text:
    A95A2653, A95A2654.
    CARRAGHER v. HARMAN et al.; and vice versa.
    (469 SE2d 443)
   Smith, Judge.

Katherine Harman brought this action on indebtedness against her former business partner, Paulette Carragher. Subsequently, Carragher filed a third-party action against Dale Harman, Katherine’s husband. Carragher appeals from the judgment entered on the jury verdict in favor of Katherine and Dale Harman.

Although the precise nature of the business relationship between Carragher and Katherine Harman (“Harman”) is disputed, there is no dispute that the two women operated a business together called “The Corner Cupboard,” a business engaged in the interior design of homes and offices and the purchase and sale of furniture. They operated the business together from approximately 1978 through 1986. While working together, Carragher and Harman were plaintiffs in an action concerning a defective rug. They brought the action as “Katharine Ross Harman and Paulette Carragher, d/b/a The Corner Cupboard.” Harman’s husband’s law firm (“the Harman firm”) initially represented Harman and Carragher. On May 6, 1988, Robert Feagin filed a notice of appearance reciting that he “should be listed as additional counsel of record for Plaintiffs in their Yost claim against [defendants]. . . .” (Emphasis supplied.) In preparation for litigation of the potential Yost claim, Feagin took two depositions and familiarized himself with the underlying litigation. Shortly after Feagin entered an appearance in the case, on the day trial was to begin, the case was settled. Feagin was listed as a payee on two settlement checks.

Subsequently, the business relationship between Harman and Carragher deteriorated, and Feagin filed this action on Harman’s behalf against Carragher. The action sought recovery of debts allegedly owed by Carragher to Harman, including recovery of half the expenses from the prior litigation. Carragher then filed a motion to disqualify Feagin, which was denied without explanation by the trial court. Following a seven-day trial several months later, the jury awarded Harman $75,000, plus $5,250 interest against Carragher. The jury also found in favor of Dale Harman. Carragher appeals, raising several contentions. We reach only her contention that the trial court erroneously denied her motion to disqualify Feagin as counsel for the Harmans. We agree that the trial court erroneously denied Carragher’s motion to disqualify, and we therefore reverse.

A party seeking disqualification “need only show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him. If such a substantial relationship between the cases is shown, the court will then irrebuttably presume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation.” (Citations and punctuation omitted.) Summerlin v. Johnson, 176 Ga. App. 336, 337 (1), 338 (335 SE2d 879) (1985).

1. We disagree with Harman’s contention that this case and the prior litigation are not substantially related. Her allegation that Feagin did not represent Carragher in the prior case is belied by Feagin’s notice of appearance, which specifically lists both Carragher and Harman, not as partners, but doing business as The Corner Cupboard. Here, Harman seeks to recover over $4,000 from Carragher as contribution toward litigation expenses incurred in the prior litigation, expenses that include those related to depositions taken by Feagin. The two actions are inherently related by virtue of the damages sought in this case.

Moreover, a lawyer in an abusive litigation claim must review the underlying case to determine if it is, in fact, abusive or frivolous. Of necessity and to represent his clients competently, Feagin was required to obtain sufficient knowledge of the underlying case and its parties to show the jury that the opposing parties had defended it without “substantial justification” or that they had “unnecessarily expanded” the action by improper conduct. Yost v. Torok, 256 Ga. 92, 95-96 (13) (344 SE2d 414) (1986). In fact, Feagin admitted that he met with the other attorneys representing The Corner Cupboard in the underlying case to familiarize himself with it, in preparation for litigation of the potential Yost claim. At least in part, then, the subject matter of both cases “overlapped.” “The circumstance of representing a client against a former client in an action that is of the same general subject matter, and grows out of an event that occurred dur ing the time of such representation, creates an impermissible appearance of impropriety.” (Emphasis supplied and in original.) Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 721 (3), 722 (373 SE2d 749) (1988). Here, the subject matter involved in the latter case arose out of the subject matter of the prior case, and the two cases clearly were substantially related. Disqualification of Feagin was mandatory. See Johns v. Carr, 196 Ga. App. 718, 719 (2) (397 SE2d 8) (1990).

Feagin’s protests that the prior litigation “did not involve the divulgence of any confidential information” and averments to the same end are of no import. See Summerlin, supra, 176 Ga. App. at 338. Further, his opinion, as well as that of another attorney involved in the prior case, that he did not believe a meaningful or substantive attorney-client relationship existed between himself and Carragher and that the two actions were not substantially related is not persuasive. Such an opinion is merely a conclusory one on an ultimate issue and is not probative. See generally E. H. Crump Co. &c. v. Millar, 200 Ga. App. 598, 600 (3), 601 (409 SE2d 235) (1991).

Finally, Harman cites Knoxville Med. Investors, Ltd. v. Nat. Healthcorp L.P., 192 Ga. App. 460 (385 SE2d 110) (1989), and Nat. Media Svcs. v. Thorp, 207 Ga. App. 70 (427 SE2d 61) (1993) in support of her argument that disqualification was appropriately denied. Those cases are inapposite. In both, the same subject matter was not involved in two separate actions, the circumstances of representation did not grow out of an event that occurred during the time of prior representation, and the actions involved were not substantially related. Atwood v. Sipple, 182 Ga. App. 831 (357 SE2d 273) (1987), also relied upon by Harman, is similarly distinguished from this case on its facts. There, we affirmed the denial of the motion to disqualify, finding that an attorney was not barred from representing two joint venturers against another when all three were involved in meeting with the law firm at the time the joint venture was formed. The prior representation in Atwood did not involve counsel’s pursuit of claims arising out of prior litigation in which he was involved. The issue of recovery of litigation expenses is a fruit of the prior case, borne of the pursuit of claims there, and Feagin’s representation of Harman against Carragher was clearly impermissible.

2. Just as we are not persuaded by arguments that the prior litigation was not substantially related to this litigation or did not arise out of the same general subject matter, we reject Harman’s claim that Carragher waived her right to raise the disqualification issue. She argues that Carragher waited over 13 months to bring the motion to disqualify and meanwhile “served numerous discovery requests, filed two third-party complaints, and otherwise engaged in substantial litigation thereby waiving the disqualification claim first made formally by motion in February of 1991.”

The 13-month “delay” referred to by Harman is misleading. She initially filed suit in February 1990, but dismissed it April 18,1990. In the interim between the first filing and the dismissal, Carragher’s counsel wrote a letter to Feagin stating his view that Feagin was disqualified from representation of Harman against Carragher on the ground that he had represented both in prior litigation. He gave Feagin the opportunity to withdraw prior to his filing a formal motion to withdraw. He also offered to “cooperate to minimize any inconvenience caused the Plaintiff” as a result of the voluntary withdrawal of counsel and to discuss with new counsel “any reasonable extension or other arrangement regarding . . . the case in general,” including discovery requests sent to plaintiff’s counsel. Shortly after the letter was written, the lawsuit against Carragher was voluntarily dismissed. The case was refiled September 12, 1990. It would defy logic to find some obligation by Carragher to file a formal motion when the case had been dismissed and before any other case was filed.

Seven days after the suit was reinstituted, and prior to filing defensive pleadings, Carragher’s counsel again sent preliminary discovery requests as well as a letter reiterating his position that Feagin was disqualified from representing Harman, but giving Feagin the opportunity to respond before a formal motion was filed. Feagin responded that the two cases were not substantially related and that he believed a motion to disqualify would be frivolous and “would be defended accordingly.” Similar correspondence continued through January 10, 1991, with Carragher’s counsel citing authority to Feagin in support of his position, and expressing concern that if the issue were resolved by motion, discovery complications would arise. He desired “to avoid . . . unnecessary duplication” in the event Feagin conducted depositions and was later disqualified and suggested that discovery be deferred. The final documented attempt by Carragher’s counsel to persuade Feagin to withdraw was via letter dated January 10, 1991, where he again stated his position that Feagin should be disqualified. Despite attempts to resolve the matter without resort to court intervention, including the attempt by Carragher’s counsel to avoid duplication and complication of discovery, Feagin remained inflexible. After the numerous attempts to reach an amicable solution failed, Carragher filed a formal motion to disqualify Feagin on February 15, 1991.

Given this evidence, Harman’s contention that Carragher waived the disqualification issue is completely without merit. Carragher’s counsel immediately placed Feagin on notice of his position and his intent to seek formal disqualification should an agreement not be reached. Harman contends that “substantial discovery” was undertaken. The record clearly shows, though, that Carragher’s counsel offered to extend discovery until the disqualification issue was resolved; yet Feagin was unwilling to agree to this proposal and threatened charges of frivolous litigation if a motion to disqualify were filed. The issue was not raised just on the eve of trial to Harman’s detriment; it was raised within a practical time frame after the initial pleadings were filed and after initial, unsuccessful, attempts were made to resolve the issue amicably.

Decided February 23, 1996

Reconsideration denied March 15, 1996

Raiford, Dixon & Thackston, Tyler C. Dixon, Sheldon K. Fram, for appellant.

Decker & Hallman, Robert D. Feagin, Powell, Goldstein, Frazer & Murphy, John T. Marshall, for appellees.

Because Feagin’s representation of Harman against Carragher was impermissible and Carragher did not waive the issue of disqualification, the judgment below must be reversed. All other issues involved in the appeal and cross-appeal are moot in light of this holding.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

       Harman also alleged that Carragher was indebted to her in the amount of $8,108.51, representing excess profits allegedly withdrawn by Carragher as well as furnishings allegedly taken but not paid for by Carragher; she further alleged that Carragher received monies from a customer and failed to account to Harman regarding the disposition of the money and the profits.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1837.
    WILDER v. THE STATE.
    (469 SE2d 549)
   McMurray, Presiding Judge.

Defendant was indicted, along with co-defendant Mary Joyce Horton, for possession of cocaine with intent to distribute. Co-defendant Horton entered a guilty plea and testified at defendant’s jury trial. The jury found defendant guilty of the lesser included offense of “simple possession” of cocaine, and the trial court entered judgment of conviction and sentence. Defendant’s trial attorney then filed a notice of appeal, and, less then two weeks later, another attorney entered an appearance of counsel. This attorney has since filed an enumeration of errors and brief in the Court of Appeals, challenging the sufficiency of the evidence and claiming ineffective assistance of trial counsel. Held:

1. After law enforcement officers found cocaine hidden under the dashboard of a car defendant was operating, co-defendant (defendant’s passenger) advised the officers that the contraband belonged to defendant. This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing the lesser included offense of possession of cocaine. Jackson v. Vir ginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Banks v. State, 200 Ga. App. 378 (1) (408 SE2d 484).

Decided March 15, 1996.

Anderson, Walker & Reichert, Samuel G. Alderman III, Bush, Crowley, Leverett & Leggett, Michelle L. Schieber, for appellant.

Charles H. Weston, District Attorney, for appellee.

2. Under the holding of Glover v. State, 266 Ga. 183 (2) (465 SE2d 659), and under the particular circumstances of the case sub judice, which was docketed in this Court on May 16, 1995, the case sub judice must be remanded to the trial court for further proceedings since defendant’s first opportunity to raise the issue of ineffective assistance of his trial attorney came after his trial attorney filed a notice of appeal on defendant’s behalf. If the trial court finds defendant was denied effective assistance of counsel, he will be entitled to a new trial.

Judgment affirmed and case remanded.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A1839.
    MERASTAR INSURANCE COMPANY v. WHEAT et al.
    (469 SE2d 882)
   Blackburn, Judge.

Charlotte K. Wheat filed an action against David Morgan Manior for damages she allegedly sustained when Manior’s vehicle struck the rear of her automobile on April 7, 1993. After Wheat served Merastar Insurance Company (Merastar) as her uninsured motorist (UM) carrier, Merastar claimed (upon opposing motions for summary judgment) that the policy it renewed that covered Wheat at the time of the collision does not provide UM benefits because Wheat rejected such coverage, in writing, when she originally applied for the subject insurance policy in 1988.

It is undisputed that Wheat lawfully rejected UM coverage at the time of her initial application for the subject policy; that the original policy was issued by NWNL General Insurance Company (NGIC); that Merastar subsequently assumed liability as the insurance carrier of the subject policy; and that Merastar renewed the subject policy without obtaining a new rejection of UM coverage from Wheat. Wheat contended that she was entitled to obtain UM coverage at the present time, as the renewal of the policy was not by “the same insurer” and therefore a new written rejection of such coverage by the insured was required at the time Merastar renewed the policy.

The trial court granted Wheat’s motion for summary judgment and denied Merastar’s motion for summary judgment. This appeal followed.

Northwest National Life Insurance Company (NWNL) owned a subsidiary, NGIC. In 1988, NGIC issued an automobile insurance policy to Charlotte K. Wheat, at which time she signed a written rejection of UM coverage. NWNL also owned another subsidiary, Provident General Insurance Company (PGIC). In December 1989, all of NGIC’s obligations, liabilities and rights were transferred to the sister company PGIC. PGIC mailed certificates of assumption and reassurance to all of NGIC’s policyholders including Wheat. In August 1990, PGIC formally changed its name to Merastar.

The original policy remained in effect following the transfer and was then renewed by Merastar without obtaining a new written rejection of UM coverage as authorized by OCGA § 33-7-11 (a) (3). Upon the transfer of the policy to Merastar, there had been no change in the terms of the policy and no reissuance of the policy, but rather, a continuation of the existing policy. Merastar fully assumed all of NGIC’s duties and liabilities under the policy.

Under the above circumstances, the legislature intended that the assuming insurer stand in the place of the original insurer for the purposes of OCGA § 33-7-11 (a) (3), and the trial court erred in holding otherwise.

1. OCGA § 33-7-11 (a) (1) outlines the general rule that “[n]o automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state” unless it makes provision for UM coverage. OCGA § 33-7-11 (a) (3) provides such coverage “shall not be applicable where any insured named in the policy shall reject the minimum coverage in writing.” OCGA § 33-7-11 (a) (3) further provides that the required “coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” (Emphasis supplied.)

According to the general rule of OCGA § 33-7-11 (a) (1), no automobile liability policy “shall be issued or delivered” unless it contains UM coverage. The term “issued or delivered” relates to the creation of the contract of insurance and requires an insurer to provide UM coverage at the time a policy of insurance is created. OCGA § 33-7-11 (a) (3) provides an exception to relieve an insurance company from the administrative burden of offering UM coverage at each renewal of a previously issued policy when the insured has already made a written rejection of UM coverage. Once an insured has exercised the option to reject the coverage, the insurer is under no further duty or obligation to offer the coverage, absent a request, for the life of the policy.

When the two Code sections are read together, the statutory scheme is evident, and it contains two primary precepts. First, an insurer must provide UM coverage to the insured upon creation of the insurance contract. Second, once an insured rejects UM coverage in writing, the insurer is under no continuing duty to offer UM coverage each time the same policy is renewed. Where, as here, there is an assumption of the policy, it is the same policy that is being renewed and no new UM application is required, just as no new original application is required. See Smith v. Commercial Union Assurance Co., 246 Ga. 50, 52 (268 SE2d 632) (1980).

Accordingly, the insurance company who has fully stepped into the shoes of the predecessor insurer and who then renews the policy issued by the original insurer is “the same insurer” for purposes of OCGA § 33-7-11 (a) (3) and may rely on the written rejection of UM coverage obtained at the time of the original application.

To hold otherwise would simply create a potential windfall for insureds who have previously executed a written rejection of the optional UM coverage at the origination of the policy, upon renewal of the policy where there has been an assumption of the policy by another insurer. It would also force the assuming insurer to incur great expense in obtaining new UM coverage rejection forms in the event of a major transfer of policies. No benefit or protection would inure to the insureds under such a requirement as they would have already made their UM coverage choice after having been informed of their options. A negative impact would be felt by the insureds by such a requirement as the additional cost would be passed through to them in the form of increased premiums.

2. Wheat’s motion to dismiss Merastar’s direct appeal is denied. The trial court’s order granting summary judgment in favor of Wheat was directly appealable pursuant to OCGA § 9-11-56 (h).

Judgment reversed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I believe the trial court was correct in ruling that the clear and unambiguous language of OCGA § 33-7-11 (a) (3) excuses the absence of a written rejection of uninsured motorist coverage only “where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” (Emphasis supplied.) Accordingly, since there is no question that Merastar is not “the same insurer” that issued the original NGIC policy to Wheat in 1988 and since the record clearly shows that Wheat was covered by a Merastar policy (not a “renewal” of Wheat’s NGIC policy as conveyed by the majority) at the time of the collision, I would affirm the trial court’s granting Wheat’s motion for summary judgment and denying Merastar’s motion for summary judgment.

Wheat admitted that she rejected uninsured motorist coverage when she applied for insurance in May 1988, but proved that the coverage she then rejected was offered by NWNL General Insurance Company (NGIC), not Merastar. The new policy Merastar issued Wheat is entitled, “AUTOMOBILE INSURANCE POLICY,” and is followed by a logo for Merastar Insurance Company. There is nothing in this policy that states that it is a “renewal” of Wheat’s original NGIC policy. Wheat simply received new insurance coverage from Merastar, an insurance company that is not “the same insurer” which gave her the opportunity to accept or reject uninsured motorist coverage in 1988.

“ ‘In statutory construction, “ ‘(i)t is fundamental that the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.’ (Cit.) In fact, ‘where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. (Cit.)’ (Cit.)” Williamson v. Lucas, 171 Ga. App. 695, 697 (320 SE2d 800) (1984).’ Standard Guaranty Ins. Co. v. Grange Mut. Cas. Co., 182 Ga. App. 842, 843 (357 SE2d 295) (1987).” Indus. Indem. Co. v. Walck, 192 Ga. App. 754, 756 (386 SE2d 521). Moreover, “ ‘where possible, “effect is to be given to all the words of a statute.” (Cit.)’ Saleem v. Bd. of Trustees &c. of Atlanta, 180 Ga. App. 790, 791 (2) (351 SE2d 93) (1986).” J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1), 125 (430 SE2d 13). And to this extent, it is firmly established that courts should not interpret a statute so as to render parts of it surplusage or meaningless. State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260).

The language of the statute at issue in the case sub judice is plain and unequivocal. Uninsured motorist “coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” (Emphasis supplied.) OCGA § 33-7-11 (a) (3). The emphasized language does not include renewal coverage issued by insurers who purchase and assume automobile liability policies from other insurers. However, by disregarding well-established rules of statutory construction and reading more into OCGA § 33-7-11 than is provided, I believe the majority usurps the legislative function and alters legislative policy in this state by holding that an “insurance company who has fully stepped into the shoes of [a] predecessor insurer and who then renews [insurance coverage] is ‘the same insurer’ for purposes of OCGA § 33-7-11 (a) (3). . . .”

Decided March 15, 1996

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, James B. McClung, for appellant.

Coppedge, Goddard & Leman, Warren N. Coppedge, Jr., J. Allen Hammontree, Finn & Hurtt, Michael D. Hurtt, for appellees.

Self, Mullins, Robinson & Marchetti, Miller P. Robinson, Deron R. Hicks, amici curiae.

Since there is no question that Merastar is not “the same insurer” that issued the insurance policy under which Wheat was given the opportunity to reject, in writing, uninsured motorist coverage in 1988, I believe the Merastar policy (covering Wheat at the time the subject collided) included uninsured motorist benefits by operation of law. See OCGA § 33-7-11 (a) (1). Consequently, I would affirm the trial court’s granting Wheat’s motion for summary judgment and denying Merastar’s motion for summary judgment.


author: Birdsong, Presiding Judge. Blackburn, Judge, Johnson, Judge,

text:
    A95A1842.
    HINTON v. INTERSTATE GUARANTY INSURANCE COMPANY.
    (470 SE2d 292)
   Birdsong, Presiding Judge.

Appellant Lynn Hinton, plaintiff in this personal injury case, seeks coverage by her uninsured motorist carrier, Interstate Guaranty Insurance Company, for damages arising out of her collision with a farm tractor being used to haul a mobile home.

Defendants Kendrick et al. were using Billy Kendrick’s farm tractor to haul a mobile home after sunset on a county road. They had no permit to haul a mobile home and were not using a specialized vehicle as required by Department of Transportation regulations. The trailer was 14 feet wide. The tractor driver was cited for having a load too wide, no amber lights on escort, no wide load sign on escort, towing after dark, and an improper towing vehicle. Kendrick’s tractor was not covered by liability insurance.

The trial court granted partial summary judgment to the defendant Interstate Guaranty Insurance Company, finding that “a farm tractor is not a motor vehicle for purposes of the uninsured motorist statute.” Appellant Hinton contends the trial court erred in “holding that a farm tractor engaged in a non-agricultural activity is not a motor vehicle for purposes of the Georgia Uninsured Motorist Statute.” Held:

1. The insurer contended, and the trial court found, that this farm tractor was not a motor vehicle for purposes of the uninsured motorist law because the insurance code provision requiring liability insurance (OCGA § 33-34-2) designates a “motor vehicle” as being a vehicle having more than three load-bearing wheels “of a kind required to be registered” by Georgia “laws . . . relating to motor vehicles designed primarily for operation upon the public streets, roads, and highways and driven by power other than muscular power.” OCGA § 33-34-2 (1).

The Georgia Uninsured Motorist Statute was not intended to provide all-risk coverage to the citizens of this state. OCGA § 33-7-11 (a) (1) pertinently provides that an automobile or motor vehicle liability policy, as identified therein, shall not be issued or delivered in this state, “unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” This statute on its face reveals the intent of the legislature that the covered risk be limited to those damages arising from incidents involving the owner or operator of an uninsured motor vehicle.

OCGA § 33-7-11 (b) (1) provides a statutory definition of those motor vehicles which are deemed to be “uninsured.” However, no definition is provided within the statute of the term “motor vehicle” itself and accordingly, we must examine statutes in pari materia to determine which statutory definition of a “motor vehicle,” if any, applies to the uninsured motorist statute. Compare State Farm &c. Co. v. Guest, 203 Ga. App. 711, 712 (417 SE2d 419) (physical precedent only) where, in construing the provisions of OCGA § 33-7-11 (b) (2), the then-existing in pari materia statutes, OCGA §§ 33-34-2 (6) and 40-1-1 (33) were examined and their provisions applied. In doing so, the Guest court held it could not be concluded that a tire assembly was a motor vehicle within the meaning of the uninsured motorist statute. Id.

The “laws . . . relating to motor vehicles designed primarily for operation upon the public streets, roads and highways” are given in Title 40 of the Official Code of Georgia. OCGA § 40-1-1 (33) defines “motor vehicle” as “every vehicle which is self-propelled.” However, the crucial inquiry defining “motor vehicle” in the insurance code (OCGA § 33-34-2 (1)) is whether a particular self-propelled vehicle is required to be registered under the “laws of this state relating to motor vehicles designed primarily for operation upon the public streets, roads, and highways and driven by power other than muscular power.” OCGA § 33-34-2 (1). OCGA § 40-2-20 (a), promulgated in the chapter pertaining to registration and licensing of motor vehicles, requires registration of “tractors,” except as provided in § 40-2-20 (b), which excepts from registration any tractor “used only for agricultural purposes.” OCGA § 40-2-20 (b) (2).

The trial court correctly ruled that this farm tractor is not a motor vehicle for the purposes of uninsured motorist coverage. Although the provisions for uninsured motorist coverage are remedial in purpose and therefore must be broadly construed to accomplish the legislative purpose (Smith v. Commercial Union Assurance Co., 246 Ga. 50, 51 (268 SE2d 632); Maryland Cas. Co. v. Rhoden, 170 Ga. App. 704, 705 (318 SE2d 175)), the construction of a statute must square with common sense and reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). To subject a farm tractor, which is not primarily designed to operate in an everyday driving environment upon the public roadways but is designed primarily for agricultural purposes, to a statutory categorization of “uninsured motor vehicle,” does not follow a prudent rule of reason. It was not without major public policy considerations that the legislature elected to exempt farm tractors from motor vehicle registration requirements. It is sometimes but a very fine line separating legitimate statutory construction and unauthorized judicial legislation (Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 302 (5) (436 SE2d 14)); it would cross this line to hold that a farm tractor is an uninsured motorist vehicle. Additionally, it is most reasonable to conclude that the legislature desired to provide uninsured motorist coverage for persons injured by motor vehicles designed primarily for operation upon the public streets, roads, and highways (OCGA § 33-34-2 (1)), as it is those uninsured motor vehicles which daily pose the greatest risk and danger to the public. Conversely, a farm tractor poses a far lesser degree of danger to those on public streets, roads and highways, and public policy provides no overriding reason to require such vehicles to be treated in the same manner as vehicles designed primarily for operation upon the public streets, roads, and highways.

State Farm &c. Co. v. Guest, supra, is factually distinguishable and not controlling as to the disposition of this case. That case did not involve a “self-propelled” vehicle but involved a tire assembly which fell off a truck.

2. We note that any vehicle used to tow a mobile home is required by law to maintain liability insurance. See Department of Transportation Rule 672-2-.03 (g), enacted pursuant to OCGA § 32-6-28, which authorizes issuance of permits for vehicles and loads exceeding certain legal weights and dimensions. The trial court’s grant of partial summary judgment did not foreclose this issue but in essence determined only that this tractor was not a motor vehicle required to be registered under the Motor Vehicles Act (OCGA § 40-2-20) and hence was not required to have liability insurance under OCGA § 33-34-2 (1).

If the definition of farm tractor is to be changed in order for it to become an “uninsured motor vehicle,” then the change is for the legislature, not this Court. To make a farm tractor, used primarily for agricultural purposes, an uninsured motor vehicle because of one departure from its primary use is, in my opinion, not the intent of the legislature.

Judgment affirmed.

Pope, P. J., Andrews, Blackburn and Ruffin, JJ., concur and concur specially. Beasley, C. J., concurs in judgment only. McMurray, P. J., Johnson and Smith, JJ., dissent.

Blackburn, Judge,

concurring specially.

I concur with the majority opinion but write separately to add the following. In granting Interstate’s partial motion for summary judgment, the trial court concluded that a farm tractor is not a motor vehicle for purposes of the uninsured motorist statute. That is the only issue before the Court.

The majority opinion affirms the trial court’s conclusion that this case turns on the definition of “motor vehicle” under OCGA § 33-34-2 (1). The Uninsured Motorist Act (UMA), OCGA § 33-7-11, contains no definition of “motor vehicle.” OCGA § 33-7-11 (b) (1) (D), simply provides when a motor vehicle is uninsured, not what an uninsured motor vehicle is. The five subdivisions thereunder all relate to the applicability of uninsured motorist coverage to the existence, the amount, or collectibility of liability coverage. Uninsured motorist coverage does not come into play unless its limits exceed available liability coverage.

Uninsured motorist coverage is a required part of motor vehicle liability policies under Georgia law, where the insured does not reject such coverage. OCGA § 33-7-11 (a) (1) provides in part: “No automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains . . . provisions undertaking to pay . . . damages from ... an uninsured motor vehicle, within limits ... at the option of the insured.” (Emphasis supplied.)

“[T]he purpose in providing for uninsured motorist protection was to afford the public generally with the same protection that it would have had if the uninsured motorist had carried the same amount of coverage under a public liability policy issued in his name.” (Emphasis supplied.) Wages v. State Farm &c. Ins. Co., 132 Ga. App. 79, 83 (208 SE2d 1) (1974).

As uninsured motorist provisions are a part of the actual liability policy which is governed by OCGA § 33-34-3, it would appear that the legislature intended that the definitions related to motor vehicle liability policies contained in OCGA § 33-34-2 would apply to the uninsured motorist provisions thereof absent a specific indication to the contrary under OCGA § 33-7-11 (UMA). Otherwise, the term “Motor Vehicle” would have two different meanings in the same policy.

Both Boston v. Allstate Ins. Co., 218 Ga. App. 726 (463 SE2d 155) (1995) and Grange Mut. Cas. Co. v. Brinkley, 182 Ga. App. 273 (355 SE2d 767) (1987) were decided on the issue of coverage based upon a “resident relative” provision of the policies and did not deal with the issue of motorcycles or the definition of “motor vehicle.” I can find no Georgia appellate case which holds that a motorcycle is a “motor vehicle” for purposes of uninsured motorist coverage as said issue has not previously been raised. While it might be fair to question why such issue has not previously been raised before this Court, any conclusion would be pure speculation and cannot form a basis for determination in this case.

Title 40, Motor Vehicles and Traffic, contains the traffic laws of the State of Georgia, including the rules of the road, and the broad definition of “motor vehicle” contained at OCGA § 40-1-1 (33) is clearly needed to reduce the possibility of traffic violators avoiding conviction based upon a narrow definition of “motor vehicle” which might exclude prosecution. OCGA § 40-2-20 provides for the registration of motor vehicles and is not at issue in the present case. It would appear that the intention of the legislature in including the term “tractor” in those vehicles which require registration under OCGA § 40-2-20 was to provide primarily for those tractors which are used in tandem with trailers for the purpose of hauling freight, i.e. tractor-trailers. It would likewise appear that the primary purpose for the exclusion from registration of tractors used only for agricultural purposes under OCGA § 40-2-20 (b) was to distinguish farm tractors from those tractors used in hauling freight. In any event, the registration of motor vehicles is not involved in the present case and would not control the resolution thereof.

While the public may be well served by a change in the law which would result in uninsured motorist coverage under the facts herein involved, where the intent of the legislature is clear, as I feel it is here, any change in the law may be made only by the legislature. “Regardless of the desirability of arriving at a particular state of the law, this court has no authority to legislate.” Bieling v. Battle, 209 Ga. App. 874 (434 SE2d 719) (1993).

I am authorized to state that Presiding Judge Pope, Judge Andrews and Judge Ruffin join in this special concurrence.

Johnson, Judge,

dissenting.

I respectfully dissent because I believe the trial court erred by focusing on a single statutory definition of a motor vehicle in this case and did not consider the use to which the motor vehicle was being put at the time of the collision. “The purpose of uninsured motorist legislation is to require some provision for first-party coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.” (Citations and punctuation omitted.) Smith v. Doe, 189 Ga. App. 264, 265 (3), 266 (375 SE2d 477) (1988). I believe the majority’s view improperly shifts the focus away from the goal of compensating an injured party to compensating only those victims injured by a single class of vehicles which meet one definition of motor vehicle in the Code.

The definition of motor vehicle in OCGA § 33-34-2 (1), the Code section relied on by the majority, serves only to delineate those vehicles as to which the legislature has mandated liability insurance coverage. Applying that definition of motor vehicle in other contexts produces illogical results. For example, as pointed out by the appellants, motorcycles would not satisfy the definition of motor vehicle in OCGA § 33-34-2, yet no Georgia court has held that a person involved in an accident with an uninsured motorcycle cannot seek protection through the uninsured motorist coverage of his or her own automobile insurance policy. See generally Boston v. Allstate Ins. Co., 218 Ga. App. 726 (463 SE2d 155) (1995); Grange Mut. Cas. Co. v. Brinkley, 182 Ga. App. 273 (355 SE2d 767) (1987).

The tractor in this case does not satisfy the definition of a motor vehicle in OCGA § 33-34-2 (1), as the tractor was clearly not designed primarily for operation upon public roads. It does, however, satisfy the definition of a motor vehicle in numerous other provisions of the Code. OCGA § 40-1-1 (33) defines motor vehicle simply as “every vehicle which is self-propelled.” OCGA § 40-2-20 (a), which defines motor vehicles in terms of those required to be registered, expressly includes tractors unless being used solely for agricultural purposes. OCGA § 40-2-20 (b) (2). It is clear that the tractor in the instant case was being used, illegally, to tow a mobile home. This activity can in no way be said to be an agricultural purpose. I believe that the legislature clearly intended farm tractors used for purposes other than agriculture to be included in the registration requirements. Finally, a tractor meets the broad criteria for an uninsured motor vehicle under OCGA § 33-7-11 (b) (1) (D).

“The term ‘uninsured motor vehicle’ was not meant to be given one definition for purposes of [one Code section] and a different definition when appearing in other parts of the Code section; such a split interpretation would be absurd.” Hall v. Regal Ins. Co., 202 Ga. App. 511, 513 (1) (414 SE2d 669) (1992). A farm tractor, with an engine capable of towing a 14- by 52-foot mobile home, was operating on a public highway. The tractor’s presence on the highway was not merely incidental to some legitimate agricultural purpose. That the mobile home was being towed by a tractor rather than another motor vehicle which would have fit more squarely within OCGA § 33-34-2 (1) did not diminish the injuries sustained by the plaintiff in this case. We are presented with a policyholder who paid premiums for uninsured motorist coverage. She was injured in an accident on a public highway with a motorized vehicle, which, while it may not have been designed primarily for operation on public roads, was performing the same function as a motor vehicle which is so designed. I believe the trial court erred in granting summary judgment to the insurance company.

Decided March 15, 1996

Howard E. Spiva, Cecil C. Davis, for appellant.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, for appellee.

I am authorized to state that Presiding Judge McMurray and Judge Smith join in this dissent.


author: Beasley, Chief Judge. Ruffin, Judge,

text:
    A95A1851.
    THE STATE v. CRISANTI.
    (470 SE2d 314)
   Beasley, Chief Judge.

Edward Crisanti was indicted for possession of methamphetamine with intent to distribute in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30 (b). The State appeals from the trial court’s order granting Crisanti’s motion to suppress.

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.]

“Second, the trial court’s decision with regard to ‘questions of fact and credibility . . . must be accepted unless clearly erroneous.’ [Cit.] . . . Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.]” (Emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

Viewed in light of the foregoing principles, the evidence at the suppression hearing showed that on the day of the events leading to his arrest, Crisanti and two companions, Dubnoff and Rivera, purchased airline tickets for a flight from Brunswick, Georgia, to San Francisco, with a layover in Atlanta. As the three men passed through security at the Brunswick airport, airline employees noticed one of the men carrying an electronic device in a briefcase. The man carrying the briefcase explained that it was used for carrying jewelry and contained an alarm that could be operated by a remote control. In a separate carry-on bag belonging to one of the other men, an airline employee found a fossil, a large sum of currency and a jar of white powder, which its owner said was powdered caffeine. Crisanti’s bags were also searched in the regular pre-boarding process.

The minimally trained employees assumed the electronic device in the briefcase was legal and permitted the men to board the plane with the briefcase and the bag containing the jar and currency. Upon reflection, the employees became suspicious about the briefcase and items in the other bag and contacted flight control at the Atlanta airport. They informed flight control about the electronic device in the briefcase, relating that it had a remote control and cautioning that “it could be a danger.”

In Atlanta, flight control advised the Atlanta Police Department of the situation. Approximately eight Atlanta police officers, accompanied by several bomb dogs, were joined at the airport by six agents from the Drug Enforcement Administration Airport Task Force (“DEA”). Approximately ten to fifteen minutes elapsed between the time the officers and agents assembled on the airport tarmac and the arrival of the flight. During this time, they were briefed concerning the situation.

When the men exited the plane onto the tarmac, Crisanti and Dubnoff had small carry-on bags with them, and Rivera was carrying the briefcase. DEA Agent Stevens, accompanied by Agent Roey, approached Crisanti, identified himself as a police officer and directed Crisanti to put down the bag he was carrying. Agent Stevens told Crisanti they had received information concerning an electronic device with a remote control in a briefcase and asked Crisanti to keep his hands out of his pockets. Crisanti told Agent Stevens they indeed had such a briefcase that could emit an electric shock and could be activated by remote control. He explained to Agent Stevens that he and his companions were in the jewelry business and on a trip to purchase jewelry in San Francisco. The briefcase, he said, was a security device used to carry valuable jewels but was not activated. They were also carrying large amounts of cash because they could get better deals for jewelry if they paid with cash, he further explained. After Crisanti told the agents he did not know the location of the remote control, Agent Roey patted him down in an attempt to locate it. Agent Roey did not find the remote control, but she found $5,000 in Crisanti’s pants pocket and another $5,000 in his coat pocket. Although Crisanti offered several times to open the briefcase for the agents, they did not allow him to do so because they were concerned that the briefcase could be activated by remote control and that it might contain explosives.

As Agents Stevens and Roey were questioning Crisanti, Agent Webster approached Rivera, who was carrying the briefcase, advised him he was a police officer, and told him to put the briefcase down because he “wanted to get that briefcase out of his hands and try and locate a remote control device. . . .” Webster advised Rivera that he was being detained for further investigation to determine whether the “briefcase was an explosive device or would, in fact, deliver a substantial shock.” Webster conducted a pat-down of Rivera in search of the remote control, felt a rectangular object in Rivera’s breast pocket which turned out to be a stack of currency, and handcuffed Rivera until he could get him secured at the Atlanta Police Department’s airport precinct. Another officer searched Dubnoff and found in his pocket what appeared to be a crack pipe with residue. Dubnoff was placed under arrest for possession of cocaine and placed in handcuffs. Along with Rivera and Dubnoff, the officers took Crisanti to the airport police department to further search for the remote control.

When they arrived at the police department, Agent Stevens put Crisanti into an office with two other officers and retrieved Crisanti’s carry-on bag. Agent Stevens testified that he then asked Crisanti for consent to search his bag and that Crisanti gave his consent. Inside the bag, Agent Stevens found a pair of digital electronic scales with a white powdery substance on them, a woman’s makeup compact with white powder in it, and a prescription bottle two-thirds full of white powder. One of the officers eventually opened the briefcase where he found the remote control.

Prior to trial, Crisanti moved the court to suppress evidence of the currency found during the pat-down and the items found in his carry-on bag. The trial court denied Crisanti’s motion as to the currency because it was found during a legal investigatory stop while the officers were attempting to locate the remote control. However, the trial court found that the search of Crisanti’s bag was conducted after he was arrested without probable cause and suppressed evidence of the bag’s contents at trial.

We reverse for two reasons. First, the trial court failed to consider the reasonableness of the police officers’ actions from their perspective at the time of the incident. Williams v. State, 193 Ga. App. 630, 631 (1) (388 SE2d 884) (1989). Second, the trial court failed to recognize uncontradicted testimony that Crisanti gave Agent Stevens his consent to search the carry-on bag and the briefcase before he or his traveling companions were removed from the tarmac.

In this age of international terrorism, this Court and the federal courts have held that an individual such as Crisanti who enters an airport security area may be searched even on a “ ‘mere suspicion of possible illegal activity.’ ” McSweeney v. State, 183 Ga. App. 1, 2 (1), 3 (358 SE2d 465) (1987); United States v. Lopez-Pages, 767 F2d 776, 778 (11th Cir. 1985). That permission to search did not end when Crisanti successfully cleared the x-ray devices and magnetometers in Brunswick. Crisanti was headed for another plane when he arrived in Atlanta. “The search may continue until the law enforcement official satisfies himself that no harm would come from the passenger’s boarding the plane. To be effective, the security efforts must focus not on a single . . . tangible item, but on the suspect himself, his demeanor and possessions during the entire course of his airport presence.” United States v. Cyzewski, 484 F2d 509, 513 (5th Cir. 1973); see also United States v. Legato, 480 F2d 408, 411-412 (5th Cir. 1973). Likewise, in McSweeney, supra at 3-4, this Court held that once consent is given to search it cannot be withdrawn after detection devices indicate danger to flight security.

Crisanti admitted to Agent Stevens the electronic device could emit a shock and could be activated by remote control. Were the officers required by the law to cease and desist from taking any further action and instead to allow Crisanti to proceed to the plane scheduled to cross the country? No. The officers were justified in searching the bags and double-checking the search done in Brunswick to find the remote which might activate this potential weapon.

This Court noted nearly a decade ago the importance of allowing airport security to search for any device “which can be used to intimidate and coerce an air crew. . . .” McSweeney, supra at 2 (1). To ensure passengers do not carry such devices on aircraft, “ [additional searches outside the perimeter of the security area are permissible if, in the exercise of their professional judgment, the authorities’ reasonable suspicions have not been allayed by the routine security check.” (Citations and punctuation omitted.) Lopez-Pages, supra at 778; McSweeney, supra at 4. Because Brunswick’s security agents believed they were not equipped or trained to do an adequate screening for potential weapons, it was reasonable for officers in Atlanta to conduct an additional search of Crisanti’s bag to secure a remote device which he admitted could activate an electrical shock mechanism in the briefcase.

1. The trial court found that this investigatory detention became unreasonable when the officers removed Crisanti from the concourse to the airport precinct. In United States v. Sharpe, 470 U. S. 675, 686 (105 SC 1568, 84 LE2d 605) (1985), the Supreme Court held that an investigatory detention is reasonable in time and scope when the evidence shows police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” In making that determination, it stated, courts should consider whether police are acting in a swiftly developing situation and, if so, “should not indulge in unrealistic second-guessing.” Id. Another key factor is whether police acted unreasonably by failing to recognize or pursue an available alternative. Id. at 687.

This case bears little resemblance to Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983), upon which Crisanti relied in his motion to suppress. That case involved an airport search for drugs based solely on the characteristics of the suspect. In this case, the police officers were searching for a device which Crisanti admitted was present and which he acknowledged could emit an electrical shock. In other words, this device was a potential weapon that posed a direct threat to airline passengers and crew, or to people in the airport if activated before the men left for San Francisco. The Supreme Court and this Court have held that once a person who is the subject of an investigatory stop admits a weapon is present, officers are privileged to search the area to uncover that weapon. Michigan v. Long, 463 U. S. 1032, 1048 (103 SC 3469, 77 LE2d 1201) (1983); Bentley v. State, 214 Ga. App. 580, 582 (3), 583 (448 SE2d 479) (1994). The reasonableness of a Terry seizure “depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (95 SC 2574, 45 LE2d 607) (1975) (citing Terry v. Ohio, 392 U. S. 1, 20-21 (88 SC 1868, 20 LE2d 889) (1968)).

In assessing the detention of Crisanti, his associates, and their luggage, the court must “ ‘consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to efFectuate those purposes.’ ” Mallarino v. State, 190 Ga. App. 398, 400 (2), 401 (379 SE2d 210) (1989). To reasonably carry out their investigation, these officers had to carefully and cautiously search until they found this remote device.

The officers’ methods used to conduct this search were reasonable under the circumstances. It is problematic to criticize the officers for not believing Crisanti’s explanations and for not opening the briefcase on the tarmac; Agent Stevens and Agent Webster both testified they were afraid of the device despite the suspects’ assurances. These officers were not required to believe Crisanti and his traveling companions, one of whom they had arrested for drug possession; neither were they required to endanger themselves and the public, either in Atlanta or aboard a plane by opening a briefcase whose design they associated with weaponry. Legato, supra at 412. Judges who are untrained in law enforcement, who are not present as the incident unfolds, and who have the benefits of hindsight and reflection should be hard-pressed to “second-guess” the decision of these officers not to open the briefcase in public without knowing the location of its remote control. Although bomb dogs were present, they would have been no help in dispelling the officers’ fears; Crisanti himself stated the briefcase could shock its holder, not explode in his or her hands. Unlike Royer, supra at 505, in which the evidence showed the police could have used less intrusive means such as drug dogs to detect contraband, the only alternative available to these officers was to open the briefcase and assume the risk of injury. “The fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.” Cady v. Dombrowski, 413 U. S. 433, 447 (93 SC 2523, 37 LE2d 706) (1973). Unlike the officers in Royer who made no effort to allay their suspicions before hauling the suspect into a small room, these officers made a reasonable but fruitless search on the tarmac.

Under these circumstances, we do not declare the search legally invalid because the officers removed Crisanti and their investigation to the airport precinct, out of the cold and away from the prying eyes of the public. In fact, their action could be characterized as “minimizing” the intrusiveness of the search and the embarrassment to the passenger. Lopez-Pages, supra at 779. Safety concerns justified removing the briefcase and Crisanti away from the public to protect the passersby on Concourse D from any harm which might be caused by this unusual device. See Royer, 460 U. S. at 504-505, in which the Supreme Court acknowledged safety reasons would justify moving a suspect from an airport concourse to a more private area.

Furthermore, these officers were “act[ing] diligently in a situation they did not necessarily expect to happen.” State v. Grant, 195 Ga. App. 859, 862 (3), 864 (394 SE2d 916) (1990). As soon as the agents frisked Dubnoff, Crisanti’s fellow traveler, they arrested him for drug possession and had to secure him somewhere. Because Crisanti was with him, and the agents needed to check all three men’s luggage for the remote device, it made sense to take them all to the airport precinct. Any delay in the officers’ search resulted not from neglect on their part, but rather from the actions of Crisanti and his associates, and these short delays were therefore necessary to the officers’ legitimate investigation. Sharpe, supra, 470 U. S. at 687 (distinguishing Royer). These officers were acting in a “swiftly-developing situation,” and we will not facilely condemn the choices they made. Williams, supra at 631 (1). Reasonableness is measured by the “foresight of the policeman on the scene who must act in the public interest in a very short space of time.” Id.; see Brooker v. State, 164 Ga. App. 775 (1), 776 (298 SE2d 48) (1982).

Construing the evidence in favor of the trial court’s findings, the investigatory detention in this case did not contravene the law. The officers were not pursuing some possible violation of drug laws, as in Royer. They were searching for an admittedly dangerous device, and their job was complicated by their unfamiliarity with the device, the unusual explanations of three men regarding its purpose and their mission, and the arrest of one of the men on drug charges. Because Crisanti was reasonably detained at the time he gave Agent Stevens his consent to search at the precinct, that search was valid. See Royer, supra at 502, holding that if Royer had given his consent to search while he was justifiably being detained on reasonable suspicion, the products of his search would have been admissible against him.

2. The trial court found proper the brief detention on the tarmac but did not address the consent to search Crisanti gave at that time. The evidence reflects, without contradiction, that Agent Stevens approached Crisanti as he came down the ramp and identified himself as a police officer. He explained to Crisanti his concern about the briefcase. Crisanti acknowledged the case had a remote control device and could deliver an electrical shock, but Crisanti said he did not know where the remote was. Agent Stevens asked if he could search the briefcase and his carry-on luggage, and Crisanti replied, “no problem,” relating that it had been searched when he boarded the plane in Brunswick. Agent Stevens did not display a weapon to Crisanti, although at some point Agent Webster pulled his weapon on Crisanti’s companion who was carrying the briefcase.

The trial court made findings of fact, but it made no mention of Agent Stevens’ testimony showing Crisanti gave his consent to search on the concourse. This testimony was not contradicted by the testimony of Agent Roey, who overheard much of the conversation between Agent Stevens and Crisanti; when asked whether she heard Agent Stevens ask Crisanti for his consent on the tarmac, Roey replied, “At this time I can’t remember exactly what he asked him out on the ramp. ... I honestly can’t say.” This neutral testimony provides no contradiction to Agent Stevens’ positive testimony that he asked for and received Crisanti’s permission to search during the initial investigatory stop at Concourse D. Wallace v. Lessard, 158 Ga. App. 772 (1), 773 (282 SE2d 153) (1981). The trial court was required to consider this testimony, as “a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence” to the contrary. Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527, 528 (336 SE2d 583) (1985); OCGA § 24-4-7. When controlling facts are undisputed, our review of a motion to suppress is de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994); Newsome v. State, 192 Ga. App. 846 (1) (386 SE2d 887) (1989).

From this evidence, it appears the search of Crisanti’s carry-on bag resulted from a voluntarily given consent and not from the later detention which the trial court characterized as illegal. Miranda v. State, 189 Ga. App. 218, 221 (375 SE2d 295) (1988). Verbal agreement is probative evidence of consent, Lopez-Pages, supra at 780, and the testimony showed Crisanti agreed to the search on the tarmac just as he had agreed to it in Brunswick. The authorities cited above also show that once Crisanti presented himself at airport security in Brunswick and allowed agents to search his carry-on bag, he could not withdraw that consent until authorities were satisfied he posed no security risk. McSweeney, supra at 3-4.

The transcript of the suppression hearing shows independently that, at the time he originally gave his consent, Crisanti “was not subjected to any duress or coercion, and that he freely, voluntarily and intelligently consented to the search of his [carry-on bag]. . . . [Cit.]” (Punctuation omitted.) Calixte v. State, 197 Ga. App. 723, 725-726 (2) (399 SE2d 490) (1990).

Judgment reversed.

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

Ruffin, Judge,

dissenting.

The majority correctly sets forth the principles under which we are required to review a trial court’s ruling on a motion to suppress. “On numerous occasions the appellate courts of this state have invoked these . . . principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to I trial court rulings that are in favor of the defendant and their application to this trial court’s order would demand that the court’s order be affirmed.” Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Therefore, I must respectfully dissent.

While I agree with the majority that the agents were entitled to stop Crisanti and his companions in order to determine the nature of the briefcase, I do not agree that the time and scope of their investigative detention was sufficiently limited. Because the record shows that there was at least some evidence to support the trial court’s judgment, it was not clearly erroneous.

In addition to the facts set forth in the majority’s opinion, I believe it is essential to point out that the record shows, without contradiction, that the agents admitted they had no evidence that Crisanti had broken any laws when they took him to the police department to further search for the remote control. Furthermore, although the record shows that Rivera was carrying the briefcase, at no time did anyone ask him if he also had the remote control. Likewise, although bomb dogs were present, the officers did not conduct a canine sniff of the briefcase or other luggage to confirm or dispel their suspicion that the briefcase contained explosives. Finally, Agent Webster, who was in charge of the investigation, acknowledged that from the time he first secured the briefcase on the airport tarmac, to the time it was opened at the police department, no efforts were made to confirm his suspicion that it might explode or deliver a shock.

In McSweeney v. State, 183 Ga. App. 1, 2 (1) (358 SE2d 465) (1987), we recognized that the dangers associated with air piracy justify the need for stringent security measures at airports. Such concerns justify, for example, airport security searches of all passengers and their luggage based on the need to protect an aircraft and its passengers. Id. at 3. However, the scope of an airport search is not unlimited and like other searches and seizures must be carefully tailored to its initial justification. See generally Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983). We have thus held that “in cases involving the detention of luggage, a two-fold inquiry is in order: (1) Did the police have reasonable cause to detain the luggage? [and] (2) Was the detention so minimally intrusive as to be justifiable upon reasonable cause? [Cit.]” State v. Foster, 209 Ga. App. 143, 146 (433 SE2d 109) (1993). To be minimally intrusive, such a detention, whether of a passenger or his luggage “must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. [Cits.]” (Emphasis supplied.) Royer, supra at 500.

I agree with the majority and the State that the officers’ initial seizure of Crisanti and his carry-on bag was based on a reasonable, articulable suspicion that his companion was carrying a briefcase that might contain explosives and that the briefcase could be detonated by a remote control Crisanti may have possessed. However, while it is likely that the officers’ suspicions could have been confirmed or dispelled on the tarmac, without further detaining Crisanti, they instead chose to take him to the police department for a further search. Although the officers justified their search based on their suspicions that the briefcase could deliver a shock or that it contained explosives, they did nothing from the time they first secured the briefcase on the airport tarmac, to the time it was opened at the police department, to dispel their suspicions even though bomb dogs were present and x-ray devices at airport security stops were presumably available. See id. at 505-506. Although the majority states that the bomb dogs would have been of no use, the record clearly shows that the agents were suspicious that the briefcase contained explosives. The bomb dogs could have helped dispel this suspicion. Likewise, even though the officers were suspicious that either Crisanti or one of his companions possessed the remote control, they failed to ask Rivera, who possessed the briefcase, whether he also possessed the remote control. In light of the officers’ failure to take even obvious and available measures to dispel their suspicions, I also find questionable their refusal to allow Crisanti to open the briefcase when he repeatedly offered to do so. If the agents were concerned that the briefcase could emit a shock, then allowing Crisanti to open it would have allowed them to confirm or dispel this suspicion without endangering their safety. In short, while the officers could have quelled their suspicions concerning the briefcase and the remote control without further delaying Crisanti, they chose instead to detain him for further investigation at the police department. “[T]he detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Id. at 502. “What had begun as a [permissible] inquiry in a public place had escalated into an investigatory procedure in a police [station], where the police, unsatisfied with previous explanations, sought to confirm their suspicions. The officers had . . . seized [Crisanti’s] luggage. [Crisanti] was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained. . . . As a practical matter, [Crisanti] was under arrest.” Id. at 503. It is thus clear that the suppressed evidence was not obtained during a lawful investigative search.

I also find that because the officers did not have probable cause to arrest Crisanti, his subsequent consent to search the bag was tainted. All the officers knew at the time of Crisanti’s arrest was that his companion possessed a briefcase containing an electronic device which had a remote control and that “it could be a danger.” The officers, unsatisfied with Crisanti’s explanation that the briefcase was a security device, sought to further detain him and his baggage. Because I agree with the trial court that these facts did not provide probable cause to arrest Crisanti, and further find that his consent to search the bag was tainted by the illegality and was ineffective to justify the search, the judgment of the trial court should be affirmed. See id. at 507-508.

Furthermore, although the majority finds the trial court ignored undisputed testimony that Crisanti consented to a search while on the tarmac, the record does not support this finding, and in any event, even if Crisanti did consent at that time, the agents failed to act upon it in an expeditious manner.

The evidence showed that Agent Roey was present and heard the conversation between Agent Stevens and Crisanti. From her testimony on direct examination, it is apparent that Agent Roey recalled the details of the conversation, including the fact that Crisanti consented to a search of his bag after they reached police headquarters. Yet, when asked on cross-examination whether Agent Stevens asked Crisanti for consent to search his bag while on the tarmac, Agent Roey testified that she could not “remember exactly what he asked him out on the [tarmac].” “Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. [Cit.]” (Emphasis supplied.) Tate, supra at 56 (3).

The trial court heard both Agent Roey’s and Agent Stevens’ testimony and had the opportunity to observe their demeanor. The trial court must have concluded that because Agent Roey heard and recalled, with detail, the conversation on the tarmac, yet did not remember anything regarding consent being mentioned, that no such consent was given at that time. Such a conclusion is consistent with the trial court’s final order granting the motion and is also “consistent with the way reviewing courts interpret judicial orders.” Id. at 57. Moreover, even if Agent Stevens’ testimony concerning consent was uncontradicted, the trial court was authorized to reject it. See id.

Furthermore, it was the State’s burden to show that any consent was freely and voluntarily given under the surrounding circumstances. Mallarino v. State, 190 Ga. App. 398, 400, 402 (2) (379 SE2d 210) (1989). The circumstances of this case provided at least some evidence from which the trial court could have concluded that any consent allegedly given on the tarmac was coerced. The evidence is undisputed that Crisanti was confronted by a force of approximately 14 law enforcement officers accompanied by bomb dogs. Although the agents interrogating Crisanti did not use their weapons, one of the agents had pointed a gun at his companion. There was no evidence that Crisanti was advised of his relevant constitutional rights including his right to refuse to consent. Although no single factor is controlling, this is some evidence that the psychological impact of the circumstances surrounding the detention, accompanied by the failure to advise him of his rights, could have led Crisanti to believe that he had no choice but to consent. See id.; Love v. State, 144 Ga. App. 728 (2) (b) (242 SE2d 278) (1978), overruled on other grounds, Parker v. State, 161 Ga. App. 37 (288 SE2d 852) (1982). See also LaFave, Search & Seizure (2d ed. 1987), Vol. 3, § 8.2 (b).

I do not find under these circumstances that the trial court’s order was clearly erroneous. Id.

Finally, the majority believes that the officers’ actions in removing Crisanti from the tarmac to police headquarters were justified for safety reasons and because such actions minimized the intrusiveness of the search. However, as the majority recognizes, the officers moved Crisanti to the police headquarters to get out of the cold and away from the prying eyes of the public. With all due respect, I do not see how getting out of the cold is related to safety. Neither do I believe that the agents’ search of Crisanti’s carry-on bag necessitated his removal to police headquarters. Crisanti had already been stopped by a large number of officers accompanied by bomb dogs, questioned and patted down, all in full view of the public. If indeed Crisanti consented to a search of his small carry-on bag while on the tarmac, the search could have been conducted on the spot without any more of a public intrusion on his personal liberty than had already taken place. Moreover, as the Supreme Court noted in Royer, if the on-the-spot “search proved negative, [Crisanti] would have been free to go much earlier and with less likelihood of missing his flight, which in itself can be a very serious matter in a variety of circumstances.” Royer, supra at 505. A positive result, on the other hand, “would have resulted in his justifiable arrest on probable cause.” Id. at 506.

Decided March 15, 1996.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Melnick, Moore & Elliott, Larry M. Melnick, for appellee.

I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Smith join in this dissent.


author: Ruffin, Judge.

text:
    A95A1852.
    ADAMSON v. ADAMSON.
    (470 SE2d 289)
   Ruffin, Judge.

Ida Adamson sued Earnest Lamar Adamson III, the executor of the estate of Mrs. Adamson’s deceased husband. The complaint, filed in the State Court of Clayton County, alleged that prior to Earnest Adamson’s appointment and qualification as executor, Mrs. Adamson advanced her own money to the estate to pay various bills that were due, including medical and funeral expenses, and taxes. In her complaint, Mrs. Adamson sought reimbursement from the estate for the advanced funds. The trial court dismissed the complaint, and Mrs. Adamson appealed. For reasons which follow, we reverse.

The record shows that on March 16, 1993, Earnest Adamson was appointed executor of the estate by the Henry County Probate Court. On March 29, 1994, Mrs. Adamson filed a notice of her claim in the Henry County Probate Court, seeking reimbursement for the same items that are the subject of the instant case. Mrs. Adamson filed the instant action on May 4, 1994. The executor answered the complaint, denying that the estate was liable for the expenses claimed in the complaint. The executor also filed a counterclaim alleging that Mrs. Adamson wrongfully took possession of two certificates of deposit that belonged jointly to her and the estate.

Mrs. Adamson moved to dismiss the counterclaim on the ground that it was a compulsory counterclaim which should have been filed in a separate case between the parties already pending in the Superior Court of Clayton County. She subsequently moved for summary judgment, asserting that the undisputed facts showed the estate was unjustly enriched with the money she advanced to pay the bills, which she characterized as money had and received. Mrs. Adamson also argued in the motion that because the undisputed facts showed that she properly held title to both certificates of deposit, she was entitled to summary judgment on the executor’s counterclaim.

The executor responded to the motion, asserting that because Mrs. Adamson filed a notice of her claim in the Henry County Probate Court, and that claim was still pending, she was precluded from filing her complaint in this case. The executor also argued that material issues of fact remained as to the ownership of the certificates of deposit.

The trial court found that “[e]ach of these claims are rife with issues that either are now or should be pending in other Courts. . . .” The court characterized Mrs. Adamson’s motion for summary judgment on the counterclaim as a request for the court to “declare that title to [the] two certificates of deposit became her exclusive property upon the death of her husband.” The court ruled that it was “without jurisdiction to render a Declaratory Judgment as to ownership of the certificates of deposit, or any other item of property.” The court further ruled that Mrs. Adamson’s “claim for reimbursement is the subject of litigation now pending in the Henry County Probate Court, and thus subject to a prior pending action defect.” The court concluded that “[a]s a result of the foregoing, [Mrs. Adamson’s] action in this Court is hereby dismissed. Any declaratory judgment action must be brought in a court of competent jurisdiction. [Mrs. Adamson’s] claim on the alleged debt can be pursued in the court in which it was originally brought.”

1. In three enumerations of error, Mrs. Adamson contends that the trial court erred in dismissing her complaint. At the outset we note that her complaint raised a cognizable claim. See King v. Dalton, 85 Ga. App. 641 (69 SE2d 907) (1952). Furthermore, despite the executor’s attempt to characterize Mrs. Adamson’s claim as an equitable claim for money had and received that should have been brought in superior court, such a claim is an action at law. Orient Ins. Co. v. Dunlap, 193 Ga. 241, 246 (17 SE2d 703) (1941). Accordingly, Mrs. Adamson was not required to file her complaint in superior court.

Decided March 15, 1996.

John L. Watson, Jr., for appellant.

Blount, Cash, Amos & Godwin, W. Mark Amos, Hancock & Echols, Ted N. Echols, for appellee.

Furthermore, while the record shows that Mrs. Adamson filed a notice of her claim with the probate court, such action did not preclude her from subsequently filing suit to recover the same unsatisfied debt. OCGA § 53-7-92 allows an executor six months from the date of his qualification to ascertain the condition of the estate. During that time, the executor is required to notify “creditors of the estate to render an account of their demand[s against the estate].” Id. Creditors are then required to file notices of their claims. Id. During this six-month period, creditors are prohibited from filing any actions against the executor for debts due by the estate. OCGA § 53-7-102. The purpose of this temporary bar is to protect the executor from suits against the estate while he settles the affairs of the estate. Nat. City Bank of Rome v. Welch, 53 Ga. App. 528 (3) (186 SE 596) (1936). It is clear, however, that our Code contemplates that actions for unsatisfied claims can be filed at the expiration of this six-month period. See OCGA § 53-7-102. Accordingly, because Mrs. Adamson filed her complaint more than six months after the date that the court qualified the executor, the trial court erred in dismissing the complaint due to a prior pending action.

2. Finally, in two enumerations of error, Mrs. Adamson contends that the trial court erred in failing to grant her motion for summary judgment on her claim for money had and received and in failing to dismiss the executor’s counterclaim as a compulsory counterclaim that should have been filed in a prior action. However, because it is clear that the trial court did not consider or rule upon the merits of Mrs. Adamson’s motions, we will not consider them here. “[T]he scope of [our] review is limited to the scope of the ruling in the trial court as shown by the trial record. . . .” Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (9a) (239 SE2d 686) (1977).

Furthermore, it is unclear from the record why the trial court characterized Mrs. Adamson’s motion for summary judgment on the executor’s counterclaim as a claim for declaratory relief. The record shows that Mrs. Adamson never filed such a claim. We therefore find that the court erred in failing to rule on the merits of Mrs. Adamson’s motion for summary judgment on that basis.

Judgment reversed.

Pope, P. J., concurs. Beasley, C. J., concurs in the judgment only.

       This is the second time the parties have come before this Court on matters relating to the Estate of Earnest Lamar Adamson, Jr. See In re Estate of Adamson, 215 Ga. App. 613 (451 SE2d 501) (1994).


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1853.
    SEELY et al. v. LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. et al. LOYD H. JOHNSON CONSTRUCTION COMPANY, INC. v. R & R PLUMBING, INC. et al. POWERS v. R & R PLUMBING, INC. et al.
    A95A1854.
    A95A1855.
    (470 SE2d 283)
   Andrews, Judge.

Loyd H. Johnson Construction Company, Inc. and Powers (the builder-sellers) built and sold a new residence to the Seelys. Soon after moving into the residence, Mr. and Ms. Seely discovered water leaking from the bathroom wall. The Seelys notified the builder-sellers, who sent R & R Plumbing, Inc. to fix the leak. R & R Plumbing was the company to which the builder-sellers had subcontracted the plumbing work during the construction of the residence. Rykard, a licensed plumber for R & R Plumbing, found the leak was caused by a nail driven into the bathroom wall by Singletary, who was the carpenter subcontractor during the construction. The nail had gone through the wall and pierced a pipe inside the wall. Rykard repaired the pipe by removing the nail and soldering the hole. Several days after R & R Plumbing fixed the leak, the repair failed and water again leaked from the hole. This time the leak occurred sometime during the early morning hours after the Seelys had retired for the night. When Ms. Seely got up during the night to use the bathroom, she was injured when she stepped in the water and slipped and fell.

Ms. Seely and Mr. Seely, who claimed loss of consortium, sued the builder-sellers for property damage and personal injuries resulting from the leak, claiming negligent construction or repair, breach of contract, breach of warranty, and strict liability. The builder-sellers answered denying liability and filed third-party complaints against the plumbing subcontractor, R & R Plumbing, and the carpenter subcontractor, Singletary, claiming they were independent contractors who performed the allegedly negligent work which caused the leak, and that they were liable on the basis of contribution or indemnity for any liability imposed on the builder-sellers.

The builder-sellers moved for summary judgment on the Seelys’ claims. The trial court granted summary judgment in favor of the builder-sellers as to all claims for personal injury and denied summary judgment as to any remaining claims for property damage. The Seelys appeal from this judgment in Case No. A95A1853.

R & R Plumbing and Singletary moved for summary judgment on the builder-sellers’ third-party complaints. The trial court granted summary judgment in favor of R & R Plumbing as to all issues. As to Singletary, the trial court granted summary judgment as to any liability on personal injury or claims deriving therefrom and as to any remaining property damage incurred by the Seelys after R & R Plumbing first repaired the leak. The trial court denied summary judgment with respect to any remaining property damage claims which the Seelys may have incurred as a result of the leak before it was first repaired by R & R Plumbing. In Case Nos. A95A1854 and A95A1855, the builder-sellers cross-appeal from these judgments.

Case No. A95A1853

1. The trial court erred by granting summary judgment in favor of the builder-sellers on the claims for negligent construction or repair. Because the breach of contract or warranty claims were based on the negligent construction or repair claim, summary judgment was also erroneously granted on these claims.

The builder-sellers claimed that the leak which caused the damages was entirely the fault of the independent contractors, R & R Plumbing and Singletary, over whose work the builder-sellers claim they exercised no direction and control. Compare OCGA § 51-2-5. This claim provided no basis for summary judgment in favor of the builder-sellers. The Seelys’ claims against the builder-sellers alleging negligent construction or repair and breach of promises or warranties to build the residence in a fit and workmanlike manner are governed by the decisions in Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919) (1981), aff’d in Worthey v. Holmes, 249 Ga. 104 (287 SE2d 9) (1982), in which the rule of caveat emptor was abandoned in cases involving latent defects in transactions between home buyers and builder-sellers of new homes. “[A] builder expressly or impliedly promises that he has built the house in a fit and workmanlike manner. Thus, the law imposes upon the professional builder . . . the obligation to exercise a reasonable degree of care, skill and ability, which certainly can be shown as that degree of care and skill which, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.” Williams v. Runion, 173 Ga. App. 54, 57 (325 SE2d 441) (1984). After Holmes, supra, “promises made as to serviceability and fitness for the use intended [do] not merge with the warranty deed provided the purchaser [can] establish negligence in the construction, and further provided the purchaser was not reasonably aware of the deficiencies about which the builder knew or should have known because of his superior knowledge in the trade.” Runion, supra at 56; Holmes, supra at 272. Accordingly, as to a claim based on negligent construction, since the builder-seller holds himself out as having the ability and expertise to build a fit and workmanlike residence, he cannot escape liability simply by claiming that an independent contractor he hired was wholly responsible for the negligent work. Hudgins v. Bacon, 171 Ga. App. 856, 862-863 (321 SE2d 359) (1984). In these cases, we recognize a right and a duty for builder-sellers to direct and control the work of those employed by them to the extent that an ordinarily prudent builder would exercise such direction and control to build a fit and workmanlike structure. Id. at 863. In other words, even assuming the buyers, in the exercise of ordinary care, would not have known of the latent construction defect, the issue to be determined is whether such “defects either were known to the builder-seller or in the exercise of ordinary care would have been discovered by him.” Worthey, supra, 249 Ga. at 106.

In the present case, the initial defect was a pipe leaking inside the bathroom wall shortly after the Seelys moved into the new residence. Only property damage resulted from this defect. The Seelys reported this defect to the builder-sellers, who sent R & R Plumbing to repair the hole in the pipe. The repair by R & R Plumbing was not successful and the pipe started leaking again from the same hole after a few days. There is no evidence that the Seelys knew or should have known of either of these defects before, on each occasion, they discovered water leaking from the bathroom wall. When she slipped and fell in the bathroom, Ms. Seely was unaware that the pipe had started leaking again. Furthermore, there was evidence creating a jury question as to whether, in the exercise of ordinary care, she should have seen and avoided the water hazard on the floor before she stepped in it and fell. See OCGA § 51-11-7.

The defect which caused the personal injuries at issue and any further property damage after the attempted repair was the failure to repair the leak in the pipe after it was first discovered by the Seelys and reported to the builder-sellers. Rykard, the licensed plumber who repaired the leak, stated that the soldering method he used to repair the pipe was the generally accepted method of making such a repair. In his deposition, however, he admitted that after he made the repair the pipe started leaking again from the same place because of either a failure of the materials he used or a failure of his workmanship in doing the job. Although R & R Plumbing later filed affidavits by Rykard and another licensed plumber stating that, in making the repair, Rykard complied with the standard of care ordinarily employed by plumbers under the circumstances, these affidavits contradicted the sworn testimony given by Rykard in his deposition without giving any reasonable explanation for the contradiction. Accordingly, under the rule stated in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the contradictory testimony is construed against R & R Plumbing on summary judgment leaving an issue of fact as to whether R & R Plumbing negligently repaired the pipe.

There was also evidence concerning the lack of a protective shield over the pipe at issue to protect it from the possibility of being pierced by a nail during construction. There was evidence that no such protective shield had been placed over the pipe, and competent expert testimony was given by an engineer that it was a standard practice in the construction industry for builders to ensure that such protective shields were installed. See Hudgins, supra at 858; Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 522-523 (301 SE2d 688) (1983). The expert testimony of two licensed plumbers that it was not the responsibility of plumbers to install protective pipe shields in residential construction jobs was disputed only by the expert testimony of an engineer. There was insufficient evidence to establish any overlapping expertise between the engineer and the plumbers with respect to this aspect of construction, so the engineer was not competent to establish the professional duty of the plumbers. See Riggins v. Wyatt, 215 Ga. App. 854, 855-856 (452 SE2d 577) (1994). Other evidence showed that Singletary, the carpenter subcontractor, drove the nail that punctured the pipe.

Although evidence of alleged negligent conduct that caused the initial hole in the pipe is relevant to any claim for property damage resulting from the leak that preceded the repair of the pipe, it is not relevant to the claims for personal injury and property damage subsequent to the failed repair of the pipe. This is because any negligent acts that initially caused the hole and the first leak prior to the repair were not a proximate cause of any damages resulting from the second leak after the attempted repair. The alleged negligent failure of R & R Plumbing to fix the leak after it was discovered intervened between the prior acts and became the sole proximate cause, if any, of the personal injuries and subsequent property damage. “ ‘[I]f the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connections so far as juridic purposes are concerned.’ Ethridge v. Nicholson, 80 Ga. App. 693, 696 (57 SE2d 231) (1950).” Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 807 (415 SE2d 705) (1992). While the issue of proximate cause is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (342 SE2d 497) (1986).

Under these facts, a jury issue remains as to whether or not the builder-sellers negligently failed to exercise a reasonable degree of care, skill and ability to direct and control the work of those employed to build the residence and whether or not the builder-sellers breached promises or warranties to build the residence in a fit and workmanlike manner. See Hudgins, supra at 861 (standard of proof for negligent construction claim is essentially the same as claim for breach of express duty to build residence in a fit and workmanlike manner).

2. As to the Seelys’ strict liability claim, this case deals with the alleged negligent construction of improvements to real property. It does not involve the manufacture of defective personal property. Accordingly, the trial court correctly granted summary judgment in favor of the builder-sellers on the strict liability claim. Garrett v. Panacon Corp., 130 Ga. App. 641, 643-645 (204 SE2d 354) (1974); Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 622-623 (371 SE2d 106) (1988).

Case Nos. A95A1854, A95A1855

3. Singletary was entitled to summary judgment in his favor on the third-party complaints brought against him by the builder-sellers because: (a) there is no evidence that Singletary was negligent when, in the normal course of his work, he drove a nail in the bathroom wall that, unknown to him, pierced an unshielded pipe inside the wall, and (b) in any event, putting the nail hole in the pipe was not the proximate cause of any damage that occurred after the hole was discovered and repaired. See Division 1. Accordingly, the trial court correctly granted summary judgment in part to Singletary and erred to the extent it denied summary judgment to Singletary.

4. As to the builder-sellers’ third-party complaints against R & R Plumbing, we initially address whether the complaints were professional negligence actions which required expert affidavits pursuant to OCGA § 9-11-9.1, and, if so, whether R & R Plumbing waived the defense that no expert affidavits were provided as required.

The third-party complaints against R & R Plumbing alleging that plumbing work was negligently done are professional negligence actions which required the contemporaneous filing of an expert affidavit pursuant to OCGA § 9-11-9.1. In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197) (1992), the Supreme Court concluded that the affidavit requirements of OCGA § 9-11-9.1 “apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24.” Under OCGA § 14-10-2 (2), professional service includes “any type of professional service which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43.” Under Chapter 14 of OCGA Title 43, the plumbing services at issue in the third-party complaints may only be performed pursuant to a license issued by the Division of Master Plumbers and Journeyman Plumbers of the State Construction Industry Licensing Board. OCGA §§ 43-14-3; 43-14-8. This Board is a “state examining board” pursuant to OCGA § 43-1-1. Accordingly, it is clear under Gillis, supra, that the third-party complaints against R & R Plumbing are professional negligence actions within the meaning of OCGA § 9-11-9.1.

Subsection (e) of OCGA § 9-11-9.1 provides in pertinent part that “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. . . .” (Emphasis supplied.) Expert affidavits were not filed with the third-party complaints as required by OCGA § 9-11-9.1. Rather than raising the lack of expert affidavits when it filed answers to the complaints as its initial responsive pleadings, R & R Plumbing first raised the failure to file expert affidavits in its subsequently filed motion for summary judgment. Since the plain language of the statute requires that the defense be raised in the initial responsive pleading, the failure to do so was a waiver of the defense. Colston v. Fred’s Pest Control, 210 Ga. App. 362, 364 (436 SE2d 23) (1993) (physical precedent).

The third-party professional negligence claims against R & R Plumbing were based on allegations that it negligently failed to place a protective shield on the pipe to prevent the nail hole and that it failed to properly repair the hole in the pipe after it was discovered. As to the first allegation, the only competent expert testimony was that it was not R & R Plumbing’s responsibility to put a shield on the pipe. Accordingly, summary judgment was properly granted in favor of R & R Plumbing with respect to third-party claims based on property damage which occurred as a result of the initial leak from the nail hole in the pipe, prior to the subsequent repair of the pipe. See Division 1. As to the second allegation, there was evidence creating a jury issue as to whether R & R Plumbing was negligent in its repair of the hole in the pipe. Accordingly, the trial court erred to the extent it granted summary judgment to R & R Plumbing with respect to third-party claims based on personal injury and property damage which occurred after the repair when water again leaked from the pipe. See Division 1. Under this claim of negligence, the builder-sellers have a viable third-party claim against R & R Plumbing to the extent that any negligence of R & R Plumbing was the proximate cause of any liability imposed on the builder-sellers. See Waddey v. Davis, 149 Ga. App. 308 (254 SE2d 465) (1979); ARA Transp. v. Barnes, 183 Ga. App. 424 (359 SE2d 157) (1987).

Judgments affirmed in part and reversed in part in Case Nos. A95A1853, A95A1854, and A95A1855.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. Me- Murray, P. J., concurs as to Case No. A95A1853 and concurs in the judgment only as to Case Nos. A95A1854 and A95A1855.

Decided March 15, 1996.

Barham, Dover, Bennett, Miller, Sherwood & Stone, John R. Bennett, for Seely.

Young, Thagard, Hoffman, Scott & Smith, H. Pearce Scott, for Loyd H. Johnson Construction Company, Inc.

Elliott & Blackburn, W. G. Elliott, W. Gus Elliott II, for R & R Plumbing, Inc.

Langdale, Vallotton & Linahan, Willie J. Linahan, for Powers.

McMurray, Presiding Judge,

concurring specially.

Since the majority recognizes a nondelegable “right and duty for builder-sellers to direct and control the work of those [subcontractors] employed by them to the extent that an ordinarily prudent builder would exercise such direction and control to build a fit and workmanlike [residential] structure,” (majority opinion, ante, p. 721), it is not necessary to consider whether such a duty exists under OCGA § 51-2-5 (3). Accordingly, I concur fully in Division 1 and the reversal of summary judgment in Case No. A95A1853. I also concur fully in Division 2 and the absence of strict liability against the defendant builder-sellers. In Case Nos. A95A1854 and A95A1855,1 fully concur with Division 3 that there is no evidence that cross-defendant Douglas L. Singletary, the carpenter subcontractor, was negligent when he nailed the bathroom wall baseboard or shoe molding, thereby piercing the unprotected or inadequately protected water pipe behind the sheetrock. Consequently, summary judgment was correctly granted to him. With respect to cross-defendant R & R Plumbing, Inc., it remains my view that the defense of failure to file an OCGA § 9-11-9.1 expert’s affidavit can be raised for the first time in a motion under OCGA § 9-11-12 (b) (6), under the holding of Hewett v. Kalish, 264 Ga. 183, 184 (1), 185 (442 SE2d 233). Consequently, I concur in the judgment only with respect to the partial reversal of summary judgment as to R & R Plumbing, Inc.