author: Beasley, Chief Judge.

text:
    A95A0412.
    COLUMBUS ANESTHESIA GROUP, P. C. v. KUTZNER.
    (459 SE2d 422)
   Beasley, Chief Judge.

Kenneth Barngrover, M. D., Columbus Anesthesia Group, P. C. (CAG) and Dr. Robert Kutzner agreed that Dr. Kutzner would become an equal member in CAG upon his obtaining a Georgia medical license and privileges at Doctors Hospital. The terms and conditions of Kutzner’s membership in the professional corporation are set out in an “Anesthesiology Agreement” executed on May 14, 1993. The contract specifies Kutzner’s benefits as an equal member (25 percent interest); states the parties’ intent that Barngrover and Kutzner will form a separate Georgia corporation to be called Southeast Regional Pain Center (SERP); establishes the parameters of Kutzner’s medical practice as an anesthesiologist with certain hours on call at Doctors Hospital; and allocates the physicians’ respective interests and responsibilities when SERP is fully operational.

The agreement further provides that an aggrieved party may terminate the relationship for reasonable cause including breach of any provision, calls for a 15-day “cure” period and “independent verification” of alleged breaches, and states that upon written request, a “further dispute” shall be submitted to binding arbitration according to the rules of the American Arbitration Association (AAA). On April 8, 1994, Dr. Kutzner filed a demand for arbitration. The trial court denied CAG’s motion to stay arbitration proceedings (OCGA §§ 9-9-2 (c) (9) and 9-9-6 (b) (1)), apparently concluding that the Federal Arbitration Act (9 USC § 2) preempts application of the Georgia Arbitration Code.

CAG contends the trial court erred in that the non-initialed arbitration provision in Kutzner’s employment contract is unenforceable under the Georgia Arbitration Code (OCGA § 9-9-1 et seq.). Kutzner, on the other hand, maintains (a) the Federal Arbitration Act applies to preempt the more restrictive provisions of the Georgia Arbitration Code, because performance of the agreement involved interstate commerce as contemplated under the federal act; and (b) the agreement is not an employment contract.

1. We must initially determine whether the federal act preempts the application of state law here. Under the federal act, “[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof,. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis supplied.) 9 USC § 2. The Supreme Court recently noted that the federal act “seeks broadly to overcome judicial hostility to arbitration agreements and applies in both state and federal courts[.]” Allied-Bruce Terminix &c. v. Dobson, 513 U. S. - (115 SC 834, 130 LE2d 753) (1995). If the agreement involves interstate commerce, the federal law applies to enforce its arbitration provision. Southland Corp. v. Keating, 465 U. S. 1 (104 SC 852, 79 LE2d 1) (1984); West Point-Pepperell v. Multi-Line Indus., 231 Ga. 329 (201 SE2d 452) (1973).

The agreement brings Dr. Kutzner into CAG as an equal member, establishes the parameters of his practice as an anesthesiologist at Doctors Hospital, and states the parties’ intent to form a second, separate Georgia corporation to operate a regional pain center in Columbus. In support of his position that the federal act applies, Dr. Kutzner relies upon decisions involving construction contracts such as ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223 (1) (338 SE2d 733) (1985). It held that interstate commerce was involved in a contract to construct an apartment complex because the general contractor used subcontractors and employees from other states and incorporated construction materials purchased outside the state. Dr. Kutzner argues that his agreement similarly involves interstate commerce because CAG recruited him to move from Indiana to Georgia, and under the agreement he was to contribute computers, software and medical equipment manufactured outside Georgia to the new corporate regional pain center. Dr. Kutzner also points to the Supreme Court’s recent decision that the phrase “involving commerce” in the context of the federal act is “the functional equivalent of the phrase ‘affecting commerce,’ which normally signals Congress’ intent to exercise its commerce power to the full[.] [Cit.]” Allied-Bruce Terminix &c. v. Dobson, supra. The Court held the federal act applies to enforce arbitration provisions in agreements evidencing transactions affecting commerce even if the parties did not contemplate an interstate commerce connection.

Nevertheless, we are not persuaded that the federal act applies. The contract establishes the terms of Dr. Kutzner’s membership in a Georgia professional corporation providing medical services in Georgia. Performance of the parties’ agreement to form a second professional corporation, unlike execution of a construction contract using out-of-state labor and materials, does not involve equipment manufactured outside Georgia. Instead, Dr. Kutzner merely agreed to transfer ownership of such equipment to the new corporate entity. Contribution of equipment to a professional corporation after its formation does not affect interstate commerce within the meaning of the federal act. See Rhodes v. Inland-Rome, 195 Ga. App. 39 (392 SE2d 270) (1990) (Timber cutting contract between Georgia parties to be performed solely within Georgia does not relate to the subsequent sale of the timber out of state.) That Dr. Kutzner resided in Indiana when he negotiated the terms of the agreement and moved to Georgia for its performance is similarly insufficient to involve interstate commerce. See Bernhardt v. Polygraphic Co. of America, 350 U. S. 198, 200-201 (76 SC 273, 100 LE 199) (1956); accord Allied Bruce Terminix &c. v. Dobson, supra; compare DiMambro-Northend Assoc. v. Blanck-Alvarez, Inc., 251 Ga. 704 (309 SE2d 364) (1983).

2. Under OCGA § 9-9-2 (c) (9), the Georgia Arbitration Code does not apply to “[a]ny contract relating to terms and conditions of employment unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement.” The Agreement sets forth the terms of Dr. Kutzner’s membership in CAG (25 percent interest) and the contemplated SERP (51 percent interest); his base salary, bonuses and benefits; and the hours to be devoted to CAG duties during the development of Dr. Kutzner’s SERP practice and when that practice became full-time. Thus, while it establishes his ownership interests in the professional corporations, the agreement relates to the terms and conditions of Dr. Kutzner’s employment by CAG, which renders the arbitration provision unenforceable under the Georgia Arbitration Code.

Decided May 15, 1995

Reconsideration denied July 20, 1995

James D. Patrick, Jr., for appellant.

Vaughan & Murphy, Charles C. Murphy, Jr., for appellee.

Thus, the trial court erred in denying CAG’s petition for a stay of arbitration.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A0509.
    AMERICAN TRANSPORT, INC. v. THOMPSON.
    (460 SE2d 298)
   Ruffin, Judge.

We granted American Transport, Inc.’s application for interlocutory appeal to determine whether the trial court erroneously denied its motion to dismiss for Lena Sue Thompson’s failure to name or serve American Transport as a defendant within the statute of limitation.

On October 27, 1993, Thompson filed an action against American Transport, Inc., a Michigan corporation, for injuries she sustained in an automobile accident on November 10, 1991. In its answer to the complaint, filed December 6, 1993, American Transport indicated it was not a proper party to the lawsuit because it was not in business on the date of the accident nor was the alleged driver of the vehicle which caused Thompson’s injuries ever its employee. Thompson’s attorney subsequently learned that a separate and distinct Pennsylvania corporation bearing the same name was the proper defendant. On December 10, 1993, Thompson moved the court to amend her complaint, adding the Pennsylvania American Transport, Inc., as a party defendant and deleting all references to the Michigan corporation. The trial court granted the motion to amend, and the Pennsylvania American Transport was served on December 23, 1993.

The Pennsylvania American Transport asserted the two-year statute of limitation as a defense in its answer and moved to dismiss the action on that ground. In support of its motion, American Transport submitted affidavits from two employees to whom claims against the company are directed. They averred that they first received notice of Thompson’s claim on or about December 13, 1993, upon receipt of the complaint and summons and that prior to that date they had no knowledge of Thompson’s claim. In its motion, American Transport argued that the strict requirements of OCGA § 9-11-15 (c) were not satisfied when the complaint was amended to add American Transport as a party defendant because it was not named in the original complaint and had no knowledge or reason to know that an action had been commenced which, but for a mistake of identity, would have been brought against it. Thus, the amended complaint, filed after the statute of limitation expired, did not relate back to the original complaint and was time-barred.

Denying the motion to dismiss, the trial court distinguished the instant case from the numerous cases applying OCGA § 9-11-15 (c) on the ground that in those cases, the plaintiff sought to amend his complaint after the statute of limitation expired to sue a defendant with a different name than the defendant sued before the statute of limitation expired. The court held that in the instant case, Thompson did not erroneously sue a defendant with the name “American Transport Inc.” Rather, she described the wrong American Transport Inc. in her complaint and served the wrong American Transport Inc. within the statute of limitation. Thus, OCGA § 9-11-15 (c) was not applicable. The court then referenced certain evidence which purportedly showed that two days after receiving the Michigan American Transport’s answer and discovering it was the wrong company, Thompson’s attorney obtained the Pennsylvania company’s address from its insurer and diligently served that company six days later with the amended complaint. Based on this evidence, the trial court concluded that the complaint should not be dismissed because Thompson exercised due diligence in perfecting service after the statute of limitation expired.

American Transport contends that diligent service is not at issue here because Thompson named the wrong defendant in her original complaint; it was not properly named as a defendant until after the statute of limitation expired; and the requirements of OCGA § 9-11-15 (c) were not met. We agree.

The evidence is undisputed that, despite sharing the same name, American Transport is a separate and distinct entity from the Michigan corporation. Thus, it is apparent that Thompson named and served the wrong corporation in her original complaint. “A plaintiff who has sued the wrong defendant may move to amend her pleading after the statute of limitation has run and that amendment will relate back to the time of the original pleading if the proper defendant has received actual notice and knew or should have known that, but for [the] plaintiff’s mistake, it would have been the party sued. OCGA § 9-11-15 (a), (c).” Ciprotti v. United Inns, 209 Ga. App. 457, 458-459 (433 SE2d 585) (1993). American Transport had the burden of demonstrating that at least one of the requirements of OCGA § 9-11-15 (c) was not satisfied. Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326 (436 SE2d 63) (1993). The affidavits submitted by American Transport stated the company was unaware of and had no notice of Thompson’s action until it was served with the amended complaint. See OCGA § 9-11-15 (c) (1). The burden then shifted to Thompson to show that the statute’s requirements were met. Id. Although Thompson made many unsubstantiated allegations in her appellate brief regarding American Transport’s knowledge of her claim, she produced no evidence which contradicted the affidavits. For example, she alleged that American Transport’s insurer contacted her attorney and was negotiating a settlement on American Transport’s behalf. While the record contains correspondence between Thompson’s attorney and an insurer for an “American Transport,” there is no evidence that the insurer was the Pennsylvania American Transport’s insurer or that the Pennsylvania American Transport was aware of the negotiations. In fact, other evidence sheds doubt on Thompson’s allegation as it appears that when the insurer was asked for the home address of its insured, the insurer gave a Wierton, West Virginia, address. Whether or not that representation constituted concealment which prevented her from learning the identity of the real defendant, as Thompson also alleges with no evidentiary basis, is irrelevant inasmuch as “the burden is on the plaintiff to investigate and learn where the defendant may be located.” (Citations and punctuation omitted.) Jones v. Brown, 174 Ga. App. 632, 634 (331 SE2d 24) (1985). American Transport having demonstrated that one of the elements of OCGA § 9-11-15 (c) was not satisfied, the relation-back provisions do not apply. Doyle, supra. Accordingly, Thompson’s amended complaint was barred by the statute of limitation, and the trial court erred in denying American Transport’s motion to dismiss.

Decided June 12, 1995

Reconsideration denied July 20, 1995.

Whelchel, Dunlap & Gignilliat, John F. Kennedy, Thomas S. Bishop, for appellant.

John H. Bedford, for appellee.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A95A0641.
    CITY FOOD MART, INC. et al. v. BELL ATLANTIC TRICON LEASING CORPORATION.
    (460 SE2d 525)
   Andrews, Judge.

Bell Atlantic Tricon Leasing Corporation (“Bell Atlantic”) sued City Food Mart, Inc. (“City Food”) and Young Nelson for default on a lease of printing equipment. The trial court granted Bell Atlantic’s motion for summary judgment. City Food and Nelson appeal.

On December 13, 1991, Young Nelson executed a lease in her capacity as president of City Food Mart for five items of printing equipment. Nelson also executed a personal guaranty of the contract. The printing equipment was delivered to Mr. Kim who operated a print shop in DeKalb County.

Although Kim told Nelson that he would make the payments on the equipment, he did not do so and also refused to release the equipment to Nelson. Nelson made some of the lease payments on the equipment during this time.

In August 1992, Nelson sued Kim in the State Court of DeKalb County to recover the equipment. Kim answered and counterclaimed. Also during August, Bell Atlantic requested that Nelson return the equipment.

Nelson and Kim settled their suit by agreeing that each would dismiss their claims and Kim would allow Bell Atlantic to pick up the printing equipment. In September 1992, Nelson told Bell Atlantic to pick up the equipment from Kim. Nelson also states that she told Bell Atlantic to pick up the equipment and sell it as soon as possible. Bell Atlantic picked up the equipment several months later but did not re-lease or sell it.

Bell Atlantic sued Nelson and City Food for the 37 payments remaining under the 48-month lease. The trial court granted Bell Atlantic’s motion for summary judgment and ordered Nelson and City Food to pay $23,547.45 for the amount past due through June 1994, $17,295.14, the present value of the payments falling due after June 1994, $4,305.19 prejudgment interest, $2,072.40 state sales tax, $2,131.61 late charges, $125 property tax, and $6,772.17 attorney fees.

City Food Mart and Young Nelson appealed, bringing the following enumerations of error.

1. In their first enumeration of error, City Food Mart and Nelson contend that the contract was not a lease but rather a security interest which is subject to the requirements of Article 9 of the Uniform Commercial Code. They argue that Bell Atlantic was not in the business of leasing this type of equipment, although nowhere in the record is there any evidence to support this assertion. Further, appellants contend that because the contract obligated the lessee to pay for all taxes, insurance, and expenses of repairs and allowed Bell Atlantic to retain the equipment after it was returned, it was in reality a security agreement and not a lease.

“The prime essential distinction between a lease and a conditional sale is that in a lease the lessee never owns the property.” First Nat. Bank of Cobb County v. Atlanta Classic Cars, 184 Ga. App. 784, 786 (363 SE2d 16) (1987) (quoting Ford v. Rollins Protective Svcs. Co., 171 Ga. App. 882, 884 (322 SE2d 62) (1984)). “In the absence of a right or option in the lessee to acquire ownership of the leased property, the transaction is one of lease.” Ford, supra at 884 (quoting In re Atlanta Times, 259 FSupp. 820, 827 (N.D. Ga. 1966), aff'd sub nom. Sanders v. Nat. Acceptance Co., 383 F2d 606 (5th Cir. 1967)).

There is no evidence in the record and City Food and Nelson do not contend that there was any agreement or intent on the part of either party that they would purchase the printing equipment. Therefore, we find this enumeration of error to be without merit.

2. Next, City Food and Nelson claim that the measure of damages applied by the trial court resulted in the enforcement of a penalty. Appellants state that the factor which makes the charges a penalty is the fact that Bell Atlantic retained the equipment and failed to re-lease or sell it. But, the lease specifically states that the lessor is not obligated to sell the equipment in the event the lessee defaults. When the lease specifically provides that the lessor is under no obligation to sell or re-lease the equipment, the parties’ conduct is governed by the terms of the lease and Bell Atlantic was not required to mitigate its damages by selling or re-leasing the equipment. See Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 421 (364 SE2d 65) (1987).

Also, the award of attorney fees, sales tax and property tax was for actual damages incurred and, therefore, does not constitute a penalty. These were charges paid by Bell Atlantic for which appellants agreed, in paragraph 9 of the lease, to be responsible.

3. Third, City Food and Nelson argue that the trial court erred in granting summary judgment when Bell Atlantic failed to pierce their defenses of waiver, estoppel and usury. They claim that Bell Atlantic’s statement that the equipment would be picked up immediately when in fact the equipment was not picked up until several months later and was not sold or re-let, amounts to promissory estoppel or waiver. But, appellants do not contend, and the record does not show, that Bell Atlantic promised them that it would sell or re-lease the equipment. Further, as previously discussed, the lease specifically provided that Bell Atlantic was under no obligation to sell or re-lease the equipment.

Appellants’ claim of usury is also without merit. Bell Atlantic paid over $40,000 for the equipment and the lease provided for total payments over four years in the amount of $53,848.80. Therefore, the lease itself was not usurious. Neither was the lease used as a means of collecting usurious interest in the event of default. As previously discussed, the portion of the award for sales tax, property tax and attorney fees was for actual damages and, therefore, not a penalty. Also, as previously discussed, Bell Atlantic was not required to mitigate its damages and was entitled to retain the equipment without selling or re-leasing it.

Decided June 27, 1995

Reconsideration denied July 20, 1995

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellants.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, Gary D. Stokes, Stuart F. Clayton, Jr., for appellee.

4. Next, appellants claim that by not promptly re-taking the equipment and selling or re-leasing it, Bell Atlantic unreasonably impaired the collateral, thus releasing Nelson from her guaranty. Even assuming, arguendo, that the equipment was collateral, Nelson waived her right to liquidation in satisfaction of any damages. Paragraph 8 of the lease provides that lease payments are to be made regardless of any damage or loss to the equipment. When consent is given in advance to impairment of the collateral, no consideration is required and the consenting party waives the right to claim his own discharge. Griswold v. Whetsell, 157 Ga. App. 800, 803 (278 SE2d 753) (1981).

5. Last, appellants claim that there was an ambiguity in the terms of the contract in that the number of months in the term of the lease agreement is not legible. However, the lease signed by Young Nelson clearly shows that there will be 48 monthly payments of $1,121.85. This enumeration of error is without merit.

For the reasons outlined above, the trial court did not err in granting Bell’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A0652.
    CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY v. OKONKWO.
    (460 SE2d 302)
   Andrews, Judge.

We granted the application of Cambridge Mutual Fire Insurance Company (Cambridge) to appeal the denial of its motion for summary judgment regarding Okonkwo’s (the insured) claim under a homeowner’s policy issued by Cambridge. We reverse.

Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), and viewing the facts with all inferences in favor of the insured, the undisputed facts were that the policy involved was issued on February 22, 1993, and that policy provided in Section 8 that “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." (Emphasis supplied.) This is the paragraph upon which Cambridge premised its motion for summary judgment.

Section 10 states, in pertinent part, that “[l]oss will be payable 60 days after we receive your proof of loss and: a. reach an agreement with you; b. there is an entry of a final judgment; or c. there is a filing of an appraisal award with us.” This paragraph is relied upon by the insured for his argument that, at a minimum, the beginning of the year referred to in Section 8 does not begin until after the expiration of this 60 days.

The insured contacted his agent shortly after the burglary of his home which he alleged occurred on February 24,1993, while he was at work. Cambridge acknowledges that it had notice of the claim and that the insured supplied a proof of loss and some receipts regarding valuation of the insured items. The insured filed one proof of loss which was misplaced by Cambridge.

On July 7, 1993, Cambridge’s agent received a call from the insured complaining about the delay in processing his claim. In response, the insured was given the name of Wilson, the in-house claims adjuster of Cambridge, and his phone number. Thereafter, on August 25, 1993, the local claims adjuster for Cambridge forwarded a letter and second proof of loss form to the insured. That letter stated that “[t]he furnishing of these blank forms and the sending of this letter is [sic] not to be construed as a waiver of the provisions of the contract or as an admission or denial of liability thereunder.”

On September 1, 1993, the insured forwarded to Cambridge a second proof of loss form, claiming a loss of $9,454.45. On September 22, 1993, the attorney for Cambridge notified the insured that an examination under oath was required regarding the theft and valuation of the items taken. The insured responded the next day and that examination was conducted by the attorney on September 30, 1993. On October 20, 1993, Cambridge claims examiner Wilson sent the insured a letter stating in pertinent part that it was “the conclusion of the Company, based upon its investigation, that you have materially misrepresented facts and circumstances concerning your loss in an attempt to wrongfully obtain insurance proceeds. This is a violation of your insurance policy which renders it void. However, in hopes that that event might be avoided as well as expensive litigation, I have been authorized to offer you $2,500 in full settlement of all claims under this policy. This offer will remain open for fifteen (15) days from the date of this letter. ... If the settlement is not accepted, your policy will be void as of that date. Thereafter, if you elect to proceed any further with legal action, you should do so in strict accordance with the terms of the policy and the law of the State of Georgia. ...” (Emphasis supplied.)

Suit was not filed until April 28, 1994.

The trial court concluded, without further elaboration, that material questions of fact remained, precluding summary judgment.

1. This court considers de novo the entire record before it on review of denial of a motion for summary judgment in order to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and movant Cambridge was entitled to summary judgment as a matter of law. Brandon v. Mayfield, 215 Ga. App. 735, 737 (1) (452 SE2d 181) (1994).

2. “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 suit to be brought in a certain time.” ’ Giles v. Nationwide &c. Ins. Co., 199 Ga. App. 483, 485 (1) (405 SE2d 112) (1991).” Shelter America Corp. v. Ga. Farm Bureau &c. Ins. Co., 209 Ga. App. 258, 259 (1) (433 SE2d 140) (1993). On the other hand, merely negotiating for a possible settlement of a disputed claim which is unsuccessfully accomplished is not conduct designed to lull the claimant into a false sense of security and does not preclude an assertion of the contractual one-year provision by the insurer. E.g., id.; Suntrust Mtg. v. Ga. Farm &c. Ins. Co., 203 Ga. App. 40, 41 (416 SE2d 322) (1992); Giles, supra at 485 (3); Holland v. Independent Fire Ins. Co., 168 Ga. App. 761 (1) (310 SE2d 297) (1983); Aiken v. Northwestern Mut. Ins. Co., 106 Ga. App. 220, 223 (126 SE2d 630) (1962).

Although the insured contended below that the negotiations by Cambridge somehow tolled the one-year period for bringing suit, the only facts brought forward on the motion for summary judgment showed a continuing investigation by Cambridge, even if some errors were made such as losing the proof of claim. The insured was aware after the October 20, 1993, letter, four months before the expiration of the one-year period for suit, that Cambridge disputed the claim, contended he had made misrepresentations which voided the policy, and offered to settle the disputed claim for $2,500, which offer remained open only for 15 days. There was no conduct from which waiver could have been deduced.

Decided June 26, 1995

Reconsideration denied July 20, 1995

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Daniel R. Ketchum II, for appellant.

Stefano A. Didio, for appellee.

3. To the extent that the insured argues that sixty days should be appended to the one-year period, this argument is likewise unavailing. Suntrust, supra at 42.

Therefore, Cambridge was entitled to summary judgment.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       The insured’s reliance on non-binding federal authority, Nicholson v. Nationwide Mut.

        Fire Ins. Co., 517 FSupp. 1046 (N.D. Ga. 1981) is also unavailing. See Glass Elec. Co. v. Commercial Union Ins. Co., 711 FSupp. 615, 616 (1) (N.D. Ga. 1988) and Broadfoot v. Reliance Ins. Co., 601 FSupp. 87, 89 (N.D. Ga. 1984), which follow established Georgia precedent and hold such clauses binding.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A0067.
    FENDER et al. v. ADAMS EXTERMINATORS, INC.
    (460 SE2d 528)
   Andrews, Judge.

Fender and Gordon sued Adams Exterminators, Inc., alleging that they suffered injuries as a result of Adams Exterminators’ negligent application of a pesticide. In its answer, Adams Exterminators raised the defense that the plaintiffs failed to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1. The trial court subsequently granted Adams Exterminators’ motion for dismissal on the basis that the complaint alleged professional malpractice and was unsupported by the required expert affidavit. Fender and Gordon appeal from the order dismissing the complaint.

1. The complaint in this case alleging the negligent application of a pesticide by a corporation required to be licensed by the State Structural Pest Control Commission is a professional malpractice action which requires the contemporaneous filing of an expert affidavit pursuant to OCGA § 9-11-9.1. See Colston v. Fred’s Pest Control, 210 Ga. App. 362 (436 SE2d 23) (1993) (physical precedent); OCGA § 43-45-1 et seq.

OCGA § 9-11-9.1 requires that an expert affidavit be filed with a complaint stating an “action for damages alleging professional malpractice.” In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197) (1992), the Supreme Court concluded that: “[T]he legislature intended for the term ‘professional’ as used in OCGA § 9-11-9.1 to be defined by OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24. We hold, therefore, that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-1-24.” Under OCGA § 14-10-2 (2), “ ‘[professional service’ means the personal services rendered by attorneys at law and any type of professional service which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43.” (Emphasis supplied.) Chapter 45 of OCGA Title 43 sets forth the provisions of the Structural Pest Control Act, which clearly provides that the type of professional services performed by Adams Exterminating in this case must be licensed by the applicable state examining board. See OCGA § 43-45-24, requiring a license issued by the State Structural Pest Control Commission and OCGA § 43-1-1, including the commission within the definition of “state examining board.” Accordingly, Gillis, supra, made clear that the complaint against Adams Exterminators was a professional malpractice action within the meaning of OCGA § 9-11-9.1.

2. Nevertheless, the plaintiffs contend that when they filed their complaint, no case had been decided specifically applying the expert affidavit requirement to exterminators, and the trial court erred by refusing to allow them to amend the complaint to add an expert affidavit. In dismissing the complaint, the trial court ruled that “it [was] reasonable to conclude that, after [the decision in] Gillis, supra, the affidavit requirement applied to exterminators.” We agree.

In the usual case, a court applies existing law to resolve the issues before it, and there is no question that the decision applies to the parties in the case. Only where a decision “established] a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed” does an issue arise as to whether or not the decision should be retroactively applied to the parties. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983). Retroactive application of judicial decisions is the usual rule in all civil cases. General Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546 (340 SE2d 586) (1986). A law-changing decision, however, will generally be applied prospectively under the test adopted in Flewellen, supra, where the decision establishes a new principle of law and prospective application would avoid causing “injustice or hardship” to those who justifiably relied on the prior law, without unduly undermining the “purpose and effect” of the new rule. Rasmussen, supra; see Harper v. Va. Dept. of Taxation, 509 U. S. __ (113 SC 2510, 125 LE2d 74, 84-85) (1993).

Under this test, it is not unfair to apply the decision in this case to the parties and uphold the dismissal of the complaint for lack of an expert affidavit. No past precedent was overruled, and the application of the expert affidavit requirement to the professional services rendered by Adams Exterminators was clearly foreshadowed by the decision of the Supreme Court in Gillis, supra. This case simply applies the clearly enunciated expert affidavit requirements in Gillis, supra, to the facts before the court. In fact, we reached the same conclusion on similar facts in Colston, supra, an opinion rendered after the complaint in this case was filed.

The plaintiffs’ reliance on Lutz v. Foran, 262 Ga. 819, 824 (427 SE2d 248) (1993), to support the argument that it would be unfair not to allow them to amend the complaint to add an expert affidavit is misplaced. In Lutz, the first appellate case applying the expert affidavit requirement to harbor pilots, the Supreme Court concluded that harbor pilots are professionals within the meaning of OCGA § 9-11-9.1 because they are listed as a profession in OCGA § 14-7-2 (2), one of the Code sections set forth in Gillis, supra. But the Court decided that, since Gillis, supra, had not been decided when Lutz filed his complaint, it would be unfair to apply the decision to the parties when the plaintiff “did not have the benefit of our decision in Gillis v. Goodgame delineating the professionals against whom an expert affidavit must be filed in a malpractice action.” Lutz, supra at 824. Since the complaint in this case was filed over a year after the decision in Gillis, supra, and the decision in this case was clearly foreshadowed by the decision in Gillis, supra, it was not unfair for the trial court to apply the expert affidavit requirement to the parties and dismiss the complaint.

Judgment affirmed.

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

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully agree with Division 1 of the majority opinion that, the present state of the law requires the contemporaneous filing of an OCGA § 9-11-9.1 expert’s affidavit in a tort action alleging the negligent application of pesticides. I respectfully dissent from Division 2 and from the judgment of affirmance, as it is my view that the trial court erred in denying plaintiffs an opportunity to amend the procedural error in failing to file such an OCGA § 9-11-9.1 expert’s affidavit in the case sub judice. No binding precedent from this Court required such contemporaneous filing at the time this action was commenced. In my view, the majority opinion fails to apply the latest consideration of this question by the Supreme Court of Georgia, Harrell v. Lusk, 263 Ga. 895 (439 SE2d 896). In so doing, the majority demands of plaintiffs’ counsel a prescience hitherto unexpected of mortal practitioners of the law. Plaintiffs contend the trial court erred in denying them “leave to amend their Complaint to attach an affidavit . . . when the question of whether a negligence action against an exterminator was subject to the affidavit requirement had not been decided at the time [plaintiffs] filed their Complaint.” I agree.

In Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197), the Georgia Supreme Court held “that the affidavit requirements of [OCGA] § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2), and 43-l-24[, citing] Justice Weltner’s special concurrence to Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499 (397 SE2d 294) (1990).” By its terms, OCGA § 43-1-24 refers only to those persons “licensed by a state examining board and who [practice] a ‘profession,’ as defined in Chapter 7 of Title 14, the ‘Georgia Professional Corporation Act,’ or who renders ‘professional services,’ as defined in Chapter 10 of Title 14, ‘The Professional Association Act[.]’ ” (Emphasis supplied.) The professions enumerated at OCGA § 14-7-2 (2), as recited by Justice Weltner in his special concurrence are: “certified public accountancy, architecture, chiropractic, dentistry, professional engineering, land surveying, law, psychology, medicine and surgery, optometry, osteopathy, podiatry, veterinary medicine, registered professional nursing, or harbor piloting.”

Colston v. Fred’s Pest Control, 210 Ga. App. 362 (436 SE2d 23), which first applied OCGA § 9-11-9.1 to actions against exterminators, was not decided by this Court until September 1, 1993. This was six months after the filing of the complaint in the case sub judice, and even then-was, under Court of Appeals Rule 35 (b), now Rule 33 (a), “a physical precedent only.” As recently as March 11, 1994, the Supreme Court of Georgia found it necessary to augment the list of professions as set forth in Gillis v. Goodgame, 262 Ga. 117, supra, and at the same time draw a distinction “between those occupations included in Title 43 where licensure involves merely registration . . . and those occupations where licensure is conditioned upon the state examining board’s determination that the applicant successfully completed the schooling and/or training upon which licensure is statutorily preconditioned.” Harrell v. Lusk, 263 Ga. 895, 896, fn. 2, supra. It is my view that, the majority court errs in concluding that reference to OCGA § 43-1-24 was sufficient to place potential plaintiffs and their counsel on notice that exterminating services constitute a profession such as to invoke the pleading requirements of OCGA § 9-11-9.1. “[Although ordinarily this Court would rule that [plaintiffs’ original] complaint, filed withfout] the affidavit of a licensed [exterminator], should be dismissed with prejudice pursuant to OCGA § 9-11-9.1 (f), that result would be unfair in this case. As in Lutz v. Foran, 262 Ga. 819 (4) (427 SE2d 248) (1993), this is an instance in which it was unclear at the time [plaintiffs] filed [their] initial suit [on March 16, 1993,] whether OCGA § 9-11-9.1 applied to claims [the gravamen of which was] malpractice against [exterminators]. Thus, it would be manifestly unfair to apply OCGA § 9-11-9.1 (f) to the case at bar. [Cit.]” Harrell v. Lusk, 263 Ga. 895, 898, supra. In my view, the judgment in the case sub judice should be reversed and the case remanded to the trial court with direction to reinstate plaintiffs’ complaint upon filing of an expert’s affidavit as required by OCGA § 9-11-9.1 within a reasonable time from the date of judgment. As the majority would affirm, I respectfully dissent in part.

Decided June 29, 1995

Reconsideration denied July 24, 1995

Custer & Custer, Cawthon H Custer, Black & Black, Eugene C. Black, Jr., Lewis R. Lamb, for appellants.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, for appellee.

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


author: Johnson, Judge.

text:
    A95A0518, A95A0519.
    JOHNSON v. SAVANNAH COLLEGE OF ART & DESIGN, INC.; and vice versa.
    (460 SE2d 308)
   Johnson, Judge.

Christopher Johnson was hired by the Savannah College of Art & Design, Inc. (the college), as a non-tenured professor in the school’s video department. During his second one-year contract, Johnson’s relationship with the other four faculty members of the video department disintegrated to the point that those four members asked the college’s administration to transfer Johnson out of their department. The administration complied with the request, reassigning Johnson, with no reduction in salary, to Video Works, the college’s ancillary video production unit. When Johnson complained that he wanted to teach, the administration offered to arrange for him to be a visiting teacher in the Chatham County public school system in conjunction with his position at Video Works. Johnson refused these assignments. Taking the position he had been constructively fired, he brought suit against the college, claiming breach of contract and seeking damages for intentional infliction of emotional distress. The college moved for summary judgment on both claims, and Johnson responded by moving for partial summary judgment on the breach of contract claim. The trial court granted the college’s summary judgment motion on the intentional infliction of emotional distress claim, denied its motion on the breach of contract claim, and granted Johnson’s motion on the contract claim. Johnson appeals from the grant of summary judgment to the college on the emotional distress claim. The college appeals from the denial of its motion for summary judgment, and the grant of Johnson’s motion for summary judgment, on the breach of contract claim.

Case No. A95A0518

Four elements must be present to support a claim of intentional infliction of emotional distress: (1) The conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Clark v. Arras, 212 Ga. App. 695, 696 (2) (443 SE2d 277) (1994). Johnson contends that at various times he felt betrayed, belittled, maligned, humiliated, and saddened. Yet none of the allegations contained in the 48 paragraph affidavit submitted by Johnson in opposition to the college’s motion for summary judgment is of the sort which would arouse the resentment of an average member of the community and cause him to exclaim “Outrageous!” See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.j” Id. The trial court did not err in granting the college’s motion for summary judgment on the issue of intentional infliction of emotional harm.

Case No. A95A0519

We do not, however, agree with the trial court’s conclusion that the college breached its contract with Johnson. The portion of the contract upon which the college relies provides: “By accepting this appointment and accompanying compensation, you commit to devote your full time for the period specified above to teaching, and/or service to the college, in conformity with the policy of the college. . . .” This provision recognizes that flexibility is necessary in the effective administration of a college. In a factually similar case, this court held: “The plaintiff was not terminated nor discharged nor removed from employment by the college, although [he] was assigned a position different from that in which [he] had served in the past. ... In order for an organization as complex as a modern college to function properly, the administrator must be able to reassign people to various jobs. . . . The uncontradicted evidence discloses that plaintiff’s separation from the college resulted from [his] refusal to perform the duties of [his] new assignment rather than from any breach of contract on the part of the college.” Morris Brown College v. Walker, 155 Ga. App. 236, 237-238 (270 SE2d 464) (1980).

The new position offered to Johnson would not force him to work under conditions so intolerable as to compel his resignation. Therefore we do not agree with the trial court’s characterization of Johnson’s reassignment as a demotion from faculty to staff, entitling him to judgment on a claim that he had been constructively discharged. It is true that Johnson’s employment contract with the college primarily contemplated college classroom instruction. However, the new position which the college offered Johnson presents employment opportunities at the same salary and which are consistent with his training and experience. This transfer does not constitute a demotion. See Hamilton v. Telfair County School Dist., 265 Ga. 304 (455 SE2d 23) (1995). See also Rockdale County School Dist. v. Weil, 245 Ga. 730, 732 (2) (266 SE2d 919) (1980) (construing the Georgia Fair Dismissal Law, which, although inapplicable here, is instructive for its holding that a demotion takes place only where there is a reduction in responsibility, prestige, and pay). Also see Johnson v. Rogers, 214 Ga. App. 557, 558 (2) (448 SE2d 710) (1994) (construing the Rules of the State Personnel Board, again inapplicable but instructive, in which a transfer did not constitute a demotion because appellant’s class and pay status were unaffected). We believe the distinction between faculty and staff, which is central to the trial court’s finding, is one of nomenclature, exalting form over substance. For example, a doctor may be simultaneously a “faculty” member at a school of medicine and a “staff” member at a hospital. Universities may regard untenured professors as teaching staff and tenured professors as faculty. Other universities classify associate staff employees and faculty as “academic staff” in contrast to “classified employees.” Considering the nature of the new position offered to Johnson in this case as opposed to its classification, we are unpersuaded that Johnson’s status as “staff” rather than “faculty” had the significance it was accorded by the trial court. Therefore, we conclude the trial court erred in awarding summary judgment to Johnson on his breach of contract claim and in denying the college’s motion on the same issue. These parts of the trial court’s judgment are reversed and the appeal remanded with direction that the trial court enter judgment for the college.

Judgment affirmed in Case No. A95A0518. Judgment reversed with direction in Case No. A95A0519.

Birdsong, P. J., and Smith, J., concur.

Decided July 11, 1995

Reconsideration denied July 24, 1995

Jones, Boykin & Associates, Harold J. Cronk, for appellant.

Drew, Eckl & Farnham, Arthur H. Glaser, J. Robb Cruser, for appellee.


author: Birdsong, Presiding Judge.

text:
    A95A0682, A95A0683.
    OCHLE v. THE STATE (two cases).
    (459 SE2d 560)
   Birdsong, Presiding Judge.

Woody Ochle appeals his convictions for four counts of abusive words and two counts of sexual battery and his convictions for aggravated assault, aggravated battery, and making a false statement. The charges arose out of Ochle’s sexual remarks to and contact with fellow female high school students and his fight with the boyfriend of one of those victims. The charges were tried separately on two successive days.

Appellant gave notice of intent to introduce evidence of a specific act of violence by the aggravated assault victim, Todd Stewart, under Superior Court Rule 31.6, to wit, that at a basketball game Stewart challenged a boy to a fight, pulled out a knife and said he was cleaning his fingernails. The boy’s friends dissuaded him from fighting. The evidence was offered to show Stewart’s tendency to violence and that he had a knife on school property. The trial court disallowed the evidence because there was no actual fight.

At the aggravated assault trial, a victim of the abusive words offenses, Elisha Roper, testified she reported them to her boyfriend, Todd Stewart; after her basketball game on December 3, 1993, she and Stewart watched the boys’ game in which appellant hurt his ankle; she rode the bus back as did appellant; when she got in Stewart’s truck he said he would confront appellant; he did so as appellant was getting in his car; Stewart “reached in [Woody’s] car and . . . [Woody] come out the other side and around the back of the car and they started to fight”; when appellant came around the car, Stewart “was at the back of the car”; they met at the back of the car and started to fight; appellant hit Stewart about three times, then dropped a pipe. Roper showed how appellant swung the pipe and testified Stewart had his head in appellant’s chest, and she testified that appellant came to the hospital to see Todd Stewart after the fight. As to what occurred at the hospital, the prosecutor then asked Roper: “Did [appellant] say anything about that particular case? . . . What did he say?” She replied: “He said that about the pipe, he said that he needed to get rid of it. That he had been in court too many times before.” Counsel moved for a mistrial, saying this was highly prejudicial as a 17-year-old kid has no business in court except on criminal charges and the jurors were in court when a jury was picked to try appellant on other charges. The trial court told the jury to disregard “certain statements the defendant made to [Roper].” On cross-examination, Roper admitted Stewart reached in the car with both hands to grab appellant; “he looked [like] he was falling in”; appellant “jumped out the other side, so I guess [he was trying to get away].”

Todd Stewart testified he knew there was a possibility of a fight when he went to appellant’s car; he grabbed appellant’s car door and would not let him close it; he asked appellant what he had said to Elisha; appellant “told me I had better leave him alone, that he had something for me”; appellant reached in the floor board and “I didn’t know what he had, so it scared me and I grabbed him ... by the arm [and] I had a hold of his jacket. . . . And he raised up and I seen the pipe”; “[appellant] started crawling through the car and he . . . went out the passenger side and run around the back of the car and I was kind of leaned over in the car and I raised up and turned around and took a step and he swung the pipe”; when Stewart took a step, appellant was “right there on me”; Stewart may have hit appellant once or twice before the fight was broken up. On cross-examination Stewart said that when appellant told him to leave him alone, Stewart did not do so because “I . . . was mad [and ready to fight].”

A police officer testified appellant at first denied he had a pipe. A coach who had been appellant’s guardian testified he went to the hospital with appellant to see Stewart; appellant offered to apologize; appellant had a badly sprained ankle. Kerry Hayes testified “Todd [Stewart] started [the fight]”; Hayes was getting in appellant’s car when “Todd came to [appellant’s] side of the car and he was holding [appellant’s] hands down. . . . Todd [asked appellant] what he said to his girlfriend, and [appellant] said T didn’t say nothing about her’. . . Todd was holding his hands down and I got out of the car”; he “saw [Todd] grab [appellant’s] hands, and they were struggling”; Stewart and appellant met at the back of the car; appellant had hurt his ankle and was limping with one shoe off; Stewart came at appellant “with his fists drawn” and “like they was fixing to fight.”

Appellant defended by saying the female victims reported abusive words and contact only after his fight with Stewart. Appellant testified he was injured at the game and had to hop to his car; he had a bag of ice and another bag over one shoulder; he was shutting the car door when Stewart came over; he told Stewart he had said nothing about his girl friend, did not want any trouble and just wanted to go home, and Stewart proceeded to come in his car; Stewart had hold of appellant’s jacket and was striking him with his fist; appellant went across his console to get away; a dumbbell bar was in the floor board and appellant picked it up; Stewart was older and bigger than he was and he felt trapped; Stewart met him at the back of the car and came at him with his fists; Stewart had hold of appellant the whole time; appellant dropped the pipe after he hit Stewart but Stewart continued to fight.

A witness, Dustin Mullins, saw Stewart go to appellant’s car and “grab [appellant’s] hands, hold them down, exchange words”; Stewart put his hand on appellant’s throat and they scuffled; punches were thrown while appellant was sitting in his car; when they met at the back of the car both were swinging. This witness’s father testified he saw Stewart at appellant’s window; he saw fists, arms and hands flying inside the car; he saw appellant get out of his car and strike Stewart three or four times with the pipe; he broke up the fight and told appellant to move away; Stewart was still trying to fight. Held:

Case No. A95A0682

1. The State produced four girls who testified appellant made vulgar and obscene remarks to them in the nature of wanting to have sexual intercourse, and that he grabbed or pressed himself against two of these victims in a sexual manner. Although appellant contended these victims lied, the evidence was sufficient to persuade a rational trier of fact of appellant’s guilt of the offenses of abusive words and sexual battery under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err in denying appellant’s motion to make time an essential element of the offenses. The exact date of those offenses was not a material allegation. See Eberhardt v. State, 257 Ga. 420 (359 SE2d 908).

3. Appellant contends the trial court erred in denying his motion for change of venue. He appends to his brief an article from a local newspaper concerning the arrest of Woody Ochle, a 17-year-old Pick-ens High School student, for aggravated assault “after he allegedly struck 19-year-old Todd Stewart in the head with [an] iron pipe. . . . The incident has resulted in an outpouring of community concern over violence in the schools. . . . [One mother] expressed the sentiments of many in the community when she said, ‘It’s outrageous that a student just charged with a serious felony be allowed to . . . participate in school activities.’ Supt. Kimsey Wood said . . . this incident has stirred more public concern than any other local issue he’s seen in a long time.” Appellant also appends to his brief an editorial letter saying: “[A basketball player] got into a fight on school property [Friday night]. . . . [I]t has been alleged that the student used a metal pipe. . . . [S]tudents throughout the state are arming themselves, whether with a pipe, brass knuckles, a knife, or a gun.” Another editorial letter appended to appellant’s brief states: “A Pickens County High basketball player was arrested for felony assault. . . . This is not the first time this individual has been in trouble involving a deadly weapon.”

We do not take our evidence from briefs or go outside the record (Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33)), and we do not rule on issues not raised in the trial court. These news articles were not presented to the trial court. Assuming this would be a case suitable for change of venue (see Jones v. State, 261 Ga. 665 (409 SE2d 642)), appellant made no “substantive showing of the likelihood of prejudice by reason of extensive publicity.” Jones, supra at 666 (2) (b).

Case No. A95A0683

4. In the trial for aggravated assault and related charges, the trial court erred in denying a mistrial for the injection of character. See OCGA § 24-9-20 (b). Motions for mistrial are generally in the discretion of the trial judge, and especially where the cause is a voluntary remark of a witness uninvited by counsel, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the defendant’s fair trial rights, the court’s discretion will not be overturned. Collins v. State, 180 Ga. App. 220, 221 (348 SE2d 590); see Owens v. State, 204 Ga. App. 579 (1) (420 SE2d 79).

The trial court concluded that unresponsive statements by law enforcement officers are dealt with more sternly than unresponsive answers by laypersons (see Boyd v. State, 146 Ga. App. 359 (246 SE2d 396)), but application of this concept to this case was error because Elisha Roper’s statement was not unresponsive. The prosecutor’s query was answered exactly as made. The exchange indicates Roper and the prosecutor had discussed “that about the pipe” as well as whatever else appellant may have said. (Emphasis supplied.) It should have been anticipated that when asked what appellant said to her, Roper would volunteer all of what he allegedly said. The witness was evidently not instructed not to volunteer that appellant said he had been in court “too many times before,” and her reply does not appear inadvertent. See Boyd v. State, supra at 359-360, where we said: “[I]f we refuse to reverse this judgment, then we provide no incentive to district attorneys and solicitors to counsel their witnesses . . . to avoid extraneous and inadmissible outbursts.” Moreover, Roper did not say merely that appellant had been in court before, as in Cherry v. State, 220 Ga. 695, 696-697 (141 SE2d 412), but that he had been in court “too many times before.” This was highly prejudicial in all the circumstances of trial. Moreover, the trial court told the jury to disregard “certain statements the defendant made” which implied the statements were actually made by appellant.

Appellant’s alleged statement was not res gestae to anything, as it was made at the hospital some time after the fight.

The evidence against appellant on the charge of aggravated assault was not overwhelming and did not demand the verdict. Confronted with undisputed evidence that Stewart attacked appellant while he sat in his car with an injured ankle, with Stewart’s own testimony that appellant told him to leave him alone but Stewart did not do so because he was mad and ready to fight, and with the overwhelming evidence that Stewart met appellant at the rear of the car, which was contradicted only by Stewart’s testimony, the jury might have reached a different verdict had it not been told appellant had been in court “too many times before.” See Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Cauley v. State, 130 Ga. App. 278, 286-293 (203 SE2d 239).

5. It was error to exclude evidence of a specific act of violence by the victim on grounds merely that the actual fight challenged by him did not occur. The evidence showed the fight was averted because the witness’s friends prevented it, not because Stewart refrained. The rule allowing evidence of specific “acts of violence” of a victim emerged from Justice Weltner’s special concurrence in Lolley v. State, 259 Ga. 605, 608 (385 SE2d 285) (see Chandler v. State, 261 Ga. 402, 407 (405 SE2d 669)); Justice Weltner’s hypotheticals are similar to the most damning element of this case: that Stewart was without a weapon. The admissibility of such evidence is based not so much on an act of actual violence as on the victim’s “character for violence,” his “violent nature,” or his tendency to “ ‘act in accordance with his character’ ” as it relates to the defendant’s justification. Lolley at 608-609 (3). The victim’s tendency to provoke violence may be as relevant to a defense of justification as his tendency to engage in actual violence. Provocation of violence may be an “act of violence.” We note further that it is not essential that the specific act occurred prior to the act being tried. See Judge Carley’s special concurrence in Daniel v. State, 205 Ga. App. 737, 738 (423 SE2d 432); see also Moore v. Thompson, 255 Ga. 236 (336 SE2d 749). If there was doubt as to admissibility of the evidence, it was better admitted and its weight and credibility left to the jury. Sabree v. State, 195 Ga. App. 135, 137-138 (392 SE2d 886). This is especially true where such evidence provides a clue to motives of the accuser (see, e.g., Mulkey v. State, 155 Ga. App. 304 (270 SE2d 816)) or the defendant in a criminal case. Lolley, supra.

6. As a new trial must be granted on the aggravated assault and related charges, it is unnecessary to address the issues relating to pretrial publicity as raised in this trial.

Judgment affirmed in Case No. A95A0682. Judgment reversed in

Decided May 31, 1995

Reconsideration denied July 24, 1995

Richard Thurman, for appellant.

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

Case No. A95A0683.

Johnson and Smith, JJ., concur.


text:
    A95A1265.
    WILSON FOODS CORPORATION v. TURNER et al.
    (460 SE2d 532)
   Birdsong, Presiding Judge.

Appellant/defendant Wilson Foods Corporation appeals the final judgment entered on behalf of appellees/plaintiffs Cynthia Byrd Turner, individually and as next friend of Christopher Alexander Turner, a minor. This suit for damages arises from a claim of products liability based on negligent design, manufacture and sale. The claim is grounded on two contentions: negligent design of a composite container for shortening causing it to be misidentified by a consumer as a metal container, and negligent design of the composite container by failing to locate on its plastic lid a warning not to pour hot oil into the container.

In 1986 Charles Turner purchased Bake-Rite shortening from a local store. He used the shortening to prepare some food and then poured the remaining hot shortening back into its container; at the time, he was unaware that the can was not metal. The container was made of a composite material. Mr. Turner was carrying the shortening container to the trash when it is claimed to have dissolved, splashing hot grease upon his two-year-old son; the child was seriously burned and permanently scarred. The jury returned a verdict in favor of appellees/plaintiffs. Held:

1. Appellant contends the trial court erred in denying its motion for directed verdict because Charles Turner’s negligence was the proximate cause of the injury to his son. The standard for directed verdict is as follows: “ ‘Where 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, such verdict shall be directed.’ ” The appellate review standard of a trial court’s denial of a directed verdict motion is the any evidence standard. Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267). In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274).

In a products liability case, whether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350). When such suits are grounded on either a strict liability or negligence theory, proximate cause is a necessary element of the plaintiff’s case. Powell v. Harsco Corp., 209 Ga. App. 348, 350 (2) (433 SE2d 608). Generally, questions of negligence and proximate cause are peculiarly questions for the jury. Taylor v. McClendon, 205 Ga. App. 390 (422 SE2d 440); see Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629). “It is also a jury question whether or not the manufacturer was negligent in failing to place a warning in such position, color and size print or to use symbols which would call the user’s attention to the warning or cause the user to be more likely to read the label and warning than not.” (Emphasis supplied.) Eldridge’s Georgia Products Liability, Theories of Negligence, § 2-24, p. 49. Where a duty to warn arises, as it does in this case, “[t]his duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential risks.” Thornton v. E. I. Du Pont &c. Co., 22 F3d 284, 289 (12, 13) (11th Cir.). While failure to read instructions or printed warnings will prevent a plaintiff from recovering on a claim grounded on failure to provide adequate warning of the product’s potential risk (see generally Powell, supra at 350 and cases cited therein), “[f]ailure to read a warning does not bar recovery when the plaintiff is challenging the adequacy of the efforts of the manufacturer or seller to communicate the dangers of the product to the buyer or user.” Thornton, supra at 290 (18-19), and cases cited therein; compare Rowson v. Kawasaki Heavy Indus., 866 FSupp. 1221, 1238-1239 (11-14) (N.D. Iowa); see generally Maleski, Georgia Products Liability (2d ed.) § 10-1. Failure to communicate an adequate warning involves such questions, as are here at issue, as to location and presentation of the warning. Rowson, supra. It has been held that “where plaintiff alleges that a warning is inadequate because it was not effectively communicated — a presentation and location of warnings case — the plaintiff’s failure to read the warning may be [circumstantial] evidence of the inadequacy of the warning.” Id. at 1238 (12). This conclusion is entirely consistent with the evidentiary rule in Georgia favoring the admission of any relevant evidence, no matter how slight its probative value. See, e.g., West v. Nodvin, 196 Ga. App. 825, 828 (3) (b) (397 SE2d 567).

The record establishes without contradiction that Charles Turner failed to read any of the warnings affixed to the Bake-Rite container. Thus, consistent with the above-discussed precedent, appellant/defendant would be entitled to a partial directed verdict (see generally Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573 (4) (377 SE2d 15)) as to a products liability claim grounded upon an inadequacy of warning by reason of the insufficient, inaccurate or misleading nature of the content of the warning. Powell, supra. However, the posture of the evidence did not compel a verdict on behalf of appellant as to any claim grounded upon the defective design of the container by reason of its can-like appearance or lack of a warning located on the plastic container cover. Appellees contend they asserted no claim based on inadequacy of the content of the warning but merely asserted claims as to defective design due to the container’s can-like appearance and the location of the warning. Appellees’ complaint, however, avers inter alia: “Defendant Wilson Foods Corporation had a duty to warn that its product container was not fit for the storage of cooked or hot shortening and failed to provide such a warning or to provide an adequate warning so as to alert consumers and, specifically, plaintiff ... to the dangers inherent in storing used or cooked grease in its container.” Additionally, it was averred that appellant “was negligent in failing to adequately warn users of its product of the dangers associated with storing cooked or used grease in such containers.” Clearly, under the notice pleading criteria of our Civil Practice Act (see, e.g., Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)), these particular averments asserted, inter alia, a claim based on inadequacy of the content of the warning. Additionally, testimony of record revealed that, although the containers used by Bake-Rite were changed from metal to composite containers with metal tops and bottoms, “the exact same warnings” appeared on the containers’ lids and labels; “so regardless of whether it was a metal container or a composite container, the same warnings continued and perpetuated throughout all those decades up until the end of the eighties.” During final argument, appellees’ counsel argued to the jury that: “Mr. Baxter testified that this container that they started selling in July of 1986 was less likely to withstand heat than a metal container. . . . They did not change the language [of the warning].” Examination of the charges to the jury reveals that the inadequacy of warning issue, as charged, was not limited in scope to a claim of inadequacy of warning due to location thereof; rather, the charges pertaining to warning were broad enough to apply to a claim of inadequacy of the warning’s content.

Viewing the record and transcript in their totality, it appears that, whether intentionally or inadvertently, appellees in fact also asserted a claim of inadequate warning due to the lack of sufficiency of its content. The trial court erred in not granting a partial directed verdict as to this claim. Powell, supra. A fair risk exists that the jury could have concluded that the warning was defective in its content, and that such a finding contributed to the ultimate verdict entered in favor of appellees. Under the attendant circumstances, we cannot find that the error in failing to grant a partial directed verdict was harmless.

2. In view of our holding in Division 1 above, we elect not to address appellant’s claim that the trial court erred by ordering the jury, after publication of the verdict, to conform it to the court’s earlier verdict charge; the initial verdict included an award of punitive damages although such was neither requested by appellees/plaintiffs nor instructed upon by the trial court. It is unlikely this error will recur in the event of a retrial.

3. In view of our holding in Division 1 above, and it being unlikely that such error will recur in the event of retrial, we will not address appellant’s claim that the trial court erred in failing to allow it to introduce the deposition testimony of Mr. Moore on the grounds the witness had not been named in the pretrial order. However, a pretrial order is ineffective for any purpose until it is signed by the trial judge. Roman v. Terrell, 195 Ga. App. 219 (1) (393 SE2d 83). Moreover, the harsh sanction of precluding the calling of witnesses not listed in a valid pretrial order cannot be upheld if less harsh sanctions are available and appropriate. See generally Ambler v. Archer, 230 Ga. 281, 289 (1) (196 SE2d 858).

4. Appellant contends the trial court committed reversible error by improperly permitting appellee to introduce post-sale and post-incident evidence regarding warnings on another manufacturer’s products, as these warnings did not exist at the time of the incident and were therefore irrelevant.

Appellees introduced into evidence, over appellant’s objection, a plastic shortening can lid (bearing thereon a warning) which had been made by another manufacturer. Generally, the determination whether evidence is relevant rests in the sound discretion of the trial court. Gully v. Glover, 190 Ga. App. 238, 242 (4) (378 SE2d 411). In Georgia as a general rule in negligence cases, “[t]he installation of a warning device or the giving of instructions or warnings after a product has caused an injury is inadmissible to show negligence, because such evidence is against the public policy to encourage safety through remedial action, and such safety measures might be discouraged if admissible as evidence of negligence.” (Emphasis supplied.) Eldridge’s Georgia Products Liability, supra at § 2-24, p. 51, citing McClurd v. Reddick, 135 Ga. App. 136 (217 SE2d 163); compare General Motors Corp. v. Moseley, 213 Ga. App. 875, 881 (4) (447 SE2d 302).

“[AJlthough evidence of subsequent remedial measures is generally inadmissible in negligence actions, there are several exceptions to that rule, ‘such as when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the. defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on.’ Chastain v. Fuqua Indus., 156 Ga. App. 719, 722 (275 SE2d 679). . . . Such evidence may also be admitted where the feasibility of repair or modification is an issue. Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262 (427 SE2d 547). . . . However, when evidence of subsequent remedial measures is admitted for one of those exceptions, the jury should be instructed as to the limited purpose of its admission and admonished not to consider it as evidence of negligence. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (178 SE2d 543).” General Motors Corp. v. Moseley, supra at 882 (4). Unless within an exception, evidence of remedial design changes made by other manufacturers of similar products normally would be inadmissible due to its potential to confuse a jury. Grenada Steel Indus. v. Alabama Oxygen Co., 695 F2d 883, 889 (5th Cir.) and Middleton v. Harris Press &c., 796 F2d 747, 752 (5th Cir.).

Additionally, however, the accepted balancing test for evaluating claims of design defectiveness is the risk-utility analysis test of Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671); this test balances the risks inherent in a product design against the utility of the product so designed. “One factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs, in that the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design. . . . [T]he reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is considered the ‘heart’ of design defect cases.” Id. at 735 (1). “[I]n determining whether a product was defectively designed, the trier of fact may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible.” (Emphasis supplied.) Id. at 736 (1). The plaintifF in a suit involving a claim of defective design may introduce evidence “that a feasible alternative design, which could have prevented or minimized the plaintiff’s injury, was available at the time the manufacturer made its design decisions.” Id. at 737 (1). If evidence is duly admissible under any legitimate evidentiary theory, it should be admitted even though it would not qualify for admission under one or more other theories. Pouncey v. Adams, 206 Ga. App. 126, 127 (1) (424 SE2d 376). Plaintiff’s failure to establish an adequate foundation for admission of such evidence would be subject to objection. In the event of retrial, admissibility of evidence as to the location of the warning used by other shortening manufacturers shall be determined in light of the various evidentiary rules discussed above.

Decided July 3, 1995

Reconsideration denied July 24, 1995.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Lloyd B. Hedrick, for appellant.

Smith, Howard & Ajax, Michael J. Rust, Michael D. St. Amand, for appellees.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: Pope, Presiding Judge.

text:
    A95A0451.
    In re MARTIN.
    (460 SE2d 304)
   Pope, Presiding Judge.

This is an appeal from the Cobb County probate court’s order appointing C. Fred Reeves as guardian of the property of Elizabeth Martin and appointing the Department of Family & Children Services (“DFACS”) as guardian of her person.

Elizabeth Martin is an elderly incapacitated adult who suffers from various ailments, including advanced dementia which has resulted in permanent cognitive impairment. In 1980, Martin hired Rena Mae Calhoun as a paid sitter for her. In 1985, Martin gave Calhoun power of attorney. Calhoun used the power of attorney to handle Martin’s affairs.

In 1993, DFACS began investigating allegations that Calhoun was exploiting Martin. During that investigation, Calhoun filed a petition seeking guardianship of Martin. DFACS filed an objection to Calhoun’s petition, claiming that she was using Martin’s property for her own personal gain. The document which DFACS filed also petitioned the court for the appointment of itself as guardian of Martin’s person, and for the appointment of Reeves as guardian of the property.

In April 1994, the court convened and decided to continue the hearing pending the district attorney’s investigation. Pending the completion of that investigation, the parties agreed that a guardian ad litem be appointed for Martin and that Calhoun continue to pay Martin’s bills from the available funds. Pursuant to the parties’ agreement, attorney Drexinger was appointed guardian ad litem for Martin.

On May 24, 1994, after reviewing the accounts being handled by Calhoun, Drexinger filed “A Petition for Direction” in which he attached evidence showing that Calhoun was spending Martin’s money to pay personal bills. On June 24, 1994, Drexinger filed a report with the court in which he concluded that Calhoun was spending money from Martin’s account to cover many of her personal household expenses, including car and truck payments, credit card payments, and household utilities payments.

On July 7, 1994, the hearing regarding Martin’s guardianship was held, after which the court concluded that Calhoun was more interested in her own personal gain than in Martin’s interests. The court found that Martin’s funds had been depleted at a rapid rate and that Calhoun’s explanation for the depletion was that, pursuant to an oral agreement with Martin, she had complete discretion with the funds. Accordingly, the court appointed Reeves and DFACS as Martin’s guardians.

At the outset, we must address DFACS’ argument that a letter from Calhoun’s attorney waived her right to appeal. That letter, dated July 20, 1994, which was sent by telecopier, stated “[although very disappointed in the decision, my client advises that there will be no appeal.” Calhoun then filed a notice of appeal on August 8, 1994. Contrary to DFACS’ contentions, this informal communication did not eliminate Calhoun’s right of appeal.

1. First, Calhoun claims that the probate court erred in having ex parte communications with the parties. Calhoun’s argument is based on a letter from two DFACS workers to the probate judge, which was sent after Calhoun’s petition was filed. In the letter, the DFACS workers advised the court that they were in the process of investigating Calhoun’s alleged exploitation of Martin.

There was no objection raised below to this alleged error and nothing is presented for our review. See generally Bell v. Forster, 211 Ga. App. 76, 77 (1) (438 SE2d 145) (1993). Even assuming that the alleged error is properly before us, there is no argument that the court responded in any manner to the letter. Furthermore, there is no indication in the record that the trial court gave any consideration to the letter, and we find no harmful error. See generally Ivey v. Ivey, 264 Ga. 435 (3) (445 SE2d 258) (1994); Stinchcomb v. State, 192 Ga. App. 8, 10 (383 SE2d 609) (1989); compare Arnau v. Arnau, 207 Ga. App. 696 (1) (429 SE2d 116) (1993).

2. Calhoun argues in her second and fourth enumerations that the court erred by allowing the Department of Human Resources (“DHR”) to participate in the case without requiring it to comply with the Georgia Civil Practice Act. Specifically, Calhoun contends that DHR should have been required to file a motion to intervene and that any acts which the court took after its first opportunity to require compliance with the CPA were void.

Again, Calhoun did not raise these arguments properly below, and has waived any alleged error. See generally Bell, supra.

DHR properly filed an objection to Calhoun’s petition and then it petitioned for the appointment of guardians. OCGA § 29-5-6 outlines the procedure for appointment of a guardian, stating in subsection (a) (1) that: “[a]ny interested person or persons, including the alleged incapacitated person, and including the Department of Human Resources in the case of an allegedly incompetent person who is receiving services from the department or whom the department believes to be eligible for such services, may file a petition under oath for the appointment of a guardian.”

In Kipp v. Rawson, 193 Ga. App. 532 (1) (388 SE2d 409) (1989), this court recognized that: “[t]he statute outlining the procedure for appointment of a guardian, OCGA § 29-5-6, does not specifically provide for intervention by a third party in a guardianship proceeding. Nor does it prohibit such intervention. It permits the petition for guardianship to be brought by any ‘interested person or persons,’ and ‘any interested person’ can move for appointment of a guardian ad litem for the proposed ward. OCGA § 29-5-6 (a) (1) and (b) (2) (D).” Id., at 533-534. In Kipp, the court concluded that OCGA § 9-11-24, which controls intervention of parties, applies to intervention by a third party in a guardianship proceeding. In so finding, this court held that the probate court erred in summarily denying a third party’s petition to intervene.

Here, Calhoun argues that it was error for the probate court to fail to require the DHR to file a motion to intervene. Given that OCGA § 29-5-6 is silent as to the mechanism for intervention, we cannot conclude that a motion under OCGA § 9-11-24 was mandatory. Accordingly, there was no error in the method by which DHR asserted its position. Because of our conclusion, Calhoun’s arguments that all of the court’s actions subsequent to the appearance of DHR were void must also fail.

3. Calhoun claims the probate court erred in appointing an attorney to represent Martin. Calhoun argues that Martin was denied due process in the selection of counsel since an attorney was obtained on only two days notice. Calhoun also argues that she should have had the opportunity to select Martin’s counsel and that Martin’s representation was inadequate.

First, these arguments were not raised in the court below and are not properly before the court. Moreover, OCGA § 29-5-6 (b) (2) (B) states that if the court determines that there is sufficient evidence that a proposed ward is incapacitated, the court “will appoint counsel within two days unless the proposed ward indicates that he has retained counsel by that time.” There is no indication from this provision that an alleged embezzler should have any control over the selection of counsel and Calhoun’s arguments in this regard are specious. See generally Levenson v. Oliver, 202 Ga. App. 157 (2) (413 SE2d 501) (1991).

4. Calhoun argues that the probate court erred in failing to follow OCGA § 29-5-2. She claims that under this statute, she, not DFACS, should have been appointed guardian. Calhoun also argues that no good cause for the failure to appoint her as guardian was shown. In another enumeration, Calhoun argues that the court abused its discretion by failing to follow Martin’s preference as to which guardian she wanted.

These arguments ignore the facts of this case and are without merit.

5. After the hearing, a “Request for Extra Compensation” for Drexinger’s services rendered was sent to Reeves, as guardian of Martin’s property. No objections were filed to the request and Drexinger was awarded $1,210 for his services. Here, Calhoun argues that OCGA § 29-5-13 (f) allows a fee of only $10 per diem for a guardian ad litem for an incapacitated adult and that the court erred in ordering payment of more than this amount. Assuming that this error was properly preserved, it is without merit. Moreover, Calhoun has no standing to raise this argument, since the amount was paid from Martin’s property, in which Calhoun has no interest.

6. Finally, Calhoun argues that the court was without authority to designate attorneys Drexinger and Reeves as “appellees” or to set supersedeas bond on their motion.

Calhoun has no standing to raise the arguments regarding the designation of Drexinger and Reeves as “appellees.” Furthermore, they are proper parties to respond to this appeal and this argument is without merit.

Calhoun’s argument that the court had no authority to set bond is also without merit. After a hearing on the matter, the court set the bond in the amount of Martin’s funds to which Calhoun had access. The court ordered that Calhoun “shall post Supersedeas Bond with this court in the amount of $797,816.77 as a condition to the receipt of any funds belonging to Elizabeth Calhoun Martin. Said bond shall be with such surety as is approved by this Court.”

First, given our disposition of the case, the issue is moot and need not be ruled upon. Freeman v. Bentley, 205 Ga. App. 409 (2) (422 SE2d 435) (1992). Moreover, we find no abuse of the court’s discretion in its handling of this matter. See generally OCGA §§ 5-6-46; 15-9-123 (b); Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 597-598 (5), (7) (448 SE2d 913) (1994).

Appellees’ motion for a penalty for a frivolous appeal is granted and a penalty of $500 is hereby imposed. See Court of Appeals Rule 15 (b). The imposition of such penalty shall constitute a money judgment in favor of appellees against appellant. Upon filing of the remittitur in the court below, the penalty may be collected as are other money judgments.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

Decided July 10, 1995

Reconsideration denied July 25, 1995

Wallace C. Clayton, for appellant.

Edwards, Friedwald & Grayson, Robert J. Grayson, C. Fred Reeves, Janyce E. Owings, Gaeton L. Drexinger, for appellee.


text:
    A95A0707.
    TRAVELERS INDEMNITY COMPANY v. HOLTZ.
    (460 SE2d 300)
   Ruffin, Judge.

Robert Holtz was injured in an automobile accident and incurred $31,216.96 in medical expenses and $4,558 in property damage. Holtz made a claim to his insurance company, The Travelers Indemnity Company (“Travelers”), which paid him a total of $5,000 in no-fault benefits, the full extent of his coverage. Holtz sued Travelers after it refused his demand to reimburse him for all his damages. In his complaint, Holtz alleged that since his insurance application did not properly advise him of optional personal injury protection (“PIP”) and property damage coverages available under the former OCGA § 33-34-5 (b), he was entitled to these optional benefits in an amount that would cover his total claim. The trial court denied Travelers’ motion for summary judgment, ruling that the company’s application for insurance coverage did not comply with the former OCGA § 33-34-5 (b). Because we find the application did comply with the statute, we reverse.

The legislature enacted the former OCGA § 33-34-5 (b) to draw a bright line between cases where applicants effectively rejected optional coverages and cases where the applicant did not. Southern Guaranty Ins. &c. v. Goddard, 259 Ga. 257 (379 SE2d 778) (1989). That Code section, which was in effect at the time Holtz applied for insurance coverage with Travelers, required that “[e]ach initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.” Accordingly, “for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in bold face, and (3) that the statement be signed by the applicant.” Id. at 258.

The insurance application in this case consisted of three pages. The first two pages of the application contained space for general information concerning the applicant and options for general coverage. The third page, titled “SUPPLEMENTARY APPLICATION — GEORGIA” listed optional PIP and property coverages. At the top of the supplementary application is the statement: “The following optional automobile coverages are offered in accordance with the Georgia statute. An X indicates option selected.” Under that statement are sections concerning coverage for property damage, PIP deductible, additional PIP protection with overall limits from $10,000 to $100,000, and uninsured motorist coverage. At the bottom of the supplementary application in conspicuous bold-face print is the following: “INSURED’S OR APPLICANT’S STATEMENT — The coverages on this supplementary application were explained to me, and I knowingly made the selections indicated.” Holtz signed the application immediately below this statement.

Holtz contends the statement was deficient because it provided only that the coverages listed on the supplementary application were explained to him and did not provide that the coverages required by statute were explained to him. In the numerous cases where we have reviewed statements similar to the one in this case, we have consistently held the statements sufficient. For example, in Atlanta Cas. Co. v. Powell, 200 Ga. App. 160 (407 SE2d 56) (1991), we approved a statement providing, “[e]ach of the Personal Injury Protection Options shown above has been fully explained to me.” (Emphasis omitted.) Id. at 161. In Duncan v. American Mutual &c. Ins. Co., 197 Ga. App. 548 (398 SE2d 759) (1990), we approved of a statement providing, “ T affirm that all options set forth above and on the reverse side of this application have been offered and explained to me as required by State Law or Regulation.’ ” Id. at 549. And, in Henry v. Gulf Ins. Co., 214 Ga. App. 516 (448 SE2d 230) (1994), we held as sufficient the wording of the statement, “I acknowledge that all of the above optional coverages have been explained to me.” Id. at 518 (We ultimately concluded that the statement did not satisfy former OCGA § 33-34-5 (b) because it was not in boldface). In each of these cases the statement failed to provide that the coverages required by statute were explained to the applicant as Holtz contends Travelers’ application should. Furthermore, in each of these cases the coverages listed on the application were not a verbatim recitation of the coverages provided for in the statute.

The application in this case listed the types of coverages provided for in the former OCGA § 33-34-5 (a). The required bold-face acknowledgment and Holtz’s signature followed this list of coverages. Under these circumstances, we conclude that the application passed the bright line test for establishing whether an applicant effectively rejected the optional coverages listed in the former OCGA § 33-34-5 (a). Since Holtz rejected the optional coverages, the trial court erred in denying Travelers’ motion for summary judgment. See Powell, supra.

Decided June 13, 1995

Reconsideration denied July 25, 1995

Freeman & Hawkins, Michael J. Goldman, Stephen M. Brooks, Oliver B. Dickens, Jr., for appellant.

Bell & Bell, David B. Bell, Hull, Towill, Norman & Barrett, David E. Hudson, Ronald A. Lowry, for appellee.

Judgment reversed.

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