 825) (1992) (insurance contracts given a reasonable layperson’s interpretation).

Although Southern General cites older cases from other jurisdictions holding to the contrary, authority shows a majority of jurisdictions would find this language requires an insurer to pay interest on the entire judgment. See 8A Appleman Ins. Law & Practice, p. 79, § 4894.25 (1981 & Supp. 1997); McPhee v. American Motorists Ins. Co., 205 NW2d 152, 155-156 (Wis. 1973); Stamps v. Consolidated Underwriters, 493 P2d 246, 249 (Kan. 1972); Mayberry v. Home Ins. Co., 142 SE2d 626, 631-632 (N.C. 1965). See also Southeast Atlantic Cargo &c. v. First State Ins. Co., 216 Ga. App. 791, 794 (2) (456 SE2d 101) (1995), in which we interpreted an insurance policy provision requiring the insurer to pay “ ‘all [post-judgment] interest on the entire amount of any judgment. . . .’” (Emphasis omitted.) The trial court did not err in ordering Southern General to pay post-judgment interest accruing between the date of the judgment and March 15, 1994, the date the insurer paid Ross its policy limits.

3. We -find merit, however, in Southern General’s claim that the trial court erred in ordering the insurer to pay additional interest, at an annual rate of 12 percent, on this post-judgment interest. First, contrary to Ross’ claim in her cross-appeal, Southern General’s duty to pay post-judgment interest abated when it paid $100,000, representing that part of the $545,000 judgment owed under its policy. According to the policy language, once Southern General paid the portion of the judgment for which it was liable, its duty to pay interest abated even though it had not paid the interest accrued to that point.

Second, pursuant to OCGA § 9-12-10, “[n]o part of the judgment shall bear interest except the principal which is due on the original debt.” To the extent the trial court awarded post-judgment interest on interest, its ruling was error. See State Hwy. Dept. v. Godfrey, 118 Ga. App. 560, 561 (2) (164 SE2d 340) (1968). Furthermore, to the extent the amounts at issue in the declaratory judgment action may have been subject to a claim for prejudgment interest, nothing in the record before us indicates such a claim was made by Ross or ruled upon by the trial court. Therefore, we vacate that portion of the trial court’s award which represents interest on post-judgment interest and remand this case with direction that those amounts be struck from the trial court’s final order.

Case No. A97A0554

4. In her cross-appeal, Ross claims the trial court erred in not dismissing the declaratory judgment action for failure to state a claim. We disagree.

In support of her motion, Ross relies chiefly on Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16, 18-19 (276 SE2d 78) (1981). That case, however, was overruled sub silentio by Atlanta Cas. Co. v. Fountain, 262 Ga. 16 (413 SE2d 450) (1992). See Southern Guaranty Ins. Co. v. Hulsey, 204 Ga. App. 508, 510 (1) (420 SE2d 54) (1992). Under Fountain, an insurer may bring a declaratory judgment action where (1) an insured has demanded payment; (2) the insurer has not denied the claim; (3) a legitimate question exists as to the validity and applicability of the policy provision at issue; and (4) the existing Georgia law does not provide a clear answer. Id. at 18. A declaratory judgment action is available where an insurer seeks to determine the validity of a post-judgment demand. Morgan v. Guaranty Nat. Cos., 223 Ga. App. 41, 42 (1) (477 SE2d 26) (1996).

Here, the affidavit of Ross’ attorney shows that after Southern General tendered the policy limits, a “dispute” arose over the amount of post-judgment interest due under the supplemental payments provision. We found no Georgia precedent interpreting this exact provision, and the parties cited authority supporting divergent interpretations. The record shows that after this dispute arose, Southern General timely moved for a declaration of the parties’ legal rights. The trial court did not err by finding this question a proper one for declaratory judgment. See Fountain, supra.

5. Because the trial court did not err in refusing to dismiss the declaratory judgment action, it did not err in failing to realign the parties.

6. For the reasons discussed in Division 3, supra, we have rejected Ross’ claims that Southern General’s duty to pay post-judgment interest did not abate until it paid both its policy limits and all post-judgment interest accrued to that date.

7. In her final enumeration, Ross claims the trial court erred in granting summary judgment to Southern General on her counterclaim for bad-faith failure to settle. The trial court made this ruling because it found Ross had no standing to pursue Massie’s bad-faith claims, even though Massie assigned that claim to Ross.

We find the trial court properly granted summary judgment on the claims for statutory penalties made pursuant to OCGA § 33-4-6. As the trial court found, those statutory claims may be made only by the insured. See Owens v. Allstate Ins. Co., 216 Ga. App. 650, 651 (1) (455 SE2d 368) (1995) (physical precedent only); Allstate Ins. Co. v. Harris, 133 Ga. App. 567, 571 (3) (211 SE2d 783) (1974) (physical precedent only).

However, insofar as the trial court based its ruling on a determination that a tort claim for bad-faith failure to settle may not be assigned, its ruling was error. Pursuant to OCGA § 44-12-24, “a right of action is assignable if it involves, directly or indirectly, a right of property.” A party may assign a cause of action involving a tortious injury to his property. See Barnes v. Collins, 205 Ga. App. 750 (423 SE2d 308) (1992). A claim for bad-faith failure to settle sounds in tort and involves, at least in part, a claim that the insurer’s conduct exposed the insured’s personal property to loss. See Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 761 (2) (409 SE2d 852) (1991), rev’d in part on other grounds, 262 Ga. 267 (416 SE2d 274) (1992). Although in Owens, supra, we rejected an attempt to assign a claim for statutory penalties and attorney fees arising from a bad-faith failure to settle, we have not held that a tort cause of action for compensatory damages for loss of property resulting from an insurer’s bad faith may not be assigned. In fact, this Court recently indicated in Jefferson Ins. Co. &c. v. Dunn, 224 Ga. App. 732, 741 (7) (482 SE2d 383) (1997), that such a claim may he assigned. Therefore, the trial court erred by granting summary judgment to Southern General on this counterclaim.

We note that because Ross had not acquired Massie’s right of action at the time she filed her responsive pleading to Southern General’s declaratory judgment complaint, this counterclaim for bad-faith failure to settle was permissive rather than compulsory, and the trial court had discretion in determining whether to allow Ross to raise it in this action. See OCGA § 9-11-13 (e); Wagner v. Howell Enterprises, 184 Ga. App. 394, 395 (2) (361 SE2d 698) (1987). Furthermore, the assigned claim would be subject to any defenses the insurer could assert against Massie. See American Security Van Lines v. Amoco Oil Co., 133 Ga. App. 368, 371 (210 SE2d 832) (1974). But because the trial court merely granted summary judgment on this claim on an erroneous basis, without addressing these other issues, its ruling is error and must be reversed.

Decided June 27, 1997

Reconsideration denied July 10, 1997

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Johnathan T. Krawcheck, J. Kenneth Moorman, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellee.

Judgment affirmed in part, reversed in part, and remanded with direction.

Birdsong, P. J., and Eldridge, J., concur.

       Although the judgment was originally for $575,000, only $545,000 remained unpaid on the original and amended judgments after the trial court took into account the payment of no-fault benefits and a $25,000 payment by the co-defendant.

       We note that the trial court also properly rejected Ross’ attempts to assert Barber’s tort claims for Southern General’s bad-faith failure to settle, as Ross, who was not an insured and had received no assignment of Barber’s claim, had no standing to do so. See Francis v. Newton, 75 Ga. App. 341, 344 (1) (43 SE2d 282) (1947).


text:
    A97A0690.
    A97A0691.
    CELLULAR ONE, INC. v. EMANUEL COUNTY. ALLTEL MOBILE COMMUNICATIONS OF GEORGIA, INC. v. EMANUEL COUNTY.
    (489 SE2d 50)
   Ruffin, Judge.

Emanuel County filed two class actions against Cellular One, Inc. and Alltel Mobile Communications of Georgia, Inc. (“defendants”). In both actions, Emanuel County alleged that the defendants were collecting local option sales taxes from their customers but were not properly reporting the collection of the taxes to the State Revenue Commissioner (“commissioner”). Emanuel County further alleged that, as a result of the improper reporting, it and other similarly situated counties were not receiving the proper amount of local tax revenues from the commissioner. In both actions Emanuel County is attempting to collect the reduced revenues and damages for loss of use of the revenues directly from the defendants.

The defendants denied liability to Emanuel County and filed motions to dismiss the complaints for failure to state a claim. The trial court denied the motions, and we granted the defendants’ applications for interlocutory appeal. Because both appeals raise the identical issue, we will consider them jointly. For reasons which follow, we reverse the trial court in both cases.

“A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. ... In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.” (Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

Under this standard, we will assume, based on Emanuel County’s complaint that it can prove that the defendants collected the sales taxes from their customers, that they have not properly reported and remitted the taxes to the commissioner, and that Emanuel County has been injured by its receipt of reduced tax revenues. We must now decide whether these facts establish a cause of action against the defendants to recover the alleged damages. In deciding this issue, we turn our attention to the statutory provisions which provide for the administration and collection of taxes to determine whether the legislature expressly or impliedly intended to allow this right of action. See OCGA § 1-3-1 (a).

Under Georgia law, counties which have complied with certain statutory procedures are authorized to impose local sales taxes. OCGA §§ 48-8-82; 48-8-110. The administration and collection of these local sales taxes are generally governed by OCGA §§ 48-8-87 and 48-8-113, which provide that the taxes are to be “exclusively administered and collected by the commissioner for the use and benefit of [the] county. . . . Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter. . . .” (Emphasis supplied.)

Article 1 clearly authorizes and obligates the commissioner, and no other entity, to collect the taxes. Under the administrative scheme established by Article 1, the dealer or merchant (“dealer”) is required to “collect the tax imposed . . . from the purchaser or consumer and . . . pay the tax over to the commissioner as provided by law.” OCGA § 48-8-33. See also OCGA § 48-8-30 (b) (1) and (f) (1) providing that the dealer is required to “remit the tax to the commissioner as provided in this article” and, when received by the commissioner, the tax shall be a credit against the tax imposed on the dealer. (Emphasis supplied.) After collecting the tax and deducting an administrative fee, the commissioner is required to distribute the remaining proceeds to the local government. OCGA §§ 48-8-89 (a); 48-8-115.

Under this scheme, the dealer collects the tax from the purchaser and pays the tax to the commissioner. OCGA § 48-8-33. Accordingly the dealer is required to file returns with the commissioner, (OCGA § 48-8-49) and maintain books, records, and other information required by the commissioner. OCGA §§ 48-8-49; 48-8-52. If a dealer fails to file a return, files a false return, “or otherwise fails to comply with [Article 1] . . . , the commissioner shall give the dealer ten days’ notice in writing prior to requiring the dealer to appear before him or his assistant with the books, records, and papers required by the commissioner which relate to the business of the dealer. . . .” OCGA § 48-8-55 (a). Any dealer who fails to collect the tax is “liable for and shall pay the tax himself.” OCGA § 48-8-35. If the tax becomes delinquent, the commissioner is required to issue a fi. fa. for the collection of the tax and impose penalties for the failure to pay the tax. OCGA §§ 48-8-56; 48-8-66. If a dealer is chronically delinquent in paying taxes, the commissioner can require the dealer to post a bond, and if necessary, the commissioner can sell any security deposited with him or her. OCGA § 48-8-57. Article 1 similarly provides criminal penalties for violations of its provisions. See OCGA §§ 48-8-10; 48-8-11.

OCGA §§ 48-8-95 and 48-8-119 further vest the commissioner with “the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax authorized to be imposed by [Article 1].” Those rules and regulations, which are compiled in Chapters 560-12-1-.01 through 560-12-6-.09 of the Rules & Regulations of the State of Georgia, provide extensive substantive and procedural requirements too numerous to list here. It should be noted, however, that Subchapter 560-12-1-.01 (7) provides an aggrieved party in a tax controversy the opportunity for a conference in the regional office of the Department of Revenue and a de novo review of the outcome. And, although Subchapters 560-12-5-.09 (1) and.560-12-6-.09 (1) clearly provide the dealer with a private right of action to collect unpaid taxes from a purchaser, there is no provision giving a county a similar right of action against a dealer who fails to properly remit the tax to the commissioner.

In summary, although Article 1 and the tax revenue rules and regulations provide a comprehensive scheme for the administration and collection of the local taxes, these authorities provide no express right of action for counties to sue dealers who fail to properly remit the taxes.

Neither do we find that the legislature intended to create or allow an implied right of action. See OCGA § 1-3-1 (a). “In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. [Cit.]” Williams v. Bear’s Den, 214 Ga. 240, 242 (104 SE2d 230) (1958). Although this is a case of first impression in this state, in Middlesex County Sewerage Auth. v. Nat. Sea Clammers Assn., 453 U. S. 1 (101 SC 2615, 69 LE2d 435) (1981), the United States Supreme Court examined whether Congress intended to create a private right of action under a federal statute that also contained extensive enforcement provisions. In Sea Clammers, the Court reviewed the enforcement and remedial provisions contained in the Federal Water Pollution Control Act and found that “[i]n view of [the] elaborate enforcement provisions [contained in the Act] it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under [the Act]. . . . ‘[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’ [Cits.]” Id. at 14-15.

Decided June 25, 1997

Reconsideration denied July 10, 1997

Merrill, Stone & Parks, Charles B. Merrill, Jr., for appellant (case no. A97A0690).

Bouhan, Williams & Levy, Roy E. Paul, for appellant (case no. A97A0691).

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Dye, Tucker, Everitt, Wheale & Long, John B. Long, Jones & Smith, Julian B. Smith, Jr., Savage & Turner, Brent J. Savage, Cheney, Walters & McCollough, Curtis V. Cheney, Jr., for appellee.

Considering the comprehensive administrative scheme provided by the Georgia statutes and the Department of Revenue’s rules and regulations, which include remedies for the failure to properly remit the taxes and an administrative forum for the resolution of controversies concerning the taxes, we conclude that the legislature did not intend for counties to have an independent right of action against dealers for damages resulting from the improper remittance of local sales taxes administered and collected by the commissioner. Rather, in light of the total administrative scheme, we find that the legislature’s provision that the taxes are to be “exclusively administered and collected by the commissioner” precludes such action. (Emphasis supplied.) See OCGA §§ 48-8-87; 48-8-113. Any other result would allow tax beneficiaries such as Emanuel County to sue any taxpayer or dealers for failing to properly remit a tax, a situation which we believe would severely frustrate the orderly administration and collection of taxes by the commissioner. It defies logic to assume that the legislature intended such a scheme, and in the absence of any indicia to the contrary, we are compelled to conclude that the legislature “provided precisely the remedies it considered appropriate.” Sea Clammers, supra at 15.

Accordingly, because Emanuel County cannot maintain an independent cause of action against the defendants, the trial court erred in denying the motions to dismiss.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A1113.
    A97A1114.
    A97A1115.
    A97A1116.
    BISHOP et al. v. FARHAT et al. BAXTER HEALTHCARE CORPORATION et al. v. BISHOP et al. ANSELL, INC. v. BISHOP et al. DELTA MEDICAL SYSTEMS, INC. v. BISHOP et al.
    (489 SE2d 323)
   Ruffin, Judge.

Jill Bishop, a nurse, filed this complex products liability action against several manufacturers and distributors of latex examination and surgical gloves. Bishop claims that her use of the defendants’ gloves in her work with doctors’ offices and hospitals over the course of several years caused her to develop a severe allergy to the proteins contained in latex. She alleges that on February 5, 1993, she had become so sensitive to these latex proteins that she suffered a severe allergic reaction and, since that time, has been unable to resume employment. Among her other causes of action, Bishop claims the defendants breached their duties to warn her of the risk of latex allergy and negligently inflicted emotional distress upon her. Bishop’s husband, Terrell, has made claims against the defendants for loss of consortium.

Before this Court are several appeals involving issues raised by the Bishops and by defendants Baxter Healthcare Corporation (“Baxter”); Ansell, Inc. (“Ansell”); and Delta Medical Systems, Inc. (“Delta”). In Case No. A97A1113, the Bishops claim the trial court erred by refusing to allow them to amend their complaint to substitute another manufacturer, Safeskin Corporation (“Safeskin”), for “John Doe 1.” The Bishops also claim error in the trial court’s dismissal of their claim for negligent infliction of emotional distress. In Case No. A97A1114, defendant Baxter claims the trial court should have granted its motion for summary judgment based on the statute of limitation. In Case No. A97A1115, defendant Ansell appeals the denial of its motions for summary judgment based on the statute of limitation and proximate cause arguments. In Case No. A97A1116, defendant Delta appeals, claiming the trial court should have granted it summary judgment because (1) the statute of limitation had expired and (2) it had no actual or constructive knowledge of the danger of latex allergy.

Case No. Á97A1113: The Bishops’ Appeal

1. In their first enumeration of error, the Bishops claim the trial court erred when it denied their motion to substitute Safeskin Corporation for a “John Doe” defendant in this action. The original complaint filed in February 1995 named as additional defendants “John Does 1-10,” alleged to be unknown parties “who were involved in the design, manufacture, distribution, assembly, packaging and/or chain of distribution” of the latex gloves at issue. In an amended complaint filed on January 19, 1996, the Bishops sought to substitute Safeskin for “John Doe 1.” The Bishops alleged that Safeskin “knew or should have known that, but for a mistake concerning the identity of the manufacturer of [gloves sold by defendant Delta], the action would have been brought against Safeskin within the limitations period.” The trial court, exercising discretion pursuant to OCGA § 9-11-21, found the Bishops had prejudiced Safeskin through their unnecessary delay in adding the company as a defendant. See, e.g., Shiver v. Norfolk-Southern R. Co., 220 Ga. App. 483, 484 (469 SE2d 769) (1996).

We find the trial court erred in exercising discretion under OCGA § 9-11-21, for that statute does not apply when a plaintiff seeks to substitute a named defendant for a “John Doe.” See Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (1) (380 SE2d 78) (1989) (physical precedent only); Larson v. C. W. Matthews Contracting Co., 182 Ga. App. 356, 357 (1) (356 SE2d 35) (1987) (physical precedent only). The applicable procedure is that set forth in OCGA § 9-11-15 (c), by which the trial court determines whether the amended complaint “relates back” to a filing within the statute of limitation. So long as the claim against the new party arises out of the same transaction or occurrence alleged in the original complaint, this statute requires the trial court to determine only whether (1) the new defendant received such notice of the action that it will not be prejudiced by defending on the merits, and (2) the new defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. OCGA § 9-11-15 (c); Larson, supra at 357 (2). Where the defendant shows that one of these two elements has not been met, the burden shifts to the plaintiff to show they were met. American Transport v. Thompson, 218 Ga. App. 54, 55-56 (460 SE2d 298) (1995). Although the trial court must determine whether the amendment relates back, the party seeking to amend its complaint pursuant to OCGA § 9-11-15 need not seek leave of court to file its amendment unless a pre-trial order has been entered. See Larson, supra at 357.

Here, the trial court did not determine whether Safeskin received notice of the action before the statute of limitation expired, or whether Safeskin would be prejudiced by having to defend this action on the merits. We note that because the trial court found the Bishops’ delay inexcusable under OCGA § 9-11-21, it did not address their request for additional time to show that Safeskin had adequate notice of these claims. Because the trial court has not yet addressed that request, this Court will not do so. The trial court’s ruling is, therefore, reversed, and the matter is remanded for further determination pursuant to OCGA § 9-11-15 (c).

2. In their second enumeration, the Bishops contend the trial court erred by dismissing their claims for negligent infliction of emotional distress. This enumeration is without merit. In Georgia, “the impact which will support a claim for damages for emotional distress must result in a physical injury.” OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 666 (2) (A) (386 SE2d 146) (1989); see also Ford v. Whipple, 225 Ga. App. 276 (483 SE2d 591) (1997). We do not interpret the trial court’s decision to prohibit the Bishops from recovering damages if they can show that a physical injury caused emotional distress, pain, and suffering.

Case No. A97A1114: Baxter’s Appeal

3. Baxter appeals the trial court’s denial of its motion for summary judgment based on the expiration of the statute of limitation. On appeal from the denial of a motion for summary judgment, we construe the evidence and all reasonable inferences from the evidence most strongly in favor of the non-movant, and review the trial court’s ruling de novo under the standard set forth in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). A defendant seeking summary judgment who does not bear the burden of proof at trial “must demonstrate by reference to 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.” Id.

“[Fjailure to warn of a hazard capable of producing an injury due to continued exposure constitutes a continuing tort, which ‘accrues’ when the failure to warn is discovered by the injured plaintiff. [Cit.]” Miles v. Ashland Chem. Co., 261 Ga. 726, 727 (410 SE2d 290) (1991). The statute .of limitation does not begin to run until the victim is warned of the danger, discovers it, or should in the exercise of ordinary care have otherwise learned of it. Marbut v. PPG Indus., 148 Ga. App. 721 (252 SE2d 628) (1979). Bishop claims that on February 5, 1993, she suffered a severe allergic reaction to a latex glove. She and her husband filed this suit on February 3, 1995, within the two-year limitation period for personal injury and the four-year period provided for loss of consortium by OCGA § 9-3-33. Baxter, however, claims that Bishop suffered allergic reactions to latex gloves as far back as 1990. Because she “knew or should have known” of her allergy to latex at this earlier date, Baxter argues, the Bishops’ action for personal injury and loss of consortium is time-barred.

In support of its motion, Baxter produced a statement Bishop made to a risk manager shortly after her severe allergic reaction in February 1993. When the adjuster asked whether she had previously “noticed reactions from rubber gloves before with powder on them and stuff,” Bishop stated, ‘Yeah. See, I knew I was allergic to them, I knew for a fact that I was allergic.” Baxter also produced an affidavit from Bishop’s physician, Dr. Boyd, showing his medical notes reflected that “she had been allergic to latex gloves since experiencing [an illness]” in 1990.

Bishop countered that she did not know before February 1993 of her latex allergy; rather, she believed the powdered cornstarch used as a coating in some of the gloves she wore was causing her problems. The record shows that Bishop has worn latex gloves in her work since 1987. In the summer of 1992, while wearing powdered latex gloves apparently made by Baxter, she began to suffer itchy, watery eyes. In July 1992, her left arm became red and itchy while wearing powdered latex gloves. Bishop then switched to non-powdered gloves and, although she had some symptoms over the following months, attributed those problems to other causes or to the fact that others with whom she worked wore powdered gloves. She produced a different supporting affidavit from Dr. Boyd, who clarified that Bishop had not necessarily told him she had an “allergy to gloves” beginning in 1990. Furthermore, the affidavit of co-worker Joyce Hooker, submitted by Baxter in support of its motion for summary judgment, confirms that as a result of these problems Bishop requested that Hooker order only non-powdered gloves for use in their medical office.

Here, Bishop’s argument is that because Baxter failed to warn her that wearing latex gloves could cause her to become sensitized to latex proteins, she mistakenly believed she was sensitive to a powder coating in the gloves and could remedy that problem by avoiding the powder. Under the circumstances, whether her beliefs and actions were reasonable may not be determined on summary judgment. “The occurrence of ‘an injury’ [cit.] means the discovery of the particular injury for which the action is brought.” Anderson v. Sybron Corp., 165 Ga. App. 566, 567-568 (299 SE2d 160) (1983), aff’d, 251 Ga. 593 (310 SE2d 232) (1983). This evidence creates a jury issue as to whether Bishop “knew or through reasonable diligence should have discovered that [her] injury resulted from [Baxter’s failure to warn] before or after the two years preceding the filing of [her] suit.” King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 SE2d 252) (1981).

Our holding does not allow Bishop to “split” the product by arguing that she knew it was dangerous, but did not know which part was dangerous. Rather, our opinion merely holds that a jury question exists as to whether Bishop should have known the cause of her problem. Even though Bishop had a reaction she associated with powder in the gloves, a jury question exists as to when she should have associated her problems with “latex allergy.” See Andel v. Getz Svcs., 197 Ga. App. 653, 655 (1) (399 SE2d 226) (1990), overruled on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (2) (b) (446 SE2d 741) (1994).

Case No. A97A1115: Ansell’s Appeal

4. In its first enumeration of error, Ansell argues that because Bishop stopped using its brand of powdered gloves in July 1992, at a time before she became “sensitized” to latex, its product could not have caused her injury. However, Bishop’s expert, Dr. Sullivan, testified to a reasonable degree of medical certainty that Bishop’s use of Ansell’s gloves “contributed to [her] sensitization to latex.” Expert testimony can sometimes prevent summary judgment. Bob v. Hardy, 222 Ga. App. 550, 555 (6) (474 SE2d 658) (1996). Here, although other products may have caused Bishop to become sensitive, the evidence does not exclude the inference that Ansell’s product was a contributing cause. See Deans v. Dain Mgmt., 201 Ga. App. 466, 468-469 (1) (411 SE2d 354) (1991). Although Ansell points to these other potential causes of Bishop’s injury, a jury question remains concerning which of the latex sources caused'the injury. See Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990). In the cases Ansell cites, the plaintiffs showed no evidence that they had ever been exposed to a product made by the defendant. See Blackston v. Shook &c. Insulation Co., 764 F2d 1480, 1482-1483 (11th Cir. 1985); Talley v. City Tank Corp., 158 Ga. App. 130, 134-135 (3) (279 SE2d 264) (1981). Here, the question is not exposure, but causation.

We disagree with Ansell’s argument that Dr.' Sullivan’s affidavit is too “speculative” to create an issue of fact on the element of causation. Dr. Sullivan testified to his expertise and stated that, based upon Bishop’s descriptions of her use of the gloves and her prior reactions to the gloves, it was his opinion that Ansell’s gloves contributed to her condition. The expert’s lack of knowledge as to the exact latex content of Ansell’s gloves and Bishop’s exposure to other latex-containing products goes to the weight and credibility of his testimony but does not give the court reason to exclude the testimony completely. See Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 591-593 (4) (452 SE2d 159) (1994); Jones v. Ray, 159 Ga. App. 734, 736 (4) (285 SE2d 42) (1981). 5. In its second enumeration of error, Ansell adopts Baxter’s argument regarding the statute of limitation defense. This enumeration is without merit for the reasons discussed in Division 3, supra.

Case No. A97A1116: Delta’s Appeal

6. Delta was the distributor of nonpowdered, “hypoallergenic” gloves which Bishop allegedly wore after July 1992. It asserts error in the trial court’s denial of its motion for summary judgment. Delta argues that because it had no knowledge of any dangers of latex allergy, it had no duty to warn Bishop. As a distributor, Delta could be held liable for negligent failure to warn only if, at the time of the sale, it had “actual or constructive knowledge” that its product created a danger for the consumer. See Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 780 (2) (b) (386 SE2d 696) (1989); Beam v. Omark Indus., 143 Ga. App. 142, 145 (1) (b) (237 SE2d 607) (1977). The seller is required to warn if he “ ‘has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge’ of the danger[.] [Cit.]” Chrysler Corp. v. Batten, 264 Ga. 723, 725 (1) (450 SE2d 208) (1994).

Although Delta may have had no actual knowledge of the dangers of latex allergy prior to March 1993, the record indicates the company had received complaints that its competitors’ powdered latex gloves caused itching and chafing of wearers’ hands. As Delta’s president testified, before February 1993, he (much like Bishop) assumed the powder in his competitors’ gloves caused this problem. Bishop’s expert testified, however, that latex allergy has been documented in medical literature and “universally recognized by experts in this area” since 1979. Severe reactions, he added, have been reported in medical literature since 1986, and the Food & Drug Administration issued a “medical alert” regarding latex-containing medical devices in March 1991. Given this evidence, whether Delta should have reasonably known of the danger of latex allergy between July 1992 and February 1993 is a jury question, as is the question of whether such knowledge would have required Delta to refrain from labeling its gloves “hypoallergenic.” Compare Stiltjes, supra.

7. Delta’s challenge to the trial court’s denial of its motion for summary judgment based on the expiration of the statute of limitation is rejected for the reasons outlined in Division 3, supra.

Judgment in Case No. A97A1113 affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Judgments in Case Nos. A97A1114, A97A1115, and A97A1116 affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Decided June 17, 1997

Reconsideration denied July 10, 1997

Meadows, Ichter & Trigg, Lauren S. Antonio, Steven M. Kushner, Doffermyre, Shields, Canfield & Knowles, Ralph I. Knowles, Jr., for Bishop et al.

Yamin Farhat, pro se.

Alembik, Fine & Callner, Lowell S. Fine, Heidi K. Martin, for Safeskin Corporation and Delta Medical Systems, Inc.

Alston & Bird, Bernard Taylor, Laura L. Owens, James C. Grant, G. Conley Ingram, for Baxter Healthcare Corporation.

Love & Willingham, John A. Gilleland, Richard J. Warren, for Ansell, Inc.