text:
    A93A0420, A93A0441, A93A0449, A93A0531.
    TOPA INSURANCE COMPANY v. ACREE et al. (four cases). TOPA INSURANCE COMPANY v. KITCHINGS et al.
    A93A0574.
    (433 SE2d 312)
   Blackburn, Judge.

This is the second appearance of these cases before this court. In Michael v. Acree, 202 Ga. App. 120 (413 SE2d 523) (1991), we held that the trial court erred in entering judgment against Melanie Michael for the amount of Topa Insurance Company’s (Topa) settlement with Shirley Trollinger Aeree, Robert Clinton Aeree, Pamela R. Kitchings, Chris M. Aeree, and Robert Todd Aeree (collectively referred to as the Aerees and Kitchings). In Michael, we specifically noted that Topa’s liability to the Aerees and Kitchings for breach of the settlement agreement was not reached as it was not before us. Id. at 122. In the present case, Topa appeals the trial court’s order granting the Aerees’ and Kitchings’ motions for summary judgment in which they sought enforcement of the settlement agreement directly against Topa. Topa also appeals the trial court’s denial of its motion for summary judgment in which it asserted that no coverage existed under its insurance contract. Topa’s liability to the Aerees and Kitchings for breach of the settlement agreement is now directly before us.

On September 20, 1989, while apparently driving the wrong direction on Interstate Highway 75, Michael collided with two automobiles injuring the Aerees and Kitchings. The Aerees and Kitchings each brought suit against Michael for damages incurred as a result of the collision. At the time of the collision, Michael was driving a 1978 Datsun 280Z automobile which was insured by Atlanta Casualty Company (Atlanta Casualty). Atlanta Casualty retained Jeanne Johnson to defend Michael. Thereafter, Johnson requested that Topa produce a copy of its excess insurance policy. Michael believed she was an insured under the excess coverage policy issued by Topa to John Joseph Clement.

Bill Davies, insurance adjuster for Topa, produced a copy of the declarations page, along with a copy of the excess policy. First Financial was listed as the “Primary Insurer” on the declarations page of Topa’s policy. Thereafter, Davies had several telephone conversations with Johnson regarding settlement of the Aerees’ and Kitchings’ claims. Davies indicated that Topa was interested in settlement if the primary carrier tendered its limits as required by Topa’s excess policy. On June 21, 1990, Johnson confirmed in writing to Davies that “[y]ou [Davies] have advised that, because Atlanta Casualty Company, as the primary carrier, had tendered its limits to the Plaintiff your [Topa’s] coverage therefore applies.” In late August 1990, John D’Orazio, counsel for Kitchings, Chris Aeree and Robert T. Aeree, came to an agreement with Davies regarding settlement of his clients’ claims against Michael. Within several days, Emory Bazemore, counsel for Shirley Aeree and Robert C. Aeree, also reached a settlement agreement with Davies, regarding his clients’ claims against Michael. By letter, dated August 27, 1990, Johnson confirmed that both cases had been settled and requested settlement drafts from Davies.

After much delay, Topa refused to honor the settlement. Topa was then added to one of the actions as a third-party defendant. The Aerees’ and Kitchings’ motions to enforce the settlement agreement against Michael and Michael’s motion for indemnity against Topa were granted by the trial court, whose order we reversed. See Michael, supra. Thereafter, the Aerees and Kitchings filed motions for summary judgment directly against Topa for breach of the settlement agreement, and Topa filed its own motion for summary judgment. Topa now appeals the trial court’s grant of the Aerees’ and Kitchings’ motions and the denial of its motion.

In its three enumerations of error, Topa contests the three findings of fact in the trial court’s order and asserts that the trial court erred in granting the Aerees’ and Kitchings’ motions for summary judgment and denying its motion for summary judgment. Pretermitting the correctness of the trial court’s findings of fact, we find that the award of summary judgment enforcing the settlement agreement between Topa and the Aerees and Kitchings was proper.

“A settlement agreement is a contract and the question of its enforceability is for the court to decide.” Gray v. Higgins, 205 Ga. App. 52, 53 (421 SE2d 341) (1992). “ ‘A compromise of a dispute is binding on the parties . . . The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract . . . Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.’ [Cit.]” Smith v. Haverty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812) (1985).

In the present case, Topa does not deny the existence of the settlement agreement but, instead, argues that the agreement was based on a mutual mistake of fact. Topa asserts that during the negotiations Davies thought that First Financial was providing its policy limits as the “Primary Carrier” indicated on the declarations page of Topa’s excess policy. However, this argument is without merit. The evidence is clear that in Johnson’s June 21, 1990, letter she indicated that Atlanta Casualty was tendering its policy limits as the primary carrier. After receiving this letter, Davies continued to negotiate with the parties until an agreement was reached at the end of August. “Thus, [Topa] already knew what it seeks to use as an excuse to avoid the settlement agreement. Having possession of such knowledge, [Topa] cannot claim that the lack of such knowledge entitles it to rescind the settlement contract.” Potomac Leasing Co. v. First Nat. Bank, 180 Ga. App. 255, 258 (348 SE2d 907) (1986).

Topa next argues that the settlement agreement is not enforceable because it was not in writing, as required by the statute of frauds. This argument was specifically addressed adversely to Topa in the first appearance of these cases before us. See Michael, supra at 121; see also Klag v. Home Ins. Co., 116 Ga. App. 678 (158 SE2d 444) (1967). Topa, citing Klag, supra, further argues that an oral settlement agreement is enforceable only when there is potential liability under the terms of the written policy and, in the present case, there was never any potential liability. This argument misinterprets our holding in Klag and the law in Georgia. In Klag, we were presented with similar facts as those found herein. The plaintiffs alleged that a settlement agreement had been reached; however, the defendant insurance company repudiated the settlement on the basis that no liability existed. Id. at 681, 685. As herein, the insurance company argued that the settlement agreement was unenforceable as it was not in writing. Id. at 686. We determined that “[t]he insurer has a financial interest in the claim against the insured even though it only becomes liable to the third party when legal liability is established against the insured, and where the insurer agrees to settle its potential liability as well as the potential liability of the insured, the oral promise by the insurer to settle or pay the claim against the insured is an original undertaking and need not be in writing.” Id. at 688. Upon the settlement by the insurance company, “[t]here is a new, original, and independent engagement, founded upon the merger and extinguishment of the pre-existing debt or demand and operating by way of novation and substitution.” Id. at 689. Therefore, the basis for the underlying debt, i.e., the insurance contract, is no longer relevant to the inquiry. By entering a settlement agreement with the Aerees and Kitchings, Topa settled all issues as to liability and foreclosed a dispute of liability.

Decided June 8, 1993 —

Reconsideration denied June 28, 1993.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Todd M. Yates, for appellant.

Finch, McCranie, Brown & Thrash, John S. D’Orazio, The Keenan Ashman Firm, Emory B. Bazemore, Bentley, Karesh & Seacrest, Gary L. Seacrest, Stephen D. Apolinsky, for appellees.

For the reasons stated above and regardless of the trial court’s basis, its order granting summary judgment to the Aerees and Kitchings and denying summary judgment to Topa is affirmed. See Dominiak v. Camden Tel. &c. Co., 205 Ga. App. 620, 622 (422 SE2d 887) (1992).

Judgment affirmed.

Johnson and Smith, JJ., concur.

       Prior to the collision, Michael had lived with John Clement for several years. Clement was the father of Michael’s child. However, at the time of the collision Michael was not residing with Clement due to difficulties with their relationship. Subsequent to the collision, Michael returned to Clement’s residence to live.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0483.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MARTIN et al.
    (433 SE2d 315)
   Johnson, Judge.

Bernard Martin, a minor, was riding his bicycle when he was hit by a truck driven by David Delk. The truck was owned by Larry Day. Martin’s mother, Linda Thomas, individually and as Martin’s next friend brought an action against Delk and Day seeking damages for the injuries he sustained. Below is a chronology of that action:

9/13/90 — Complaint filed naming Day and Delk as defendants.

9/14/90 — Day is served, although service is defective. Day admits in his deposition that he notified his insurer, Georgia Farm Bureau Mutual Insurance Company of the claim.

9/19/90 — Delk served.

10/20/90 — Delk fails to file answer and action against him goes into default.

11/1/90 — Plaintiffs send copy of complaint to Georgia Farm Bureau by certified mail.

11/3/90 — Delk’s 15-day grace period to open default expires.

11/5/90 — Day is properly served and forwards papers to Georgia Farm Bureau.

11/9/90 — Not having received the return receipt on the certified mailing of the complaint, plaintiffs personally serve Georgia Farm Bureau with the complaint.

12/4/90 — Georgia Farm Bureau files answer on behalf of Day.

12/14/90 — Evidentiary hearing fixes damages against Delk and judgment is entered. Day is voluntarily dismissed.

A second suit, and the underlying action in this appeal, was filed by plaintiffs against Georgia Farm Bureau seeking to recover the judgment against Delk pursuant to coverage under Day’s policy. Georgia Farm Bureau filed a timely answer and a motion for summary judgment. The trial court denied the motion for summary judgment and we granted Georgia Farm Bureau’s application for interlocutory appeal to review that ruling.

1. Georgia Farm Bureau claims that no coverage is available for a judgment against Delk because it had no proper notice of the underlying action. “The primary purpose of the notice requirement contained in OCGA § 33-7-15 is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances.” (Citation omitted.) Chadbrooke Ins. Co. v. Fowler, 206 Ga. App. 778, 780 (426 SE2d 578) (1992). Most of the cases construing this statute have focused on whether the insured was prejudiced by the total absence of notice of an action. In this case, however, we need not weigh the prejudicial impact of lack of notice because Georgia Farm Bureau’s insured, as well as counsel for the plaintiffs in the case, provided them with notice. This case is controlled by Mahone v. State Farm Mut. Auto. Ins. Co., 188 Ga. App. 664 (373 SE2d 809) (1988), in which we held that: “[T]he notice requirement contemplated by OCGA § 33-7-15 is satisfied if the insurer receives notice of the suit either from an insured or from a third party.” (Citation omitted.) Id. at 667 (2). In this case notice of the suit was provided by the insured, arguably twice. Day admitted that he gave notice of the original, albeit defective, service to Georgia Farm Bureau in September. He testified that he forwarded a copy of the complaint to his insurer on November 5. These actions fall squarely within the contemplation of OCGA § 33-7-15 (a). Not content to rely on the insured to give notice, plaintiffs’ counsel also notified Georgia Farm Bureau of the suit in accordance with OCGA § 33-7-15 (c), personally serving it with a copy of the complaint more than 30 days before entry of a judgment. Georgia Farm Bureau failed to avail itself of several opportunities to participate in the action against Delk. Summary judgment was properly denied regarding the issue of notice.

2. Georgia Farm Bureau argues that the trial court erred in denying its motion for summary judgment on the issue of limiting the amount of recovery to the policy limits and/or limiting recovery to the statutory maximum under the Georgia Motor Vehicle Accident Reparations Act because of Delk’s failure to elect coverage as an additional insured. These arguments are without merit. In Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 277 (339 SE2d 321) (1985) we considered the question: “[Wjhether the full amount of the judgments can be recovered when the insurer fails to defend under an obligation to do so. Or, on the other hand, is it protected by the policy limits?” We concluded, and the Supreme Court ultimately agreed, that whether the full amount of a judgment is recoverable is a jury question. Leader Nat. Ins. Co. v. Kemp & Son, 259 Ga. 329 (380 SE2d 458) (1989). We recognize that the underlying judgment in this case was against an additional insured under the policy, but that distinction does not affect the result. As noted by the court in Leader Nat., supra, there is no automatic entitlement to recover the full amount of the judgment, but the extent of the damages is an issue for consideration by a jury. The trial court correctly denied summary judgment as to this issue.

Delk’s failure to elect coverage does not limit recovery. As this court pointed out in Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (2) (390 SE2d 419) (1990), the presumption that an additional insured has waived coverage unless he has actively solicited it, is a principle which has been “honored as much in the breach as in the observance.” As in Starnes, Delk apparently has no insurance coverage, nor could he be looked to for payment of any judgment entered against him. “Compulsory liability insurance is required not only for the benefit of the insured but to ensure compensation for innocent victims of negligent motorists. Thus, we conclude that while [Delk’s] decision not to elect coverage as an additional insured may absolve [Georgia Farm Bureau] of responsibility to him in connection with the [appellees’] claim, it does not insulate the company from liability to the [appellees] for payment of any judgment which they might obtain against him based on his operation of the insured vehicle.” (Citations and punctuation omitted.) Id. at 323 (2).

3. Georgia Farm Bureau argues that application of the notice provisions of OCGA §§ 33-7-15 (c) and 40-9-103 (c) violate its constitutional rights of due process and equal protection because the methods of notice outlined in those sections force them to bind the insurer to indemnify the inaction of the additional insured. Such is not the case. It has been repeatedly held that an insurance company may be relieved of liability for a default judgment against the insured when the notice provisions of OCGA § 33-7-15 have not been met. Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97 (329 SE2d 189) (1985); Chadbrooke, supra.

Decided June 8, 1993 —

Reconsideration denied June 28, 1993 —

Dillard, Bower & East, Bryant H. Bower, Jr., for appellant.

Helms & Helms, Catherine H. Helms, J. Jeffrey Helms, Jr., for appellees.

4. It is clear that Georgia Farm Bureau had notice of the suit which named both Delk and Day as defendants. Therefore, there can be no question that this notice was adequate to enable it to protect its interests. Georgia Farm Bureau’s failure to defend will not relieve it of its obligation to pay a judgment rendered in that action, regardless of any defenses it might have relied upon had it participated in the underlying action. See Mahone, supra; see also Berryhill, supra. Specifically, Georgia Farm Bureau had the opportunity to litigate the issue of whether Delk was a permissive user, and therefore an additional insured under the policy, but failed to do so. The issue has, therefore, been waived.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       Georgia Farm Bureau argues that even though it was served 30 days prior to judgment, the action against Delk was already in default. This court notes that remedies are available for opening defaults, none of which were pursued by appellant.


author: Pope, Chief Judge.

text:
    A93A0597, A93A0598.
    COMBUSTION CHEMICALS, INC. v. SPIRES et al.; and vice versa.
    (433 SE2d 60)
   Pope, Chief Judge.

Plaintiffs Claude E. Spires and James E. Lively own a tract of land in Lincoln County. A creek runs through the land which originates on or is fed by the watershed of Graves Mountain. Defendant Combustion Engineering, Inc. is the owner of Graves Mountain where a defendant and its predecessors previously engaged in mining. The mining operation is now closed and currently defendant is engaged in reclamation of the land, as required by law. Large amounts of sulfuric acid were used in the mining operation. The rock was ground and soaked in a pond filled with a solution of water and sulfuric acid to separate out the various minerals extracted from the rock. Remaining on the land are tailing ponds. Because of residue in the ponds, the water in these ponds is highly acidic.

Plaintiffs brought an action against defendant claiming defendant’s negligence in maintaining its property had resulted in pollution of plaintiffs’ creek, resulting in damage to the value of their land. Plaintiffs also asserted claims for nuisance and trespass. Plaintiffs prayed for attorney fees and costs on the ground that defendant acted in bad faith and for punitive damages on the ground defendant acted wilfully, wantonly or with that entire want of care so as to raise the presumption of indifference to the consequences of its acts. The case was tried and the jury returned a verdict in favor of plaintiffs, awarding plaintiffs $30,500 for compensatory damages, $40,000 for attorney fees and costs of litigation and $100,000 for punitive damages. Defendant appeals the judgment (Case No. A93A0597) and plaintiffs cross-appeal (Case No. A93A0598), arguing the bifurcated trial on the issue of punitive damages was conducted improperly.

Case No. A93A0597

1. Defendant raises ten enumerations of error. We have considered each enumeration and conclude most of them have no merit. Specifically, we conclude venue was not improper; defendant was not entitled to directed verdict on plaintiffs’ claim for compensatory damages, punitive damages or attorney fees and expenses of litigation; and the trial court did not err in denying defendant’s several objections to specific evidence. We agree, however, that the charge to the jury was improper and prejudicial. If the jury had awarded only compensatory damages we would be constrained to hold that the charge, though prejudicial, did not constitute harmful error because the award of compensatory damages was amply supported by the evidence. However, we must conclude that the charge raised the likelihood of harm to defendant on the issue of punitive damages and attorney fees and costs of litigation for bad faith.

In its' instruction to the jury, the trial court used the following language: “I charge you that one is under a legal duty to use a dangerous instrumentality with a degree of care in proportion to the danger of the instrumentality. ... I instruct you that one who sets in motion an agency which directly damages another’s property, especially an agency of a dangerous nature, should suffer rather than an innocent property owner who has done nothing.”

The charge is obviously based upon the assumption that defendant used or maintained a dangerous instrumentality. We note that the defendant no longer conducts mining operations and that this action is based upon the claim that defendant has negligently conducted its reclamation project and negligently maintained the tailing ponds on its property so that they leak highly acidic water into the creek which runs through plaintiffs’ land. Defendant cites General Refractories Co. v. Rogers, 240 Ga. 228 (1) (239 SE2d 795) (1977) in support of its assertion that mining reclamation activities are not abnormally dangerous and thus the assumption on which the charge is based is erroneous. In General Refractories, the Georgia Supreme Court upheld the award of compensatory damages but reversed the award of punitive damages to an adjoining landowner who was injured by water, mud, sediment and dirt which ran off loose dirt piled on defendant’s land in the course of its mine reclamation activities. That opinion, however, was based on the holding that the “piling of dirt on defendant’s own property in carrying out a legitimate business activity” was not abnormally dangerous when supervised by a state agency. Id. at 231. In this case, the activity complained of is not siltation but the emission of highly acidic water which, as shown by the evidence, destroys a creek’s ability to sustain normal aquatic life. Thus, unlike the activity at issue in General Refractories, we cannot hold as a matter of law that the activity of holding highly acidic water in ponds which may pollute streams running through the property of adjoining landowners is not a dangerous activity. Neither can we conclude, based on the evidence produced in this case, that the activity is dangerous as a matter of law. The evidence showed that defendant’s reclamation activities were subject to supervision by a state environmental agency and it appears from the evidence that if the holding ponds had been properly maintained the acidity level of plaintiffs’ creek might not have been affected.

“The court, in charging the jury may assume admitted facts or those concerning which there is no dispute, but a charge is error that assumes a fact not admitted or indisputably proven.” Nat. Life &c. Ins. Co. v. Strickland, 91 Ga. App. 179, 186 (85 SE2d 461) (1954). We note that the erroneous assumption in the charge in Strickland was preceded by “if,” and therefore the assumption was stated contingently. Here, the characterization of defendant’s activity as dangerous was not made contingent upon the jury’s finding it to be dangerous but was summarily characterized as such. Thus, even greater reason exists to hold the charge in this case is erroneous.

The significance of characterizing an activity as inherently dangerous is that strict liability is imposed on one who engages in an abnormally dangerous activity. See C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457 (1) (249 SE2d 281) (1978). One of the issues in this case is whether defendant was liable to plaintiffs for conducting an inherently dangerous activity. Thus, the implied assumption that defendant employed a dangerous instrumentality was improper.

We agree with defendant that the language “one who sets in motion an agency which directly damages another’s property, especially an agency of a dangerous nature, should suffer rather than an innocent property owner who has done nothing,” is inflammatory and prejudicial. This language is taken from this court’s opinion in Brooks v. Ready Mix Concrete Co., 94 Ga. App. 791, 795 (2) (96 SE2d 213) (1956), involving a claim for strict liability for damages from blasting, an activity which has always been considered, as a matter of law, an abnormally dangerous activity. “[W]hile language used by an appellate court may embody sound law, it is not always appropriate to employ such language in instructing the jury.” Allen v. Hiwassee Land Co., 172 Ga. App. 814, 815 (324 SE2d 742) (1984). An appropriate charge to the jury in this case would simply have instructed the jury that if they found defendant conducted an abnormally dangerous activity which proximately caused plaintiffs’ injuries, then defendant should be held liable for those injuries.

Case No. A93A0598

2. The jury, in its verdict awarding plaintiffs compensatory damages and attorney fees and costs, expressly found that an additional award of punitive damages should be made. In accordance with OCGA § 51-12-5.1 (d) (2), the trial was recommenced to permit the presentation of evidence regarding the amount of punitive damages to be awarded. Defendant presented no evidence during this phase of the trial. In their cross-appeal, plaintiffs argue the trial court erred in permitting defendant to make opening and concluding arguments at the close of the punitive damages portion of the trial.

Pursuant to Rule 13.4 of the Uniform Superior Court Rules, the plaintiff in a civil action is entitled to the opening and concluding arguments unless the defendant introduces no evidence or admits a prima facie case. The Georgia Supreme Court has ruled that the parties to an action are entitled to present closing argument to the jury in the bifurcated punitive damages phase of the trial. McClure v. Gower, 259 Ga. 678 (3) (385 SE2d 271) (1989). We are aware of no case, however, that has addressed the issue of whether defendant is entitled to opening and concluding argument in the punitive damages phase if, as here, it presented evidence in the liability phase of the trial but not during the punitive damages phase. Clearly, evidence relating to the degree of culpability of the defendant, and therefore relevant to the issue of punitive damages, was presented during the first phase of the trial. It was, after all, during this phase that the jury was asked to determine if the evidence supported an award of punitive damages. In this phase, defendant presented evidence relating to its degree of care and knowledge of the consequences of its acts or omissions. Thus, even though defendant presented no evidence during the second phase of the trial, it cannot be said that defendant presented no evidence relating to punitive damages. In determining that the plaintiff was entitled to opening and concluding argument even though one of two joint tortfeasors presented no evidence, this court held: “ ‘The question for the court in all such cases, is, was there any evidence introduced for the defense, against the complainant’s demand? If there was, then the complainant’s solicitor is entitled to open and conclude the argument before the jury.’ [Cit.]” Gilson v. Mitchell, 131 Ga. App. 321, 332 (205 SE2d 421) (1974), aff’d, 233 Ga. 453 (211 SE2d 744) (1975). In this case, evidence was introduced during the initial phase of the trial in defense of plaintiffs’ claim for punitive damages. Thus, the trial court erred in permitting defendant to make the opening and concluding argument in the punitive damages phase of the trial.

Decided May 10, 1993 —

Reconsideration denied June 28, 1993 —

Frankel, Hardwick, Tanenbaum & Fink, Samuel N. Frankel, James J. Brissette, John D. Steel, for appellant.

Huguenin, Annis & Lewis, John M. B. Lewis IV, Bell & Pannell, John C. Bell, Jr., William A. Pannell, Pamela S. James, for appellees.

Judgments reversed.

Birdsong, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0688.
    GEORGIA SUBSEQUENT INJURY TRUST FUND v. BOTTLE WAREHOUSE, INC. et al.
    (433 SE2d 84)
   McMurray, Presiding Judge.

This is a workers’ compensation case concerning the payment of dependency benefits to the appellant Georgia Subsequent Injury Trust Fund pursuant to OCGA § 34-9-358. The last sentence of OCGA § 34-9-358 (a) provides that: “Each insurer or self-insurer who in a compensable fatal case finds no dependents qualifying to receive dependency benefits shall pay into this fund one-half of the benefits which would have been payable to a dependent or dependents if one or more existed, or $10,000.00, whichever is less.” (Emphasis supplied.) In this case, no qualified dependents have filed a claim for workers’ compensation benefits within the one-year period provided by law. No dependents of the deceased employee were found in the United States. The deceased was an Ethiopian national who had sent money to his parents in that country, although they were not shown to be his dependents.

The administrative law judge ordered the appellees, Bottle Warehouse, Inc. and Liberty Mutual Insurance Company, to deposit $10,000 in the Subsequent Injury Trust Fund. Appellees argued that OCGA § 34-9-358 (a) must be construed together with OCGA § 34-9-265 (b) (5) which limits the award to non-citizen and non-resident dependents to $1,000. See Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190 (429 SE2d 671). The full board found that “if employee had any dependents, they would be in Ethiopia” and ordered the deposit of $500. Held:

Decided June 10, 1993 —

Reconsideration denied June 28, 1993 —

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, K. Prabhaker Reddy, Assistant Attorney General, for appellant.

Hines & Head, Myrick C. Shinall, for appellees.

The board’s analysis is directed to the probable location of any actual unknown dependents. However, as argued by appellees, whether or not actual dependents existed is irrelevant.

To the extent that OCGA § 34-9-358 (a) requires computations to be made based on a “hypothetical” dependent, we fail to understand why it should be presumed that such dependents of alien workers are non-resident aliens. Certainly, such a presumption is not directed by the statute and no evidence was presented demonstrating the accuracy of such a generalization in the real world.

In the absence of dependents who are “not citizens or residents of the United States or the Dominion of Canada at the time of the accident,” the limitation on compensation contained in OCGA § 34-9-265 (b) (5) is not applicable. As no evidence establishing the relevance of this statutory provision was presented, the superior court erred in affirming the decision of the full board which applied the statute so as to reduce the award to appellant.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A93A0703.
    LOS ANGELES TILE COMPANY v. CHATHAM COUNTY BOARD OF TAX ASSESSORS.
    (433 SE2d 82)
   Andrews, Judge.

Los Angeles Tile Company (LATCO), an importer of ceramic tile, appealed to the superior court pursuant to OCGA § 48-5-311 (f) seeking to establish that tile stored in its Garden City warehouse was foreign merchandise in transit exempt under OCGA § 48-5-5 from ad valorem taxation by the Chatham County Board of Tax Assessors (the Board). LATCO appeals from the superior court order granting summary judgment in favor of the Board.

OCGA § 48-5-5 provides: “Foreign merchandise in transit shall acquire no situs so as to become subject to ad valorem taxation by political subdivisions of this state in which the port of original entry or the port of export of such merchandise is located. Such property shall not acquire situs by virtue of the fact that while in the warehouse the property is assembled, bound, joined, processed, disassembled, divided, cut, broken in bulk, relabeled, or repackaged. The grant of ‘no situs’ status shall be liberally construed to effect the purposes of this Code section.” “Foreign merchandise in transit” is defined under OCGA § 48-5-2 (4) (B) as “personal property of any description which has been or will be moved by waterborne commerce through any port located in this state and . . . [w]hich was shipped from a point of origin located outside the customs territory of the United States and on which United States customs duties are paid at or through any customs district or port located in this state, although stored or warehoused in the county where the port of entry is located while in transit to a final destination.” (Emphasis supplied.)

The quoted Code sections are in accord with United States Supreme Court authority interpreting provisions of the United States Constitution. The Supreme Court has determined that a non-discriminatory ad valorem tax does not violate Art. I, Sec. 10, cl. 2 of the federal constitution, commonly referred to as the “import-export” clause, where the imported goods are “no longer in transit.” Michelin Tire Corp. v. Wages, 423 U. S. 276 (96 SC 535, 46 LE2d 495) (1976). “In considering the related issue of whether goods are ‘in transit’ so as to be exempt from state taxation under the commerce clause of the federal constitution [Art. I, Sec. 8, cl. 3], the . . . Supreme Court has stated that the ‘crucial question’ is that of ‘continuity of transit.’ Carson Petroleum Co. v. Vial, 279 U. S. 95, 101 (49 SC 292, 73 LE 626) (1929).” Seabrook Corp. v. Chatham County Bd. of Equalization, 195 Ga. App. 730, 731 (394 SE2d 796) (1990).

Both parties rely on the portion of the record certified to the clerk of the superior court reflecting LATCO’s application to the Chatham County Board of Tax Assessors for an exemption under OCGA § 48-5-5. The application shows that LATCO imports ceramic tile from Japan and the Netherlands for sale in the United States. After the tile is shipped to the port of Savannah, it is stored in LATCO’s Garden City warehouse as inventory for an average of seven months. The application indicates that the purpose of the interruption in transit is “[t]o await a buyer,” and “[t]o distribute when orders [are] received.” The destination of the property is listed as “Interstate Commerce.” The application further states: “After receipt of the sales order, the material is pulled from our stock and shipped via independent carrier.” LATCO argues that the tile remained in transit to be shipped ultimately to its Los Angeles office.

The issue is whether the interruption in the transport of the goods is sufficient for the state’s taxing power to attach, or whether the stop is merely part of a continuity of transit. Generally, the state may tax where the delay may be characterized as having a business purpose or advantage, rather than just an incidental interruption in the continuity of transit. “The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.” Minnesota v. Blasius, 290 U. S. 1, 10 (54 SC 34, 78 LE 131) (1933). “ ‘A temporary pause in (the) transit (of the goods) does not mean that they are no longer “in commerce”. . . (I)f the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destinations, they remain “in commerce” until they reach those points. Then there is a practical continuity of movement of the goods until they reach the customers for whom they are intended.’ Walling v. Jacksonville Paper Co., 317 U. S. 564, 568 (63 SC 332, 87 LE 460) (1943). However, <(w)here property has come to rest within a State, being held there at the pleasure of the owner ... so that he may dispose of it either within the State, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of property within the State and is thus subject to its taxing power.’ Minnesota v. Blasius, [supra, 290 U. S. at 10].” Seabrook Corp., supra at 731-732. “A characteristic feature of those cases in which the state has been allowed to tax property which has come to rest ... is that at the time the tax is laid it cannot be determined what the ultimate destination or use of the property may be.” Independent Warehouses v. Scheele, 331 U. S. 70 (67 SC 1062, 91 LE 1346) (1947).

As the party initiating the appeal to the superior court, LATCO had the burden of proof. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (350 SE2d 790) (1986). “[On] summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Applying these principles, we conclude the trial court correctly granted summary judgment in favor of the Board. There was an absence of any evidence to support a finding that the tile remained “in transit,” and exempt from taxation. LATCO’s reliance on its interrogatory answer stating only that unspecified inventory is shipped monthly from the Garden City warehouse to LATCO’s office in Los Angeles is not sufficient to create a factual question as to whether tile imported through the port of Savannah arriving at the Garden City warehouse remained in transit to another destination. Moreover, the answer was unverified and not properly considered as evidence in opposition to the motion for summary judgment. See Falcone Intl. v. Clowes, 184 Ga. App. 442, 443 (361 SE2d 708) (1987).

Decided June 8, 1993 —

Reconsideration denied June 28, 1993 —

Forbes & Bowman, Morton G. Forbes, John A. Foster, for appellant.

Howard & Racz, Molly M. Howard, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


author: Blackburn, Judge.

text:
    A93A1402.
    BODENHEIMER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
    (433 SE2d 75)
   Blackburn, Judge.

On November 9, 1989, the appellant/plaintiif, Charles Bodenheimer, parked his pickup truck in front of a convenience store to use a pay telephone which was mounted on the exterior wall of the store. After making his call, he stepped backward and tripped on some anchor bolts protruding about two inches from the sidewalk where a telephone booth previously had been situated, and fell on one of the bolts.

Subsequently, he commenced this action to recover damages for his injuries against the owners of the convenience store; Southern Bell Telephone & Telegraph Company (Southern Bell); the company hired by Southern Bell to refurbish its telephone booths; and the subcontracting company that actually removed the booth in February 1989. This appeal follows the trial court’s grant of summary judgment in favor of all the defendants.

On the day of the incident, the weather was clear and sunny, and no obstruction or distraction prevented Bodenheimer from seeing the protruding anchor bolts in the sidewalk. He admitted that he had not looked down at the sidewalk prior to the trip and fall. After parking his truck, he had looked at the telephone as he walked the short distance to it from his truck; during his call, he had looked away from the store building; and after his call, he had stepped backwards without looking, and tripped over one of the bolts. The anchor bolts were the same general color as the sidewalk, but, as noted by the trial court, photographs in the record reveal that the bolts were visible.

1. In order for an invitee to recover for injuries sustained due to an allegedly hazardous condition on certain property, he must show fault on the part of the owner or occupier of the property, and his own ignorance of the danger. “[A]n invitee must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the owner’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985).

This court has observed that an invitee is under an equal duty with the owner to use his or her sight to discover any defect or dangers on the property. See Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 263 (427 SE2d 547) (1993); Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164) (1986). “[Wjhere the evidence shows that the object is most obvious and apparent to sight, so that one looking ahead would necessarily see it, the fact that a plaintiff merely failed to look will not relieve him from responsibility for his own misadventure.” Forde v. C & S Ga. Corp., supra at 403.

However, it should be emphasized that “[a]n invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a reasonable lookout depends on all the circumstances at the time and place.” (Citations and punctuation omitted.) Pinkney v. VMS Realty, 189 Ga. App. 177, 178 (375 SE2d 90) (1988). It is clear however, that the controller of the premises has a duty to inspect said premises and to maintain a premises safe from patent defects for the protection of invitees. Barlow v. Brant, 206 Ga. App. 313 (425 SE2d 309) (1992); Begin v. Ga. Championship Wrestling, 172 Ga. App. 293 (322 SE2d 737) (1984).

In the instant case, there is no question about the appellees’ knowledge of the hazard maintained on the sidewalk; they created the condition, and allowed it to exist for nine months in violation of their duty to maintain the premises in a safe condition prior to Bodenheimer’s injury. It is uncontroverted that Bodenheimer did not have actual knowledge of the protruding anchor bolts until he tripped and was impaled on one of them. Although it may not be said that the protruding bolts constituted a mantrap or hidden danger, we also cannot say as a matter of law that they were so obvious and apparent to sight that looking ahead would necessarily result in their detection under all circumstances.

The fact that Bodenheimer did not observe the dangerous condition of which defendants had knowledge upon his approach to the pay telephone, is of no consequence, as he was not injured at that time. Bodenheimer traversed the distance to the telephone, made a telephone call, and was injured as he backed away from the telephone, in the normal and expected manner of one facing a telephone and of which backing, defendants knew or should have known, would occur as it is generally required that one back away from a pay telephone. With defendants’ knowledge of this inherent requirement and the obvious danger of metal bolts protruding from the floor, defendants had a heightened duty to remove the patently dangerous condition. The greater the danger, the greater is the duty of the controller of the premises to inspect and protect.

The operative facts in this case are that Bodenheimer parked his truck just a few feet from the telephone; he kept his eyes on the telephone as he approached it; during his call, he looked away from the building, and not down towards the sidewalk; after completing his call, he stepped back away from the telephone without first looking, and then he tripped over the bolt. In cases of this nature, “‘[t]he established standard is whether, taking everything into account the act is one which the common sense of mankind pronounces want of such prudence as the ordinarily careful person would use in a like situation.’ ” Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966). Under the facts of this case, we cannot conclude as a matter of law that the “common sense of mankind” would pronounce Bodenheimer’s actions as failing to exercise the care of an ordinarily prudent person. For that reason, we find that the appellees were not entitled to summary judgment on this ground.

2. Southern Bell and the company with which it contracted to refurbish its telephone booths also urge this court to uphold the grant of summary judgment for them on the grounds that they may not be held responsible for the acts of the subcontractor who actually removed the booth and left the anchor bolts in the sidewalk, because that subcontractor was an independent contractor. However, we find that summary judgment would also be inappropriate on that basis.

Generally, “[a]n employer is not responsible for torts committed by his employee when the employee exercises an independent business and it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. Nevertheless, an employer may be liable for the negligence of a contractor in certain situations, one of which is where the employer ratifies the unauthorized wrong of the independent contractor. OCGA § 51-2-5 (6). “Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer. The ratification must be, not of the contract, but of the unauthorized wrong. Ordinarily, in order to ratify an act, one must have knowledge of the act.” (Citations and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987).

Decided June 4, 1993

— Reconsideration denied June 21, 1993 —

Reconsideration dismissed June 28, 1993 —

Falanga, Barrow & Chalker, Ronald F. Chalker, for appellant.

Murray & Temple, William D. Strickland, John C. McCaffery, Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Gregory H. Wheeler, Croy, Harris & Hammond, A. Cullen Hammond, for appellees.

In the instant case, issues of fact exist over Southern Bell’s and the general contractor’s knowledge of the condition left by the independent contractor, and over their acceptance of that condition. Indeed, considering their duty to maintain or leave the premises in a safe condition for invitees, along with the fact that the defective condition was allowed to exist for nine months, it could be argued that the evidence leaves little room for concluding anything other than a ratification of the independent contractor’s work.

Judgment reversed.

McMurray, P. J., concurs. Johnson, J., concurs in the judgment only.


text:
    A93A1418.
    GOGGIN v. GOLDMAN.
    (433 SE2d 85)
   McMurray, Presiding Judge.

Plaintiff Goggin was injured when his automobile hydroplaned and slid into a telephone pole. He was transported to the emergency room at North Fulton Regional Hospital where defendant Goldman, a general surgeon, became involved in the management of his treatment. While other injuries were immediately diagnosed and treated, it was not until approximately 60 hours after plaintiff’s crash that a blood clot was discovered in the left renal artery. This blood clot terminated the supply of blood to, and resulted in the permanent loss of function of, plaintiff’s left kidney.

Plaintiff’s action is predicated on the theory that the loss of his kidney was caused by the negligence of defendant in failing to order x-rays and other tests for evaluation of possible injury to plaintiff’s urinary tract. According to the testimony of plaintiff’s expert, such tests would have discovered the blood clot and presented some opportunity to salvage the kidney. Upon the trial of the case, a mistrial resulted when the jury was unable to agree on a verdict. Defendant moved for a judgment notwithstanding the mistrial and the trial court granted this motion based on its conclusion that plaintiff had failed to present any proof that his injury was proximately caused by defendant’s negligence. The sole enumeration of error raised by plaintiff’s appeal is the trial court’s grant of defendant’s motion for judgment notwithstanding the mistrial. Held:

“A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where ‘(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict.’ [OCGA § 9-11-50 (a)].” Gordon v. Carter, 126 Ga. App. 343, 344 (1) (190 SE2d 570). See also Findley v. McDaniel, 158 Ga. App. 445, 446 (1) (280 SE2d 858). “ ‘ “(T)he primary question for determination is whether the evidence introduced, with all reasonable deductions . . . demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. (Cits.) (T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).’ Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (329 SE2d 918) (1985). The question is whether the evidence demands a verdict for the movant; if there is no evidence to support the verdict, the motion must be granted. City of Atlanta v. West, 160 Ga. App. 609, 611 (2) (287 SE2d 558) (1981).” Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164 (1) (397 SE2d 720).

“A motion for directed verdict can be granted only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’ OCGA § 9-11-50 (formerly Code Ann. § 81A-150). Under the statutory definition of medical malpractice, ‘(a) person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.’ OCGA § 51-1-27 (formerly Code Ann. § 84-924). Thus, there are three essential elements imposing liability upon which recovery is bottomed: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. ‘Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.’ Maddox v. Houston County Hospital Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981).” Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1a) (304 SE2d 922). Additionally, there can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided. Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269).

Decided June 10, 1993 —

Reconsideration denied June 28, 1993 —

Sanford A. Rice, for appellant.

Whitehurst & Frick, Elaine W. Whitehurst, for appellee.

Our review of the evidence at trial is limited to the excerpts from the trial transcript submitted on appeal. This evidence serves to only suggest the mere possibility that timely discovery of the blood clot at issue would have made it possible to save the function of plaintiff’s kidney. The trial court’s order notes that plaintiff’s expert testified that “even if a proper diagnosis was made and surgery performed within four hours of Plaintiff’s injury, he could not say within a reasonable degree of medical certainty that it would have been possible to save the function of the kidney.” Nothing in the excerpt from this witness’ testimony included in the record contradicts this statement. Nor is there any other evidence in the record submitted on appeal which may be viewed as satisfying plaintiff’s burden of proof. Plaintiff having failed to prove his case, the trial court did not err in granting defendant’s motion for judgment notwithstanding the mistrial.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1487.
    GRIGGS v. ALL-STEEL BUILDINGS, INC. et al.
    (433 SE2d 89)
   Blackburn, Judge.

This is the second appearance of this case before this court. In Griggs v. All-Steel Bldgs., 201 Ga. App. 111 (410 SE2d 309) (1991), we noted that Griggs may move the Clayton County Superior Court to set aside the subject workers’ compensation award based on fraud, pursuant to OCGA § 9-11-60 (d). That case did not address the question of remedies related to a separate cause of action based on the fraud of the defendants. In the present case, the appellant/plaintiff, Andy M. Griggs, by and through his mother acting as next friend, filed the instant tort action in the State Court of Fulton County against appellees/defendants All-Steel Buildings, Inc. (All-Steel), his former employer, and Aetna Casualty & Surety Company (Aetna), its workers’ compensation insurance carrier, for damages resulting from appellees’ fraudulent procurement of a settlement agreement with the appellant in the underlying workers’ compensation case. The appellees responded, asserting several defenses. Five months later, the appellees moved for the dismissal of the complaint pursuant to OCGA § 9-11-12 (b) (1) based upon the trial court’s lack of subject matter jurisdiction. The trial court granted the appellees’ motion to dismiss, concluding that the appellant’s recourse is the filing of a motion to set aside the judgment in the Clayton County Superior Court, the superior court of the county in which the workers’ compensation claim arose, and this appeal followed.

The employee sustained a severe head injury on November 4, 1987, arising out of and in the course of his employment. His claim was accepted as compensable, and he was paid weekly indemnity and medical benefits by Aetna on behalf of All-Steel.

Griggs sustained serious head injuries and brain damage as a result of the subject incident and is permanently mentally impaired. The claims agent for Aetna asked Griggs to meet concerning a settlement of the case. When Griggs responded that he wanted to call an attorney, he was told that was unnecessary as an attorney would only cost him money. Griggs met the agent at a local restaurant and a “settlement agreement” resulted, which was submitted to and approved by the State Board of Workers’ Compensation on May 31, 1988. Defendants did not advise the Board of: (1) Griggs’ head injuries; (2) Griggs’ impaired mental capacity; (3) Griggs’ desire to have an attorney, or (4) Aetna’s inappropriate advice to Griggs that he did not need an attorney.

The Board was unaware of the above facts at the time it approved the “settlement agreement.” In June 1989, the Clayton County Superior Court approved a petition filed by Aetna and All-Steel, to make the May 31,1988, award of the Board, the award of the court. Griggs had in the meantime moved the Board to set aside the May 31, 1988, award and had then filed the prior action in the Fulton County State Court.

Griggs contends that the trial court erred in holding that as a matter of law, his fraud claim against the defendants was barred by the Workers’ Compensation Act and that his remedies were exclusively those provided under said act. We agree.

“[W]here the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer.” Freeman v. Ryder Truck Lines, 244 Ga. 80, 82 (259 SE2d 36) (1979). Conversely, although “the remedy provided by this statute is exclusive within the field of its operation, but it does not exclude redress in cases to which it is not applicable.” Covington v. Berkeley Granite Corp., 182 Ga. 235, 237 (184 SE 871) (1936).

It is true, that in general, our workers’ compensation law provides an employee’s exclusive remedy against his employer for on-the-job injuries and provides benefits to such employee injured “by accident arising out of and in the course of employment.” OCGA § 34-9-1 (4). Fraud, however, is not an “accident” and the damages resulting therefrom do not arise “out of or in the course of the employment,” but rather, result from the intentional misconduct of the defendants subsequent to the physical injuries which gave rise to the original workers’ compensation claim. Exemplary damages for fraud are not within the power of the Workers’ Compensation Board to award.

Defendants’ argument that plaintiff’s exclusive remedy for this action in fraud is under the Workers’ Compensation Act pursuant to OCGA § 34-9-11, is misplaced. Georgia appellate courts have held that plaintiffs’ remedies for fraud do not lie exclusively in the domain of the Workers’ Compensation Board. In Cline v. Aetna Cas. &c. Co., 137 Ga. App. 76 (223 SE2d 14) (1975), as in the instant case, plaintiff filed a complaint alleging the defendants, including the employer and workers’ compensation carrier, defrauded claimant by withholding medical evidence of claimant’s condition from the Workers’ Compensation Board at the time of approval of the lump sum settlement and sought recovery of special' damages for loss of workers’ compensation benefits and exemplary damages to deter the defendants from again perpetrating such fraud. In that case, the court held: “Such an action does not lie within the jurisdiction of the workmen’s compensation board.” Id. at 77. “[T]he right to bring an ordinary action for damages is not excluded by this statute [workers’ compensation statute] as to injuries which do not fall within its terms.” (Citations and punctuation omitted.) Bright v. Nimmo, 253 Ga. 378, 379-380 (320 SE2d 365) (1984).

In Smith v. Rich’s, Inc., 104 Ga. App. 883 (123 SE2d 316) (1961), the court held that intentional torts are not covered by the Workers’ Compensation Act and a common law tort action could be maintained where plaintiff alleged that her employer falsely arrested and imprisoned her for five hours while investigating a shortage of money, and that during this period she was denied medicine and milk to relieve the pain of stomach ulcers and was denied food and water and the use of the rest room.

In Bright v. Nimmo, supra, the Georgia Supreme Court in responding to a question certified to it by the United States Court of Appeals for the Eleventh Circuit, held that where the plaintiff alleges merely that the defendants wilfully and intentionally delayed paying workers’ compensation benefits to him and that the defendants delay caused plaintiff adverse financial consequences and foreclosure upon his home (claims which are not normally compensable even in a tort action), claimant has no independent cause of action against the employer or insurer where reasonable penalties for such delay are provided by the Act. The instant case is readily distinguishable as it involves an action for fraud as opposed to mere delay in the payment of sums which the carrier did in fact pay. As the court pointed out in Bright v. Nimmo, supra at 381, “almost every delay in payment by a solvent payor will be wilful and intentional with the consequences upon the payee being dependent upon the payee’s financial circumstances.” No allegation of fraud was made in Bright, and an award of attorney fees and penalties had been made by the Workers’ Compensation Board pursuant to OCGA § 34-9-221 (e), which provided a specific remedy for delay in payment. The Workers’ Compensation Board had authority to award sums to satisfy reasonably all appropriate elements of damage to which claimant would be entitled for a mere delay in payment. Fraud is addressed by the Workers’ Compensation Act only to the extent that an award may be set aside based on fraud; however, in this action, “[claimant is not seeking to set aside an order procured by fraud; claimant is seeking damages against the procurers of fraud.” Cline v. Aetna Cas. &c. Co., supra at 77. The intention of the Georgia Supreme Court to confirm the existence of a common law tort cause of action in fraud cases in Bright v. Nimmo, supra, is made clear by the fact that Cline v. Aetna Cas. &c. Co., supra, is cited therein as authorizing such holding. See Bright v. Nimmo, supra at 380.

Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (320 SE2d 368) (1984), relied upon by appellee is factually distinguishable. In that case, Davis sought relief in the Fulton Superior Court for an alleged breach of the settlement agreement in a workers’ compensation case, which agreement had been made an award of the Workers’ Compensation Board, after Aetna filed a notice to controvert the claim for expenses incurred for knee surgery, subsequent to the award and authorized under the terms of the award, which award left medicals conditionally open for a three-year period.

The Georgia Court of Appeals held in part, that seeking judicial enforcement of the compensability of the expenses as a fact question exists in connection therewith and same must be resolved by the Workers’ Compensation Board, which holding was affirmed by the Georgia Supreme Court. Id.

Davis contended that although the settlement agreement was an award of the Workers’ Compensation Board, it was also a contract, the tortious breach of which affords her a cause of action cognizable in superior court. The Court of Appeals agreed with Davis and reversed the dismissal. The Supreme Court reversed this holding finding that the duty of approving items of medical expense is placed on the Workers’ Compensation Board and if there must be further expense incurred after an award is made, bills for these expenses should be submitted to the Board for approval and award. It follows, that Aetna was authorized to controvert and decline to pay the claim until such time as the Board determined whether it was compensable under the award. This is not changed by the fact that the award is also a settlement agreement where the Workers’ Compensation Act provides a reasonable remedy for any failure to comply with the award as alleged by Davis. Davis did not allege fraud, and the Supreme Court essentially ruled that a claimant cannot maintain a simple breach of contract action for alleged violations of an award of the Workers’ Compensation Board, where the Workers’ Compensation Act provides a reasonable remedy for such conduct. Davis clearly does not stand for the position argued by appellee herein, since Davis cites as authority, Bright v. Nimmo, supra, which case refers to Cline v. Aetna Cas. &c. Co., (which authorizes independent tort actions for fraud) at 380, as stated above.

Decided June 11, 1993 —

Reconsideration denied June 28, 1993 —

Davis, Gregory, & Christy, Hardy Gregory, Jr., Burdine & Brown, Thomas F. Brown II, Drew, Eckl & Farnham, John G. Blackmon, Jr., for appellant.

Neely & Player, Linda B. Foster, Andrew J. Hamilton, for appellees.

Georgia law provides a common law cause of action for fraud or other torts committed by an employer or workers’ compensation insurer against a claimant, where such act is not an accident arising out of and in the course of employment and where a reasonable remedy for such conduct is not provided by the Workers’ Compensation Act.

For the purpose of this review, all allegations contained in plaintiffs pleadings are accepted as true. No attempt is made herein to rule on any issue not presently before this court, including the application of the statute of limitation, the truth of plaintiff’s allegations or the sufficiency of plaintiff’s proof of the fraud alleged.

Because of the above holding, it is unnecessary to address appellant’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.

       This was the underlying case cited as Griggs v. All-Steel Bldgs., 201 Ga. App. 111, supra.


text:
    A93A0009.
    SHELTER AMERICA CORPORATION v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (433 SE2d 140)
   Andrews, Judge.

Shelter America appeals the trial court’s grant of Georgia Farm Bureau’s motion for summary judgment arising from the following facts:

Shelter America filed a complaint against Georgia Farm Bureau on October 17, 1990, alleging that it was the mortgagee of a mobile home which was insured with Georgia Farm Bureau. The mobile home was destroyed by fire on December 24, 1988. Shelter America alleged that although it complied with all policy conditions, Georgia Farm Bureau refused to pay for the loss.

Georgia Farm Bureau answered the complaint, arguing that Shelter America’s claim was barred because it was not brought within the one-year contractual limitation in the policy. Georgia Farm Bureau filed a motion for summary judgment on this basis, and from the trial court’s grant of that motion, Shelter America appeals.

The record before us establishes the following: Shelter America, which in 1989 was a business with both a legal division and an insurance department, initially contacted Georgia Farm Bureau on January 4, 1989, regarding the loss. Several phone calls between the parties ensued and Shelter America was informed that Georgia Farm Bureau’s investigation could take up to several months to complete.

On March 28, 1989, Georgia Farm Bureau sent Shelter America the proof of loss form. In the letter enclosing the forms, Georgia Farm Bureau stated that “nothing herein is intended or should be construed to amount to a waiver of Georgia Farm Bureau’s rights under the terms and conditions of the policy at issue in this matter. In fact, Georgia Farm Bureau insists upon strict compliance with all the terms and conditions set forth in the policy.” Shelter America completed the proof of loss form and complied with that portion of the policy.

Communications continued between Shelter America and Georgia Farm Bureau and preliminary settlement negotiations began. The Shelter America representative with whom Georgia Farm Bureau communicated at this time did not have the authority to settle’ the case. On November 7, 1989, Georgia Farm Bureau again wrote Shelter America stating that it wished to discuss the claim further and that “nothing in this letter is intended as a waiver of any right of Georgia Farm Bureau Mutual Insurance Company to insist upon strict compliance with all contractual terms and conditions.” On November 14, 1989, Shelter America, through its legal division, sent a letter in which it contested the amount at which the mobile home had been valued.

On December 8, 1989, Georgia Farm Bureau wrote another letter in which it set forth the method by which it had calculated its value of the mobile home. In that letter, Georgia Farm Bureau stated again: “nothing in this letter is intended as a waiver of any right of the Georgia Farm Bureau to insist upon strict compliance with all contractual terms and conditions, including any applicable limitations, nor as a waiver of any defense Georgia Farm Bureau may have under the insurance contract or applicable law.”

On December 19, 1989, Shelter America replied again to Georgia Farm Bureau, again setting forth concerns regarding the value of the loss. On January 8, 1990, Georgia Farm Bureau informed Shelter America that it would not pay the claim and that the one-year suit limitation of the policy barred any suit against it and this suit ensued.

1. In its first enumeration, Shelter America argues that an issue of fact remains regarding whether Georgia Farm Bureau waived its right to rely on the one-year contractual limitation provision and that the trial court erred in granting summary judgment. Shelter America contends that Georgia Farm Bureau unnecessarily delayed negotiating and created confusion regarding the value of the mobile home, thus lulling it into a false sense of security and that these actions bar Georgia Farm Bureau from relying on the one-year limitation.

We find this argument without merit. We are aware that “ ‘[i]t is a universal rule that, where the insurer, by its acts in negotiating for a settlement, has led the policyholder to believe that he will be paid without suit, the insurer cannot take advantage of a provision in the policy which requires the action to be brought in a certain time.’ ” Giles v. Nationwide &c. Ins. Co., 199 Ga. App. 483, 485 (1) (405 SE2d 112) (1991). On the other hand, “[m]ere negotiation for possible settlement unsuccessfully accomplished is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute an estoppel by conduct thus precluding an assertion of that defense by the insured.” Desai v. Safeco Ins. Co., 173 Ga. App. 815, 818 (328 SE2d 376) (1985); see also OCGA § 33-24-40.

There is no showing in this record of any affirmative statement or other act by Georgia Farm Bureau that would lead Shelter America to believe that the insurer would waive the contractual limitation; in fact Georgia Farm Bureau explicitly stated on three occasions that no contractual provisions were waived. The parties’ inconclusive settlement negotiations were explicitly conditioned on the policy terms. Accordingly, we find no error in the trial court’s order. See also Edwards v. Atlantic Ins. Co., 203 Ga. App. 608 (417 SE2d 410) (1992); Suntrust Mtg. v. Ga. Farm Bureau Mut. Ins. Co., 203 Ga. App. 40 (4) (416 SE2d 322) (1992); compare Lynn v. Ga. Farm Bureau Mut. Ins. Co., 189 Ga. App. 209 (375 SE2d 259) (1988); Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244 (322 SE2d 915) (1984).

Similarly, Shelter America’s third enumeration, which argues that Georgia Farm Bureau is equitably estopped from asserting the one-year contractual limitation is without merit.

2. In its second enumeration, Shelter America asserts that a jury issue exists with respect to whether the one-year limitation period in the policy was tolled until October 3, 1989, when Georgia Farm Bureau discussed the claim with it. This argument has no merit. First, the cases which appellant cites discuss the tolling of the time during the negotiations, see Looney v. Ga. Farm Bureau Ins. Co., 141 Ga. App. 266 (233 SE2d 248) (1977), not up until the negotiations begin, which is part of the argument appellant seems to advance here. Shelter America does not explain the ten-month delay between the denial of liability and filing suit. Furthermore, the contention that settlement negotiations in this context toll the time for compliance with this contractual provision has been rejected several times by this court. See Universal Scientific v. Safeco Ins. Co., 174 Ga. App. 768 (331 SE2d 611) (1985); Holland v. Independent Fire Ins. Co., 168 Ga. App. 761, 762 (2) (310 SE2d 297) (1983); see generally OCGA § 33-24-40.

3. Shelter America claims that a factual issue remains as to whether it is entitled to recover for its loss under the appraisal clause in the policy. Shelter America cites the portion of the policy which states that if the parties “fail to agree on the amount of loss, either may demand an appraisal of the loss” and Shelter America argues that this appraisal clause does not contain a one-year provision. This argument is meritless. No appraisal was requested in the one-year period before the suit limitation ran. Further, the object of an appraisal would be to determine the amount of loss, and, contrary to Shelter America’s argument, any suit to collect any appraised amount would be barred by the same contractual limitation provision. See generally Yates v. Cotton States Mut. Ins. Co., 114 Ga. App. 360 (151 SE2d 523) (1966).

4. Finally, Shelter America claims that the policy is ambiguous because in addition to the provision regarding the one-year limitation period, there is another policy provision entitled “SUITS AGAINST US,” which does not contain the one-year limitation provision. We find this argument without merit. The section to which the policy limitation provision applies is the property loss section. The claim made by Shelter America clearly fell within this provision. The section which does not contain a one-year limitation period follows the liability section and plainly pertains to claims by a third party against the insured and is clearly labeled as such.

Decided June 28, 1993.

Thompson, O’Brien, Kemp & Nasuti, J. Patrick O’Brien, Bruce R. Steinfeld, for appellant.

Drew, Eckl & Farnham, Kenneth A. Hindman, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0067.
    McGEE v. THE STATE.
    (433 SE2d 374)
   Birdsong, Presiding Judge.

Ezra Lamont McGee appeals his convictions of two counts of armed robbery, three counts of possession of a firearm during the commission of a crime, and one count of kidnapping. McGee was also tried for one count of criminal attempt to commit armed robbery and another count of possession of a firearm during the commission of a crime, but was not convicted of these offenses. He contends the trial court erred by denying his motion to suppress evidence of a photographic lineup, the State failed to prove venue beyond a reasonable doubt as to three of the offenses, and the evidence was insufficient to sustain his convictions of certain offenses within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

The transcript shows a clerk at the Clothes Pin Laundry in Thomasville, Georgia, was robbed, and at trial identified McGee as the person who robbed her, and identified glasses, clothing, and a weapon taken from McGee after his arrest as being similar to those used or worn by the robber. Further, this witness testified that after she was presented with a group of photographs on two prior occasions, on the third occasion she identified McGee from his photograph as the person who robbed her.

Additionally, the clerk at the Pack ‘N Sack in Ochlocknee testified and also identified McGee as the man who robbed her, identified clothing and the gun taken from McGee as similar to the ones worn and used by the man who robbed her, and also authenticated the videotape taken of the robbery by the store’s security camera. This witness also testified that McGee took her at gunpoint to the store’s cold storage locker and forced her to remain inside.

Later, McGee went to a Circle K store in Thomasville with his accomplice; the accomplice went to the door of the Circle K with a pistol, but could not enter because the door was locked. Later McGee and his accomplice went to a service station that they planned to rob, but were apprehended by the police before they could do so.

After his arrest and having been warned of his rights, McGee made a statement concerning his participation in the crimes. Held:

1. McGee contends the trial court erred by denying his motion to suppress his out-of-court identification in a photo lineup. The test for determining whether a due process violation occurred in cases like this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401); McCoy v. State, supra. Considering these factors in light of the testimony of the victim of the robbery at the Clothes Pin Laundry and especially the closeness of the victim to McGee during the robbery, we conclude that under the “totality of the circumstances” (Neil v. Biggers, supra), the procedures used in this case were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. Nevertheless, assuming error in the admission of the identification through the photo lineup, we find any error harmless beyond a reasonable doubt in view of the overwhelming evidence of McGee’s guilt, including his confession to the crime. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869).

2. McGee’s second enumeration of error contends the State failed to prove venue beyond a reasonable doubt regarding the crimes of armed robbery, possession of a firearm during the commission of a crime, and kidnapping at an Ochlocknee, Georgia, convenience store. Generally, criminal trials shall be tried in the county where the crime was committed (Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a)), and venue is a jurisdictional fact that must be proven as part of the general case. Dempsey v. State, 52 Ga. App. 35 (182 SE 56). Additionally, although venue must be proven beyond a reasonable doubt (Adsitt v. State, 248 Ga. 237, 239 (282 SE2d 305)), if venue is not contested at trial, slight proof of venue will suffice. Green v. State, 260 Ga. 625, 626 (398 SE2d 360). Further, venue is an issue to be decided by the jury, and, if any evidence supports the jury’s decision, it will not be set aside. Jones v. State, 245 Ga. 592, 596 (266 SE2d 201). In this appeal, McGee did not contest venue in the trial court; a Thomas County sheriff’s deputy testified he was called to investigate a robbery at the Pack ‘N Sack at the intersection of Highway 19 and Highway 188 in Ochlocknee; McGee was taken to the Thomas County jail after he was apprehended; and the victim of the robbery testified that “this” happened in Thomas County, Georgia. Although the victim’s testimony that “this” happened could be interpreted as referring to something other than the crimes for which McGee was convicted, it was equally susceptible to being interpreted as these crimes. “Because no evidence conflicts with the conclusion that the crime [s were] committed in [Thomas] County, we find this evidence sufficient to establish venue in [Thomas] County.” (Citation and punctuation omitted.) Levitt v. State, 201 Ga. App. 63, 64 (410 SE2d 170).

Decided June 28, 1993.

Andrews & Seery, S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

3. McGee’s last enumeration contends the evidence is insufficient to sustain his convictions under Jackson v. Virginia, supra. On appeal, the presumption of innocence no longer avails and we view the evidence in a light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. [Cits.]” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0068.
    VASCHE v. HABERSHAM MARINA.
    (433 SE2d 671)
   Andrews, Judge.

Vasche sued Habersham Marina alleging the marina, located on Lake Lanier, negligently failed to prevent the theft of his boat, and fraudulently represented to him that the marina had security to prevent such theft when no such security existed. He appeals from the order of the trial court granting summary judgment in favor of the marina.

In May 1988, Vasche entered into a written agreement with the marina to rent dry storage space for his boat. The agreement also provided the terms under which the marina agreed to remove the boat from the storage space and launch and retrieve it from the marina’s dock facilities at the lake. The one-year rental agreement, which automatically renewed for successive one-year terms, was in effect in July 1990 when Vasche’s boat was allegedly stolen while docked overnight at the marina. The agreement provided that when a boat owner wished to have his boat retrieved from the lake and placed in storage, arrived at the dock after the marina launching and retrieval facilities were closed at 5:00 p.m., he should tie the boat to the dock, and write his name on a list indicating the boat was to be retrieved when the marina opened the following morning. Arriving after 5:00 p.m., Vasche followed this procedure, but his boat was stolen from the dock sometime before the marina re-opened the next morning. There was no evidence as to how the boat was taken from the marina.

1. The marina moved for summary judgment based on portions of the rental agreement providing that Vasche obtain insurance on the boat covering loss by theft, and providing that the marina would not be liable for such loss. The agreement provided: “The relation of the parties shall be that of landlord and tenant and the Lessor [marina] shall in no way be liable or responsible to Lessee [Vasche] for damage to or loss of the Boat and/or any tackle, gear, equipment or other property, including but not limited to any damages sustained from or at the dock located at the Marina, whether caused by fire, theft, storm, act of God, or any other cause whatsoever. Lessor is not an insurer of Lessee’s property, and Lessee should secure such insurance as he desires.” (Emphasis in original.) The rental agreement also required compliance with the rules and regulations of the marina, which further provided: “INSÜRANCE — Your boat should be fully covered by your insurance. The marina is insured for damages because of our negligence of [sic] fault while launching and retrieving your boat. The marina’s coverage does not include theft of personal property.” The agreement further provided that “Lessee . . . hereby releases and agrees to indemnify and hold harmless Lessor from any and all costs, expenses or liability for or loss or damage to the [boat] or the contents thereof due to fire, theft, collision, windstorm, accident or like causes.”

The agreement clearly provided that if the boat was lost or damaged as the result of theft, it was the intent of the parties to look solely to insurance purchased by Vasche to cover the loss. “ Tt has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.’ ” Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (262 SE2d 794) (1980). The additional provision in the agréement for insurance provided by the marina to cover damage caused by its negligence in launching and retrieving the boat clearly did not apply to theft of the boat from the dock, and creates no ambiguity. Compare Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330 (364 SE2d 84) (1987). Accordingly, Vasche cannot recover against the marina on a negligence claim for liability he had agreed to cover with insurance. Tuxedo Plumbing, supra at 29. The marina was entitled to summary judgment.

2. Citing Dilbeck v. Yates, 204 Ga. App. 370 (419 SE2d 154) (1992), Vasche argues summary judgment was inappropriate because he was fraudulently induced to keep his boat at the marina by oral misrepresentations that the marina had dock security. In Dilbeck, we found that “fraud in the inducement may be a viable defense to the enforceability of a leasehold contract which contains a provision absolving the lessor from liability to the lessee” where the lessee alleged he was “induced by oral misrepresentations to enter into the written contract in the first place.” Id. at 371. Vasche does not claim he was fraudulently induced to enter into the contract by some artifice which prevented him from knowing the contents of the agreement, including the insurance provisions. Rather, he claims that shortly before the theft of his boat in July 1990, two years after he entered into the contract, he was orally assured by the marina manager that the marina had dock security, and that he kept his boat at the marina dock in reliance on this assurance, which was an oral modification of the existing contract. Since evidence showed the marina did not have dock security when the boat was stolen, Vasche claims this was fraud precluding enforcement of the written agreement.

“ ‘The terms of a written contract may be modified or changed by a subsequent parol agreement between the parties, where such agreement is founded on a sufficient consideration.’ ” McIntyre v. Varner, 156 Ga. App. 529, 532 (275 SE2d 90) (1980); American Century Mtg. Investors v. Bankamerica Realty Investors, 246 Ga. 39, 41 (268 SE2d 609) (1980). We find no sufficient consideration to support such an agreement for oral modification, and even if the contract had been modified by an oral agreement to provide dock security, this would not have altered the existing provisions of the contract showing the intent of the parties to look solely to insurance purchased by Vasche to cover loss by theft.

Decided June 28, 1993.

England, Weaver & Kytle, James W. Kytle, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       The fraud claim was added in an amended complaint filed subsequent to the marina’s motion for summary judgment, but five months prior to the hearing and order issued on the motion. Although the motion did not address the subsequent fraud claim, it appears the pending fraud claim was considered sua sponte by the trial court in granting total summary judgment in favor of the marina. See Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (419 SE2d 143) (1992). Vasche does not claim he was denied a full and fair opportunity in the trial court to respond to the issues considered on summary judgment.

       Since the marina was entitled to summary judgment on the basis of the insurance clause, we need not address the contention that the agreement contained an unenforceable exculpatory clause violative of OCGA § 13-8-2 (b) by which the marina purported to disclaim liability for loss or damage for any cause. Whipper v. McLendon Movers, 188 Ga. App. 249, 251 (372 SE2d 820) (1988). Neither do we reach appellant’s additional contentions regarding negligence.


text:
    A93A0118.
    CLAY v. THE STATE.
    (433 SE2d 377)
   Andrews, Judge.

Clay was convicted of armed robbery, aggravated sodomy, aggravated assault, false imprisonment, and possession of a knife during the commission of a crime. He appeals.

Viewed in favor of the verdict, the evidence was that on November 29, 1989, the victim, at the time 19 years of age, took her 14-month-old daughter to a laundromat for the purpose of doing laundry. Upon her arrival at the. laundromat, she was assisted by Clay, who helped her carry in the large box of clothes. She had never met Clay prior to this and had only recently arrived in Gwinnett County. Having arrived around 4:00 p.m., the victim completed her laundry around 5:00 p.m. At that time there was no one in the laundromat except the victim, Clay and the baby. Clay grabbed her, rammed her head into a dryer, pulled a knife and forced her to remove her clothing. When she did not do this quickly enough, Clay ripped her blouse, ripped her bra off, and fondled her breasts.

Clay then told her to turn around and when she refused, he slapped her across the face. Additionally, Clay grabbed her from behind, put the knife to her throat and said “admit you’re a slut.” At that point Clay told her that if he committed an act of oral sodomy upon her, he would let her go. Additionally, Clay told her that if she did not do what he wanted, he would kill her and the baby. Having completed the act of oral sodomy, Clay forced her to lie down on the floor and kicked her twice in the vaginal area. Clay then demanded her money, which she turned oyer to him. At all times during these events, the victim could see the knife. Also, periodically during the encounter, Clay would run to the front of the laundromat, look out the window, and make sure that no one was in the area. Clay advised her to remain still and count to a certain number as he left the scene.

The victim ran to a store in the area, called police, and gave a description to officers. She said that the attacker was wearing blue pants, a shirt, a jacket, and a hat containing the word “woman” in a phrase. She further described him as having gray or black hair, a full beard, glasses and being about 40 years of age. Approximately five minutes after the attack, police took her to view a male in the area. Initially, from approximately 30 feet away, she indicated that he was the man. Upon getting closer, however, she stated that he was not. Shortly thereafter, police took her to see Clay, found about a half-mile from the laundromat. She did not hesitate in identifying Clay as her attacker. Clay was known to the officers since he frequented a local store and lunch counter where the officers ate. Because the description given by the victim fit Clay, Sergeant Eberhardt conducted the showup within 30 to 40 minutes after the assault. Because the sergeant was in an unmarked car not containing an enclosure for transporting prisoners, he requested a uniform unit. Officer Tinkey arrived and took custody of Clay. Clay consented to the search of his trailer and was transported there by Officer Tinkey. Sergeant Eberhardt and a lieutenant conducted the search, finding a dark blue hat bearing the following slogan, “I like my whiskey on ice, my women on fire.” Cash was found on the person of Clay as well as a pocketknife containing a blade “a fraction over three inches.” At the time of his arrest, Clay was wearing a different hat.

After the search, Officer Tinkey was directed to transport Clay to the station. At that point, Tinkey advised Clay concerning his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), rights. On the way to the station, Clay initiated conversation with Officer Tinkey, asking if he knew how to get in touch with Picosnic, a former police officer who had become a psychologist. Tinkey replied that he would help Clay out however he could. Tinkey testified that his reference was to getting Clay in touch with Picosnic and was not meant to indicate anything else. Officer Tinkey also acknowledged that he had included in his report on the incident his use of the following statement: “If you will shoot straight, I will try to help you out.” Clay then asked what kind of help the officer could provide. Clay told the officer that he had been to prison and did not want to go back. In response to this question, Officer Tinkey said that he could not make any promises, but that it was in Clay’s best interest to tell the truth. At this juncture, Clay asked to speak with Sergeant Eberhardt. Upon arriving at the station, Officer Tinkey advised Sergeant Eberhardt that if he would speak to Clay, Clay would admit what he had done. Because of required paper work, it was two to two- and-one-half hours after he arrived at the station before Sergeant Eberhardt ever spoke with him. Before interviewing Clay, Sergeant Eberhardt advised him again of his rights under Miranda. In addition to orally advising Clay, Sergeant Eberhardt provided him with a written advice of rights which Clay read. Clay initialed each specific right of which he was advised and signed the form. An interview was then conducted of Clay and videotaped. It lasted approximately 30 minutes. Although initially Clay repeatedly stated that he did not know or did not remember what had happened, he eventually acknowledged all of the acts set out above, except he did not acknowledge threatening the baby.

1. In his first enumeration Clay contends that the admission of his statement was improper because it was given after being induced by the hope of benefit. OCGA § 24-3-50.

Clay did not testify at the Jackson v. Denno hearing nor at the trial. Although the cases relied upon by Clay, including State v. Barber, 197 Ga. App. 353 (398 SE2d 419) (1990), deal with individuals of limited intelligence and the argument made below was that Clay was limited, there was no evidence presented in support of that contention. In fact, at the trial, a psychologist who had tested Clay gave the opinion that he was of basically normal intelligence although he tended to have odd or peculiar thought processes. Therefore, this contention of Clay is not supported by the record.

“For an officer to advise an accused that it is always best to tell the truth will not, without more, render a subsequent confession inadmissible under [OCGA § 24-3-50].” Tyler v. State, 247 Ga. 119, 122 (2) (274 SE2d 549) (1981). Likewise, the statement that “we’re here for you,” is not such a “hope of benefit,” as prohibited by that Code section. Kettman v. State, 257 Ga. 603, 607 (10) (362 SE2d 342) (1987).

Officer Tinkey’s offer to assist Clay in finding the psychologist likewise does not constitute the hope of benefit prohibited by the statute. Head v. State, 180 Ga. App. 901, 902 (1) (350 SE2d 854) (1986); see Newsome v. State, 189 Ga. App. 329, 331 (2) (375 SE2d 621) (1988).

“When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous.” Gibbs v. State, 235 Ga. 480, 483 (3) (220 SE2d 254) (1975). Likewise, factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous. Barber, supra at 354. There was no error.

Decided June 28, 1993.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

2. In his third enumeration, Clay contends he was denied a fair trial due to improper closing remarks by the prosecutor. While the record contains the objection made to the closing argument, the closing argument is not contained in the record. “Error must be shown affirmatively by the record, and not by mere recitations in a brief. [Cits.]” Standridge v. State, 196 Ga. App. 697, 698 (3) (396 SE2d 804) (1990). Having failed to so support his claim, nothing has been presented for our review.

3. The remaining two errors, numbers 2 and 4, deal with the issue of merger of offenses and will be addressed together.

Clay argues that the offenses of aggravated assault and armed robbery merged as a matter of fact. OCGA § 16-1-6 (a). The indictment alleges that the armed robbery occurred “by use of an offensive weapon ... a knife,” while the aggravated assault count alleges that Clay made an assault upon the person of the victim “with a knife, a deadly weapon, by holding said weapon to the throat of said victim.” As reflected in the statement of facts above, the use of the knife was not only aimed at obtaining money from the victim, but also at intimidating and threatening her with regard to the other acts committed. Here, as in Bales v. State, 200 Ga. App. 97 (406 SE2d 790) (1991), the victim testified to several different, although sequential, acts performed by Clay against her person. There was no merger.

“Likewise, the offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery [and aggravated assault] so that the defendant can be convicted of both without statutory or constitutional prohibition. Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982).” Brown v. State, 199 Ga. App. 773, 774 (406 SE2d 248) (1991).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Compare Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989) in which the only use-of the offensive weapon was during the obtaining of the funds, thereby factually merging any aggravated assault with the robbery.