text:
    A01A0724.
    UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY v. NORTH et al.
    (551 SE2d 798)
   Pope, Presiding Judge.

As part of a land purchase contract with Carlton North, the Unified Government of Athens-Clarke County agreed to build a new access road to its Cedar Creek water treatment plant. The road would eliminate the need for plant-related traffic to drive through a residential area being developed by North. When the Unified Government failed to construct the access road in a timely manner, this breach of contract action against the Unified Government followed, and a jury awarded damages and attorney fees to North, Belle Meade Plantation, Inc., and C. R. North Development, Inc. After the denial of its motions for a judgment notwithstanding the verdict and for a new trial, the Unified Government appeals, raising issues regarding the validity of the Unified Government’s obligation to build the access road and the measure of damages, among other things. Because we find no merit in the Unified Government’s enumerations of error, we affirm.

Viewing the evidence in the light most favorable to the jury’s verdict, North owned 562 acres of land adjacent to the Cedar Creek water pollution control plant in Athens-Clarke County. North planned to develop the land as a residential project called the Belle Meade subdivision. After North had obtained the required governmental approvals, he began to develop the subdivision and had completed the first house, when he learned that the Unified Government was considering the Cedar Creek facility as the location of its regional water treatment plant. Through his attorney, North informed the Unified Government that an expansion of the water treatment facility would destroy the Belle Meade project, and that he would consider such an expansion to be an inverse condemnation of his property. North demanded that the Unified Government purchase all of his land adjacent to the Cedar Creek facility, but the Unified Government agreed to buy only a 452-acre portion of the 562-acre tract. As part of the sales agreement, the Unified Government agreed to construct a new access road to the water treatment plant within 18 months of the real estate closing. The access road would divert plant-related traffic from the land retained by North. On May 3, 1994, the Unified Government approved the land purchase and resolved that as part of the terms of purchase, “Athens-Clarke will commit to the construction of a new access roadway from Barnett Shoals Road to the plant site within 18 months.” The contract was signed on August 8, 1994, and closing occurred on August 9, 1994.

Aside from the transfer of the property and the construction of the access road, the sale agreement provided for certain other additional obligations. These additional obligations included, on the part of North, payment of $122,000 for reimbursement to the Unified Government of the value of the road within the portion of the property retained by North, and payment by the Unified Government of up to $121,230.21 to reimburse North for the cost of improvements to the land sold. After the sale, North was obligated to change the county road traversing the development to a cul-de-sac. The Unified Government was obligated to erect a fence on the cul-de-sac and to block all traffic unrelated to the water treatment plant. North honored all of his post-closing obligations.

Evidence shows the Unified Government department entrusted with completing the road construction purposely delayed starting the project because other matters were more pressing. Although the access road was required to be completed by February 9, 1996, the Unified Government did not solicit and receive bids on the project until February 1,1996. Once bids were received, the earliest the road could be completed was eight months later. Bids were presented to the commissioners on April 2, 1996, for approval, but they declined to move forward with construction. The Unified Government received bids again on February 20, 1997, and the access road construction began in the spring of 1997. By that time North had sold his interest in the Belle Meade property.

North filed this breach of contract action against the Unified Government on April 24, 1997. The case went to the jury in October 1999, and they returned a verdict in favor of North, including an award of compensatory damages and attorney fees.

1. The Unified Government claims that its agreement to build the access road was ultra vires and void and that the trial court erred by refusing to grant its motion for summary judgment on that basis. The Unified Government is authorized to open roads under its charter, see Ga. L. 1990, p. 3560, §§ 1-104 and 8-114, and there is no question that the contract was approved by the then existing commission and was properly executed and delivered on behalf of the Unified Government. However, the Unified Government claims that the contract violates OCGA § 36-30-3 (a), which provides: “One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” This prohibition has been extended to contracts as well as ordinances and to counties as well as municipalities. See City of Powder Springs v. WMM Properties, 253 Ga. 753, 756 (2) (325 SE2d 155) (1985). The statutory prohibition is taken from Williams v. City Council of West Point, 68 Ga. 816 (1882): “A municipal corporation may bind itself by, and cannot abrogate, any contract which it has the right to make under its charter, but one council cannot, by ordinance, bind itself and its successors to a given line of policy, or prevent free legislation by them in matters of municipal government.”

The Unified Government argues that the road construction was a governmental matter and that one commission could not bind a subsequent commission to complete the road, especially where the future commission would be required to appropriate funds and to solicit bids from contractors in order to complete the project. They also point out that the 18-month period allowed for the road construction extended beyond the term of the commissioners who approved the contract.

The trial court denied the Unified Government’s motion for summary judgment, finding that the agreement did not improperly bind the successor commission so as to prevent free legislation in matters of municipal government. We agree. OCGA § 36-30-3 (a) does not prevent a contract from extending beyond the term of the commission in office at the time of execution.

If the rule of [OCGA § 36-30-3 (a)] be too rigidly applied, there would be few contracts which municipalities in this State could legally enter into, since contracts, by definition, must be binding, and many of them, to be practical and effective, must extend beyond the existing councils’ terms because of the nature of their subject matter.

Jonesboro Area Athletic Assn. v. Dickson, 227 Ga. 513, 518 (1) (b) (181 SE2d 852) (1971). The more recent case law has tended to loosen the strict construction given to OCGA § 36-30-3 (a) in the past.

Cases . . . indicate that a council may bind itself although it may not bind its successors. It was also held that a future council may be bound by the terms of a contract if that council either approves the terms of the contract or ratifies it. Increasingly, cases have made a distinction between contracts made by a municipality in the exercise of its proprietary function as opposed to its governmental function, the courts allowing more flexibility in contracting in connection with the proprietary functions of a municipality. There is some indication that the question of whether the contract involves a financial obligation on the part of the municipality should be considered in addition to the question of whether the proprietary or governmental functions are involved.

(Citations omitted.) Brown v. City of East Point, 246 Ga. 144, 145 (268 SE2d 912) (1980). There are a number of ways in which a contract can be found not to violate the statutory restrictions:

Consideration of whether municipal contracts are subject to the prohibition of OCGA § 36-30-3 (a) involves at least 4 questions: (1) Is the contract governmental in nature and hence subject to the prohibition, or proprietary and hence not subject to the prohibition? (2) If governmental in nature, is the contract subject to an exception? (3) If not, is the contract subject to ratification and has it been ratified? (4) If not, is the municipality estopped from relying on the statutory prohibition?

(Footnote omitted.) City of Powder Springs v. WMM Properties, 253 Ga. at 756-757 (2).

The Unified Government’s decision to commit to construct the access road was governmental, but once the commitment to build had been made the subsequent steps in completing the project can be viewed as within the proprietary function of the Unified Government. See Jackson v. City of Rome, 182 Ga. 848, 855-856 (187 SE 386) (1936). See also Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837 (165 SE2d 141) (1968) (the safe construction and maintenance of a street is within a municipality’s corporate powers rather than its governmental powers). When the commission entered into the contract with North, it did not bind future commissions in governmental matters, and so did not violate the prohibition of OCGA § 36-30-3 (a). See City of Powder Springs, 253 Ga. at 758 (OCGA § 36-30-3 (a) is not applicable to the proprietary functions of local government). However, if the obligation to build the access road is considered to remain a governmental matter, the length of the contract and the actions of the succeeding commission support a finding that the agreement was valid and binding on the subsequent governmental body. The contract requires performance within a limited time: “The weight of authority sustains the doctrine that a municipal corporation may make a valid contract to continue for a reasonable time beyond the official term of the officers entering into the contract for the municipality.” (Punctuation omitted; emphasis in original.) Jonesboro Area Athletic Assn., 227 Ga. at 518 (1) (b); Bd. of Commrs. v. Chatham Advertisers, 258 Ga. 498, 500 (2) (371 SE2d 850) (1988). Furthermore, the access road was eventually built, and the Unified Government realized the entire extent of its bargain under the agreement, indicating that the subsequent commission ratified the obligation to build the road. See DeKalb County v. Ga. Paperstock Co., 226 Ga. 369 (174 SE2d 884) (1970), but contrast Horkan v. City of Moultrie, 136 Ga. 561, 563 (71 SE 785) (1911).

The Unified Government also points to OCGA § 36-60-13, which provides that a city or county multi-year purchase contract for goods or services must be subject to annual termination by the city or county. “But. . . the Code section is intended to prohibit the creation of a county or municipal debt in excess of one year.” Abedi v. City of Atlanta, 244 Ga. App. 562, 563 (1) (c) (536 SE2d 255) (2000). The commitment to build a road within 18 months is not a long-term debt obligation and is not prohibited by OCGA § 36-60-13. Inasmuch as the contract with North was not ultra vires by reason of a violation of OCGA § 36-30-3 (a) or § 36-60-13, we find that the trial court did not err in denying the Unified Government’s motion for summary judgment.

2. The Unified Government argues that the trial court erred in failing to grant the Unified Government’s motion for j.n.o.v., because no evidence before the jury was sufficient to allow a finding that the damages sought were such as were contemplated by the parties as a result of the subject breach. “A directed verdict is authorized only when 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.” (Citation and punctuation omitted.) Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (1994).

“Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. The Unified Government argues that the parties only contemplated damages to North if there was a change in use in the treatment plant; and the plant has not been expanded to a regional facility. The Unified Government refers to testimony that shows that North suffered damages due to a public perception that traffic through the proposed subdivision might increase due to the regional sewer facility and notes that there is no evidence that there was such an increase in traffic. The Unified Government maintains that therefore North suffered no damages that were contemplated by the parties at the time of contracting.

But evidence shows that the parties intended the access road to eliminate plant-related traffic from passing through the Belle Meade residential development, not just to avoid increased traffic due to an expansion of the plant. Indeed, the Commission Agenda Item presented to the Athens-Clarke County Commission for its May 3, 1994 executive session concerning approval of the contract stated that “It is the staffs’ opinion that . . . eliminating truck traffic through a residential neighborhood would be highly desirable in eliminating future problems at the Cedar Creek Plant site.” (Emphasis supplied.) Regardless of the Unified Government’s motivation, this statement is evidence that it knew the goal was to eliminate plant-related traffic. These facts distinguish the cases cited by the Unified Government. We find that it was reasonable to anticipate that failure to build the access road would adversely affect the value of the Belle Meade development, regardless of whether the Cedar Creek facility was expanded. The evidence does not demand a finding that damages sought were not contemplated by the parties at the time of contract, and the trial court did not err in denying the Unified Government’s motion for a j.n.o.v. on this basis.

3. The Unified Government claims the trial court erred in failing to grant its motion for j.n.o.v. with regard to the jury’s award of attorney fees for bad faith, as the verdict was contrary to public policy and legislative intent. They argue that the Unified Government’s failure to accept a bid to construct the road in April 1996 was based on the bids being too high. North points out that even if the Unified Government had accepted a bid, the access road could not have been completed in accordance with the terms of the contract because the road was required to be completed in February 1996.

Expenses of litigation are recoverable “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” OCGA § 13-6-11. Counties are not protected from expense of litigation claims. See Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 895 (4) (360 SE2d 425) (1987).

Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.

(Citations and punctuation omitted.) Plemons v. Weaver, 243 Ga. App. 464, 466 (2) (533 SE2d 747) (2000). Evidence would support a finding that the Unified Government chose to delay construction of the access road so that the staff could attend to “day-to-day” matters, which they deemed to be more pressing, all without telling North, and so it purposefully breached the contract with North. The trial court did not err in denying the Unified Government’s motion for j.n.o.v. with regard to the award of attorney fees.

4. The Unified Government argues that the trial court erred by refusing its request to amend the pre-trial order to show lost profits as the proper measure of damages for breach of contract. They also claim the trial court erred in charging the jury over exception that the proper measure of damages for breach of contract in this case was diminution in the fair market value of property before and after the breach, as opposed to lost profits.

“The general rule for the measure of damages involving real property is the diminution of the fair market value of the property and/or the cost of repair or restoration, but limited by the fair market value at the time of the breach or tort.” Ryland Group v. Daley, 245 Ga. App. 496, 502 (7) (537 SE2d 732) (2000).

The evidence authorizes a charge based on diminution of value. North presented expert testimony that the houses he developed in the Belle Meade subdivision dropped in value from $81.26 a square foot to $68.23 a square foot due to the Unified Government’s failure to complete the access road, which would have established a self-contained subdivision. North also presented the testimony of home purchasers Matheson and James who stated that they had been unwilling to pay more for their houses in the Belle Meade subdivision because of the uncertainty of their value if the Unified Government did not reroute its trucks to a separate road as promised. The evidence would authorize the jury to find that North’s property diminished in value because the Unified Government failed to complete the access road as required by its agreement.

The Unified Government’s reliance on Darlington Corp. v. Evans, 88 Ga. App. 84 (76 SE2d 72) (1953), is misplaced. The plaintiff in Darlington Corp. sued for breach of an employment contract, but rather than ask for damages in the form of lost wages, he only claimed special damages resulting from being forced to sell certain property at less than fair market value in order to come to Atlanta and take the job with defendant. We found these damages could not be attributed to any action on the part of defendant and were not recoverable as a matter of law. Unlike Darlington Corp., North’s damages can be directly traced to the alleged breach of contract.

The Unified Government argues that the case of Paul v. Jones, 160 Ga. App. 671 (288 SE2d 13) (1981), shows that diminution in fair market value of North’s property was not the proper measure of damages. Paul involved a breach of contract action against a contractor for failure to properly construct a road in a residential subdivision. However, the holding in Paul is that the trial court did not err in instructing the jury not to consider the diminution in the value of the road itself because the road had been dedicated to the county by the plaintiff. See id. at 673 (1). Paul does not control whether diminution in value is the correct measure of damages under the facts presented here.

The court in Paul stated that the issue of the diminution of the fair market value of the plaintiff’s lots contiguous to the road had been allowed to go to the jury, see Paul, 160 Ga. App. at 673 (1), and so North also relies on Paul. But we agree with the Unified Government that that issue was not the subject of the appeal in Paul and is not binding. Nevertheless, we find the trial court here did not err by instructing the jury that the measure of damages was the diminution in fair market value of North’s property. The evidence shows a diminution in value of property, and it is not necessary to prove damages by lost profits where loss in value can be shown. See Whitfield v. Dept. of Transp., 248 Ga. App. 172, 174 (2) (546 SE2d 308) (2001).

Decided July 5, 2001

Ernest De Pascóle, Jr., Ellen W. Plight, for appellant.

Lancaster & McKillip, Douglas C. McKillip, Cook, Noell, Tolley, Bates & Michael, J. Vincent Cook, Jason B. Green, for appellees.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A0302.
    GREEN et al. v. STATE OF GEORGIA.
    (550 SE2d 736)
   Johnson, Presiding Judge.

After a bench trial, money found with marijuana in Bart Green’s apartment was forfeited to the state. Green claims that the trial court should have suppressed evidence of the money and dismissed the forfeiture action. Contrary to Green’s claims, the trial court did not err in refusing to suppress evidence of the money or to dismiss the forfeiture action.

On September 22,1998, a confidential informant, who had previously given reliable information, contacted a detective with the North Fulton Drug Task Force. The informant told the detective that Green, his neighbor, was in the process of bringing five pounds of marijuana to his own apartment. The detective and other task force officers immediately put Green’s apartment under surveillance. They saw Green arrive at the apartment complex, remove a large bag from his vehicle’s trunk and take the bag into his apartment.

The officers were still in telephone contact with the informant, who told them that someone would soon arrive to buy one pound of the marijuana from Green. The officers then saw a man identified as Brian Byung Woo arrive and go into Green’s apartment. A short time later, Woo left the apartment and appeared to have something stuffed in his pants. The officers stopped Woo and discovered a pound of marijuana hidden in his pants. Woo confirmed that he had bought the marijuana from Green.

The officers also saw Green’s girlfriend, Angel Sisson, arrive at and then leave Green’s apartment. The officers stopped her and found marijuana in her purse. She later stated that she had gotten the marijuana from Green.

During the surveillance, the officers saw Green going back and forth between his own apartment, number 402, and the confidential informant’s apartment, number 400. Believing that Green might have taken some of the marijuana into the informant’s apartment, the officers obtained a search warrant for the informant’s apartment.

When the officers executed the warrant, they found Green standing outside of apartment 400. They detained both Green and the informant, handcuffing them and having them sit on the couch in apartment 400. During the search of the informant’s apartment, Green verbally consented to a search of his neighboring apartment. He told the officers that he did not want to sit there all night, so they could go ahead and search his apartment.

In addition to Green’s consent to a search of his apartment, the officers obtained a search warrant, based on their surveillance information, for apartment 402. Upon searching Green’s apartment, the officers found and seized two pounds of marijuana, $24,750 and computer equipment.

The state filed a forfeiture action against the money and the computer equipment. Green moved to suppress the seized items, and the trial court denied the motion. The court eventually' entered its judgment that the state must return the computer equipment to Green, but that it may keep the money. Green appeals from the forfeiture of the money, claiming that the trial court should have suppressed the evidence and dismissed the action. Because his claims are without merit, we affirm the judgment of the trial court.

1. Green argues that the trial court erred in not dismissing the forfeiture action because the state violated the 20-day reporting time limit of OCGA § 16-13-49 (h) (1). That Code section provides: “When property is seized pursuant to this article, the sheriff, drug agent, or law enforcement officer seizing the same shall report the fact of seizure, in writing, within 20 days thereof to the district attorney of the judicial circuit having jurisdiction in the county where the seizure was made.” Green’s argument pursuant to this Code section is flawed because he has cited no evidence in the record proving that the state did not meet this 20-day reporting time limit. Absent any evidence supporting his claim, we will not presume error from a silent record.

Moreover, even if the state did in fact violate the 20-day limit, Green’s remedy would have been the state’s release of the money to him, rather than a dismissal of the entire action. Under OCGA § 16-13-49 (h) (3), if the state fails to meet the 20-day reporting time limit, “the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.” Thus, Green’s attempt to have the action dismissed, instead of seeking a timely return of the money pending further proceedings, was improper. For the foregoing reasons, we find no error in the trial court’s denial of Green’s motion to dismiss the forfeiture action.

2. Green contends that the trial court erred in denying his motion to suppress on the ground that he consented to the search of his apartment. He argues that his consent to the search was not voluntary because he was being illegally detained when he gave it.

It is true that in order for a consent to search to be valid, the consent must not be the product of an illegal detention. But contrary to Green’s argument, he was not being illegally detained when he gave consent. When executing a search warrant, officers may reasonably detain any person in the place searched in order to protect themselves from attack or to prevent the disposal of things described in the warrant. Here, the officers were executing the search warrant for apartment 400 when they found Green standing near the door of the apartment. Thus, they lawfully detained him while they conducted the search.

The mere fact that Green was being lawfully detained when he gave that consent does not render the consent involuntary. There simply is no evidence that Green consented as the result of coercion, duress or deceit. Rather, the idea that he would consent to a search of his apartment originated with Green himself when he told the officers that they could search his apartment. Under these circumstances, the trial court did not err in finding that Green voluntarily consented to the search of his apartment.

3. Because Green validly consented to the search of his apartment, his remaining arguments concerning the propriety of the search warrant provide no basis for reversing the trial court’s denial of his motion to suppress evidence. A valid consent to search eliminates the need for either probable cause or a warrant.

Moreover, even if Green had not consented to the search, it is apparent from the record before us that the drug task force officers had probable cause to suspect that Green had marijuana in his apartment. The information supplied by the confidential informant coupled with the officers’ surveillance corroboration of that information, including the discovery of marijuana on two people immediately after they left Green’s apartment, provided probable cause to suspect a crime. Thus, the search warrant for Green’s apartment, based on the officers’ information, was supported by probable cause.

Decided June 22, 2001

Reconsideration denied July 6, 2001.

Culp & Smith, John C. Culp, for appellants.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Gary S. Hulsey, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       See Cummings v. State, 233 Ga. App. 806, 808 (4) (505 SE2d 73) (1998).

        Bowers v. State, 221 Ga. App. 886, 888 (473 SE2d 201) (1996) (physical precedent).

       OCGA § 17-5-28.

       See Noland v. State, 178 Ga. App. 486, 488 (2) (343 SE2d 763) (1986) (physical precedent).

       See id.

        McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1996).

       See Butler v. State, 192 Ga. App. 710, 712 (1) (386 SE2d 371) (1989).

       See Martis v. State, 193 Ga. App. 375, 376 (2) (387 SE2d 643) (1989).


text:
    A01A0459.
    MINERS v. THE STATE.
    (550 SE2d 725)
   Johnson, Presiding Judge.

Shannon Miners appeals from his convictions of arson and insurance fraud. He admits that there is sufficient evidence that arson was committed at his house, but challenges the sufficiency of the evidence identifying him as the arsonist. He also contests the admission of certain evidence and a continuance of the trial. Because Miners has not shown reversible error, we affirm his convictions.

1. In reviewing the sufficiency of the evidence, we do not determine the credibility of the witnesses or resolve conflicts in the evidence. Those are matters for a jury. Instead, we look at the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

Viewed in that light, the evidence in this case shows, as Miners admits, that on April 11, 1997, his house in Ringgold burned as the result of arson. Firefighters who responded to the fire found that the house doors were locked, so they had to break in to look for victims. As they checked each room, the firefighters found no one in the house and noticed that some rooms appeared to have been emptied of belongings. In the attic, they found two partially melted gasoline containers and that gasoline had been poured there. The firefighters also found that natural gas was leaking into the basement where the steel gas supply pipe to the hot water heater had been broken by force.

In identifying Miners as the arsonist, the state relied on circumstantial evidence. Tina Brownfield, who had dated Miners, told a police detective that Miners made suspicious comments about his house prior to the fire. One weekend, he refused to leave Brownfield’s apartment, saying that he could not go home because something was going to happen to his house and he did not want to be there when it happened. On another' occasion, when Miners’ father called him at Brownfield’s apartment, Miners commented that he and Brownfield should go and see what was left of the house.

Additionally, Brownfield told the detective that after Miners was notified of the fire, he said that it was not supposed to have happened like that; that the house should have blown up rather than burned. Brownfield also informed the detective that Miners said he had been planning to do something to the house for a long time so he could rebuild it with insurance money.

, Brownfield testified at trial that she had told the detective the truth. She further testified she was with Miners on the night of the fire. And that he told her that she would be his alibi.

Miners’ former wife, Kim Miners, also testified at trial. She stated that before the fire, she noticed that Alabama paraphernalia belonging to Miners — pictures, prints, knives, hats, and a table — had been removed from the house. After the fire, Miners came to her place of employment and told her to tell investigators that everything, particularly the Alabama prints, had been in the house. And when she visited Miners at his father’s house, she saw various items that she had thought were in the house at the time of the fire. She also testified that she helped Miners fill out his insurance proof of loss form, and that on the form he listed the Alabama paraphernalia and other items that were not in the house at the time of the fire.

Police investigators obtained a search warrant for Miners’ father’s house. In the father’s house, they found numerous items that Kim Miners said had been in Miners’ own house prior to the fire, including adult movies, a table with an Alabama logo, Alabama hats, boxes of knives, and guns. The day after they executed the search warrant, the police returned to the father’s house, obtained consent from the father to search the house again, and then found more items identified by Kim Miners as having been in Miners’ house before the fire.

Three days after the fire, Miners agreed to submit to a polygraph examination, stipulating that its results would be admissible evidence at a trial. The polygraph examiner testified that Miners showed deception when he denied knowing who had set the fire, denied participating in setting the fire, and denied setting the fire himself.

Contrary to Miners’ claims, the circumstantial evidence presented by the state was sufficient to support the jury’s guilty verdicts. Whether the circumstances of a case are sufficient to exclude every reasonable hypothesis other than the guilt of the accused is primarily a question for the jury. We can disturb the jury’s verdict only where the evidence, even if circumstantial, is insupportable as a matter of law. Here, the circumstantial evidence was not legally insupportable and authorized a rational trier of fact to find Miners guilty beyond a reasonable doubt of arson and insurance fraud.

2. Miners argues that the court should have suppressed photographs of open drawers throughout the house, of the insides of closets, and of rooms that were not damaged by fire because they were obtained without a warrant on the night of the fire. The argument is without merit.

Reasonable privacy expectations may remain in fire-damaged premises, so official entries into those premises require a warrant, consent, or exigent circumstances. A burning residence is an exigency that justifies a warrantless entry, and officials may remain for a reasonable time to investigate the cause of the fire after it has been extinguished.

In the instant case, officials were justified in entering the burning house without a warrant to combat the fire. And after the fire was extinguished, because of the leaking gas in the basement, they properly waited for a gas company representative to arrive and declare the area safe. During that time, for about five hours after firefighters had left the scene, a fire investigator stayed at the house and took the pictures in question.

Miners claims that the photographs were unrelated to the cause or origin of the fire. On the contrary, the photographs are pertinent evidence in determining whether the fire was caused accidentally or intentionally; the absence of items from drawers and rooms could be construed as a suspicious circumstance indicating that the fire was not accidental. Because officials were properly in the house collecting evidence concerning the cause of the fire, we find no error in the trial court’s refusal to suppress the photographs.

3. In his initial appellate brief, Miners argued that the trial court erred in not suppressing evidence obtained from his father’s house pursuant to the search warrant because at the suppression hearing the state failed to introduce an exhibit that had been attached to the application for the search warrant and that had been relied on by the judge who issued the warrant. But in his reply to the state’s, Miners has expressly abandoned that argument, conceding that the exhibit was in fact entered into evidence at the suppression hearing.

Although he has abandoned his original argument, Miners has attempted to make a new argument in his reply brief. He now claims that some of the facts contained in the exhibit relied upon by the judge who issued the warrant were obtained from the search of Miners’ house on the night of the fire. So, he reasons, if the search of his house was illegal, then the warrant obtained as a result of that search would also be improper.

Miners may not, in his reply brief, assert a completely new argument that was not made in his original enumerations of error. Moreover, because we have held in Division 2 that there was no illegal search of his burning house, his new argument is without merit.

4. Miners contends that the court erred in not suppressing evidence obtained pursuant to the consent search of his father’s house, claiming that his father did not have authority to consent to a search of the bedroom where Miners was sleeping after the fire and to the extra room where Miners had stored some of his property.

Any person who possesses common authority over premises may consent to a warrantless search of those premises. Here, Miners’ father owned the house, and there is no evidence of any landlord-tenant relationship between him and his son. He accordingly had authority over the spare bedroom, where he also had stored items, and over the bedroom in which he was allowing his son to stay after the fire. Because his consent to the search of his own house was valid, the trial court did not err in refusing to suppress evidence found during that search.

5. Miners relies on Cuzzort v. State to argue that the trial court violated Uniform Superior Court Rule 3.1, OCGA § 17-8-1 and his due process rights by refusing to dismiss his case when it was not called for trial during the regular felony trial calendar. The case was scheduled for trial in the Lookout Mountain Judicial Circuit during a two-week felony trial term in March 1998. In the Lookout Mountain Judicial Circuit at that time, the system in place allowed the district attorney’s office to prepare the trial calendar and to decide in what order to call cases for trial. Because the district attorney’s office was unable to locate a witness, it did not call Miners’ case for trial during the felony calendar. Instead, the case was specially set for trial three weeks later, during a misdemeanor trial calendar.

Decided June 22, 2001

Reconsideration denied July 6, 2001

Steven M. Ellis, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

In Cuzzort, the Supreme Court held that the Lookout Mountain Judicial Circuit’s system violated USCR 3.1 by allowing the district attorney to make case assignments to the circuit’s judges, and the system violated OCGA § 17-8-1 by allowing the district attorney to call cases out of the order listed on the trial calendar. Because Cuzzort was an interlocutory appeal, the Supreme Court did not rule on whether the violations of USCR 3.1 and OCGA § 17-8-1 would mandate the reversal of a conviction under the Lookout Mountain Judicial Circuit’s system, nor did it consider whether the system violated constitutional due process.

In the recent case of State v. Wooten, the Supreme Court considered those two matters. The Supreme Court held that the system did not violate due process under either the Georgia Constitution or the United States Constitution. Moreover, the Supreme Court held that it was highly improbable that the nonconstitutional errors in the circuit’s system contributed to the jury’s guilty verdict in that case.

In the instant case, Miners is correct that there were violations of USCR 3.1 and OCGA § 17-8-1 in that the district attorney was allowed to decide not to call the case for trial even though it was on the trial calendar. But, under Wooten, there is no due process violation, and we find that it is highly improbable that the nonconstitutional errors in the system contributed to the guilty verdicts in this case. We therefore will not reverse Miners’ arson and insurance fraud convictions on this ground.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Rainey v. State, 179 Ga. App. 584, 586 (1) (347 SE2d 341) (1986).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Lathan v. State, 241 Ga. App. 750, 751 (1) (526 SE2d 350) (2000).

       Id.

       See Stanford v. State, 236 Ga. App. 597, 598 (1) (512 SE2d 708) (1999); Steidl v. State, 215 Ga. App. 17, 18-19 (449 SE2d 644) (1994); Hart v. State, 184 Ga. App. 300, 301 (361 SE2d 277) (1987).

        Davis v. State, 178 Ga. App. 760, 761-762 (344 SE2d 730) (1986).

       Id.

       See Waters v. State, 174 Ga. App. 916, 917 (1) (331 SE2d 893) (1985) (assistant fire chief suspicious of fire’s origin in part because refrigerator was almost empty in house where three people resided).

       See Mobley v. Sewell, 226 Ga. App. 866, 869 (487 SE2d 398) (1997); Brown v. State, 198 Ga. App. 590, 591 (4) (402 SE2d 341) (1991).

        Smith v. State, 264 Ga. 87 (2) (441 SE2d 241) (1994).

       See id.; Howard v. State, 207 Ga. App. 125, 126 (1) (427 SE2d 96) (1993).

       271 Ga. 464 (519 SE2d 687) (1999).

       Id. at 465 (2), (3).

       273 Ga. 529 (543 SE2d 721) (2001).

       Id. at 532 (2).

       Id. at 532-533 (3).


author: Andrews, Presiding Judge. Eldridge, Judge,

text:
    A01A0301.
    CLARK v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (552 SE2d 445)
   Andrews, Presiding Judge.

Mary R. Clark appeals from the trial court’s order granting summary judgment to the Board of Regents of the University System of Georgia (BOR) due to Clark’s failure to comply with the ante litem notice requirements of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (Act). We agree with the judgment of the trial court and affirm.

Clark and Joseph H. Bouton were involved in a car accident on October 15, 1997, when Bouton unsuccessfully attempted to pass three vehicles. The van that Bouton was operating struck Clark’s car as she was turning left into a driveway. Bouton, cited for improper passing, entered a nolo contendere plea to the charge. At the time of the incident, Bouton allegedly was a University of Georgia employee, operating a van leased by the University from Watkins Chevrolet Olds Leasing.

Nearly two years after the accident, Clark sued the BOR and Robert Watkins d/b/a Watkins Chevrolet Olds Leasing. Clark, however, did not provide pre-suit notice of her personal injury claim to the Department of Administrative Services and the BOR until on or after June 15, 1999, about 20 months after the date of loss.

The Act precludes any person, firm, or corporation from asserting a tort claim against the State under that Act without first giving notice of the claim in the manner mandated by statute. OCGA § 50-21-26 (a). The Act requires: “(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered.” OCGA § 50-21-26 (a) (1). The Act further provides: “No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection.” OCGA § 50-21-26 (3). Substantial compliance with the ante litem notice requirements of the Act is not sufficient. McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997). “Ante litem notice is a condition precedent to the filing of any suit for which the law requires it.” Howard v. Miller, 222 Ga. App. 868, 871 (1) (b) (476 SE2d 636) (1996).

Without question, Clark failed to timely comply with the statutory ante litem notice requirements of the Act. Nevertheless, Clark contends that summary judgment was precluded by material issues of disputed fact. Clark claims that the time for filing suit did not commence until March 1, 1999, when she discovered that Bouton was a State employee. She argues that by failing to disclose the identity of his employer, Bouton engaged in “concealment per se” and committed such fraud as would toll the statute of limitation. She contends that nothing in the police report or the traffic citation put her on notice that Bouton was a University employee or that the van had been leased by the BOR.

To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.

(Punctuation omitted.) Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 100 (2) (406 SE2d 807) (1991). Notwithstanding Clark’s claim to the contrary, the record contains absolutely no evidence that by employing trick or artifice, Bouton concealed the true identity of his employer or committed such fraud as would debar or deter her from timely bringing the action. See OCGA § 9-3-96; Edmonds v. Bates, 178 Ga. App. 69, 71 (342 SE2d 476) (1986). On the contrary, it is undisputed that the motor vehicle accident report accurately lists the driver’s name, the proper insurance company, and the correct owner of the vehicle. Providing correct information to a traffic investigator hardly constitutes deception or “concealment per se.” See Wilson, 200 Ga. App. at 101.

The Act requires notice within 12 months of the date of the loss, not within 12 months of the date of the discovery of the identity of the tortfeasor’s employer. “A plaintiff cannot ‘sit quietly by for a length of time exceeding that named in the statute of limitations, and avoid its operation and save (its) cause of action by the mere allegation that (it) made the discovery’ only recently. [Cit.]” Jones v. Bd. of Regents &c. of Ga., 219 Ga. App. 448, 449 (1) (466 SE2d 869) (1995). Because notice of the claim was not presented to the State in the manner required by statute within 12 months of October 15, 1997, the jurisdictional prerequisite to suit was not satisfied and the superior court properly granted summary judgment to the BOR. See Howard, 222 Ga. App. at 871 (1) (b). We note that the procedural issues addressed by the dissent were raised neither below nor here.

Judgment affirmed.

Johnson, P. J., Smith, P. J., Ruffin, Miller and Ellington, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I respectfully dissent. The General Assembly in crafting the State Tort Claims Act clearly, unambiguously, and plainly stated: “[n]o action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection.” Ga. L. 1992, p. 1883, § 1; Ga. L. 1994, p. 1717, § 12; Ga. L. 1998, p. 128, § 50; OCGA § 50-21-26 (a) (3); Williams v. Dept. of Human Resources, 272 Ga. 624 (532 SE2d 401) (2000); Henderson v. Dept. of Transp., 267 Ga. 90 (475 SE2d 614) (1996); Kim v. Dept. of Transp., 235 Ga. App. 480, 482 (510 SE2d 50) (1998); Bradley v. Ga. Institute of Technology, 228 Ga. App. 216, 219 (1) (c) (491 SE2d 453) (1997); Howard v. State of Ga., 226 Ga. App. 543, 544-545 (1) (487 SE2d 112) (1997). Such plain language limits the subject matter jurisdiction not only of the trial court but also of the appellate courts where the notice has not been given as a condition precedent to suit to have jurisdiction limited to deal only with the issue of its own subject matter jurisdiction; thus, the trial court has limited subject matter jurisdiction to dismiss for lack of subject matter jurisdiction only. OCGA § 9-11-12 (b) (1); Kim v. Dept. of Transp., supra at 482; Bradley v. Ga. Institute of Technology, supra at 219; Howard v. State of Ga., supra at 543-544. Such express limitation of subject matter jurisdiction of the courts is a procedural matter that does not reach the merits. See generally Henderson v. Dept. of Transp., supra at 90.

Summary judgment constitutes an adjudication on the merits and is not the appropriate procedural vehicle to deal with pleas of abatement, a dilatory plea, i.e., lack of subject matter jurisdiction, lack of jurisdiction of the person, venue, insufficiency of process, insufficiency of service of process, lack of indispensable party, which are dilatory defenses that do not cause an adjudication on the merits but a dismissal without prejudice. See State Bar of Ga. v. Beazley, 256 Ga. 561, 563 (1) (350 SE2d 422) (1986); Nat. Heritage Corp. v. Mount Olive Mem. Gardens, 244 Ga. 240, 242-243 (260 SE2d 1) (1979); McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552) (1977); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974); Larwin Mtg. Investors v. Delta Equities, 129 Ga. App. 769, 770 (1) (201 SE2d 187) (1973); Hemphill v. Con-Chem, 128 Ga. App. 590, 591-593 (197 SE2d 457) (1973). Therefore, the trial court erred in granting summary judgment instead of dismissal without prejudice because: (1) it lacked subject matter jurisdiction to adjudicate the merits of the case; and (2) summary judgment is not the appropriate procedure to deal with lack of subject matter jurisdiction, and the judgment should be reversed and vacated.

Decided July 6, 2001

Ronny E. Jones, for appellant.

Thurbert E. Baker, Attorney General, Allyson G. Krause, Assistant Attorney General, for appellee.

As a practical matter in this case, since the 12 months are long past and notice cannot now be given, the requirement to give notice as a condition precedent to suit has the effect of a statute of limitation, because the window of opportunity to sue the State has now closed. However, in cases of minors, incompetents, or others under a disability or where the dismissal comes within the 12-month window of opportunity, the plaintiff could now give the proper statutory notice to the State and satisfy the condition precedent. See Howard v. Dept. of Transp., supra at 544-545.

       The State mistakenly contends that this Court lacks jurisdiction to decide this case. While it is true that a dismissal order was entered several months before the order on summary judgment, the earlier order did not dispose of all claims and all parties. Since that order did not make the express determination and express direction required by OCGA § 9-11-54 (b), it was not a final judgment and did not terminate the action since the case remained pending against a co-defendant. Hadid v. Beals, 233 Ga. App. 5, 6 (502 SE2d 798) (1998); Knowles v. Old Spartan Life Ins. Co., 213 Ga. App. 204, 205 (2) (444 SE2d 136) (1994).


author: Blackburn, Chief Judge.

text:
    A01A0569.
    HUDSON v. WHITED.
    (552 SE2d 447)
   Blackburn, Chief Judge.

Following the grant of summary judgment to Ronald Hudson’s uninsured motorist insurance carrier, Hudson appeals, contending that the trial court erred by reducing the limits of liability under the UM policy to zero. We agree and reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

So viewed, the evidence shows that, while working for his employer, Hudson was involved in an automobile accident with Whited. Hudson suffered from herniated cervical disks requiring surgery. Hudson’s medical expenses totaled at least $31,371, with lost wages of at least $43,076. Hudson has received in excess of $33,475 in workers’ compensation benefits.

Appellee Safeco Insurance Company issued a policy to Hudson which provided for $15,000 of uninsured motorist coverage. With respect to such coverage, the policy provided the following limitations:

LIMITS OF LIABILITY ... B. ... The limit of liability shall be reduced by all sums: ... 2. Paid or payable because of the bodily injury under any of the following or similar law: a. workers’ compensation law. . . . E. We will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any of the following or similar law: 1. Workers’ compensation law. . . . EXCLUSIONS . . . B. This coverage shall not apply directly or indirectly to benefit: 1. Any insurer or self-insurer under any of the following or similar law: a. workers’ compensation law.

Relying upon the “Limits of Liability” § B.2.a. provision, the trial court found that, because Hudson had received approximately $30,000 in workers’ compensation benefits, the limit of liability under the Safeco policy was reduced to zero. With a zero limit of liability, the trial court granted summary judgment to Safeco.

Georgia’s Uninsured Motorist Statute requires insurers to offer coverage which undertakes “to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits [not less than specified amounts].” OCGA § 33-7-11 (a) (1). Thus, insurance provisions which reduce an insurer’s liability by amounts payable from other insurance are contrary to the statute if they thwart the insured’s ability to recover “all sums” the insured is legally entitled to recover. See Johnson v. State Farm &c. Ins. Co.; State Farm &c. Ins. Co. v. Murphy; Travelers Indem. Co. v. Williams.

In Johnson, plaintiff was awarded over $190,000 in damages. Johnson, supra. Plaintiff’s UM carrier, who had provided a coverage limit of $300,000, sought to enforce a policy provision which would reduce the verdict by $21,643.10 for medical expenses the carrier had already paid under its policy. Id. We enforced the provision, reasoning that since the available coverage limit far exceeded the insured’s actual losses, the insured was certain to receive “all sums” she was legally entitled to, even with the reduction. Id. at 543-544. Applying the provision would only prevent the insured from receiving more than her actual damages. Id. at 544. In so holding, however, we warned that:

Such a clause [would] not [be] enforceable when actual damages are greater than the policy limits because it would then operate to reduce recovery to an amount below the judgment, violating the requirement that uninsured motor vehicle insurance contracts undertake “to pay the insured all sums which he shall be legally entitled to recover as damages . . . within limits (of the policy).”

(Emphasis in original.) Id.

Based on the evidence in the record, Hudson’s actual damages will likely exceed Safeco’s policy limits of $15,000. Hudson has incurred over $30,000 in medical expenses and over $40,000 in lost wages. General damages have yet to be determined. Thus, any reduction in the amounts recoverable, either through a reduction in the limit of liability under § B.2.a., or a reduction in the amounts to be paid under § E.I., is unenforceable as it would hinder Hudson’s ability to recover all sums he may be shown to be legally entitled to.

Northbrook Property &c. Ins. Co. v. Merchant does not support Safeco’s position. In Northbrook, we upheld a policy provision which provided a set-off for benefits the insured was entitled to receive for workers’ compensation. Id. at 275. It appears that we did not consider whether the actual damages the insured was legally entitled to exceeded the policy limits. We did, however, emphasize that the “legislature’s purpose in enacting Georgia’s uninsured motorist statute was to protect insureds as to actual losses.” Id. We found that enforcing the particular policy provision in that case was “not precluded by statute or contrary to the public policy of this State.” Id. at 276.

Here, in contrast, enforcing the provision would not protect the insured as to his actual losses, and, as a result, the provision is precluded by statute and is contrary to the public policy of this State. In addition, the Johnson court considered Northbrook, along with the other Georgia cases which have dealt with the issue herein, and thereafter concluded that any provision which hinders the insured’s ability to recover all sums which the insured is entitled to is unenforceable. Johnson, supra at 541-545.

Decided July 6, 2001.

Perkins & Perkins, Ann-Margaret Perkins, for appellant.

Kinney, Kemp, Sponcler, Joiner & Tharpe, L. Hugh Kemp, for Whited.

Hall, Booth, Smith & Slover, Thomas A. Graham, Terrell W. Benton III, for Safeco Insurance Company.

Based on the record to date, it appears that Hudson’s actual damages will far exceed the $15,000 limits of UM coverage. We note, however, that the discovery process and trial of this case may indeed reveal that the damages connected to this accident are within the policy limits. In that event, Safeco may be able to utilize the policy provisions to prevent Hudson from receiving a double recovery. However, we cannot now determine, as a matter of law, that Hudson will be able to recover all sums he is entitled to (within policy limits) if the limitations provisions are enforced. Because the provisions operate to reduce Safeco’s liability where Hudson’s actual damages appear to exceed the limits set out in the policy, they are contrary to the UM statute. Accordingly, summary judgment is not warranted.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Under the version of OCGA § 33-7-11 (a) (1) (A) in effect at the time of the accident, no automobile liability insurance policy could be written with a limit of less than $15,000. Effective January 1, 2001, the minimum limit is $25,000. ■

        Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541 (455 SE2d 91) (1995).

        State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 714-715 (177 SE2d 257) (1970).

        Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 416 (167 SE2d 174) (1969).

       Furthermore, the “Exclusions” B.l.a. provision does not provide relief for Safeco because, as Hudson correctly points out, the workers’ compensation carrier will be unable to recover for any UM benefits paid. Stewart v. Auto-Owners Ins. Co., 230 Ga. App. 265, 268 (495 SE2d 882) (1998). Thus, Safeco’s coverage cannot benefit the workers’ compensation carrier.

        Northbrook Property &c. Ins. Co. v. Merchant, 215 Ga. App. 273 (450 SE2d 425) (1994).


author: Andrews, Presiding Judge. Miller, Judge, Eldridge, Judge,

text:
    A01A0590.
    WOODY v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (551 SE2d 836)
   Andrews, Presiding Judge.

At issue in this case is an automobile insurance policy issued by Georgia Farm Bureau Mutual Insurance Company which contains a provision excluding liability coverage where the insured vehicle was knowingly used without a valid driver’s license. Although the exclusion is unambiguous and enforceable in circumstances where it does not violate public policy, we conclude the exclusion is unenforceable in this case because it would violate the public policy established by Georgia’s compulsory insurance law that innocent injured persons have access to insurance funds to satisfy their judgments. Accordingly, we reverse the trial court’s order enforcing the exclusion and granting summary judgment in favor of Georgia Farm.

It is undisputed that the driver of the insured vehicle, Scott Beck, was knowingly using the vehicle without a valid driver’s license when he struck the rear of a vehicle driven by Richard Woody. Richard Tuggle, who was a passenger in the vehicle driven by Beck, sued Beck and Woody for injuries he sustained in the accident claiming that their joint negligence caused the accident. Woody answered, denied he was negligent, and cross-claimed against Beck alleging that Beck’s negligence caused the injuries suffered by Woody in the accident. Although Woody’s vehicle had liability insurance coverage, Woody chose under OCGA § 33-7-11 (a) (3) not to purchase uninsured motorist coverage.

Georgia Farm entered a defense of Beck under a reservation of rights and filed a declaratory judgment action against Beck, Woody, and Tuggle seeking a ruling that the unlicensed driver exclusion was enforceable and excluded liability coverage under the policy. In granting Georgia Farm’s motion for summary judgment, the trial court held that the exclusion was enforceable and that it did not contravene the public policy established by the compulsory insurance law. The trial court found that, even though enforcing the exclusion would leave Woody without any liability insurance funds to satisfy a judgment for his injuries, this did not contravene public policy because Woody could have purchased uninsured motorist coverage but chose not to do so.

We agree that the unlicensed driver exclusion is unambiguous and enforceable in circumstances where it does not violate public policy. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 717 (470 SE2d 659) (1996); Southeastern Security Ins. Co. v. Empire Banking Co., 230 Ga. App. 755 (498 SE2d 282) (1998). However, the Supreme Court’s holding in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), compels the conclusion that to enforce the exclusion in this case against Woody would leave Woody without access to insurance funds, and that this would contravene the public policy served by the compulsory insurance law to provide access to insurance funds for innocent injured persons. Id. at 341.

Neese dealt with enforcement of a different liability coverage exclusion which applied when the insured driver was attempting to avoid apprehension or arrest, but the public policy issues are the same. While attempting to elude police in a high-speed chase, Neese ran head-on into a vehicle driven by Blalack, who was killed in the collision. Blalack had no automobile insurance. The insurer, Cotton States, denied coverage based on the exclusion. The Supreme Court examined the public policy interests that the compulsory insurance law was enacted to serve and concluded that the exclusion was directly contrary to the interest that accident victims like Blalack have access to insurance funds to satisfy their judgments. Id. at 341. Recognizing that the compulsory insurance law established a public policy that “innocent persons who are injured should have an adequate recourse for the recovery of their damages,” the Court concluded that the exclusion was unenforceable as to Blalack on grounds of public policy. (Punctuation omitted.) Id. The Court also recognized that Blalack had no automobile insurance and thus no uninsured motorist coverage, but stated, “Even if he had had liability insurance, under our law he could have chosen not to purchase uninsured motorist protection.” Id.

The trial court’s conclusion that no public policy is violated by enforcing the exclusion because Woody chose to reject uninsured motorist coverage cannot be squared with the Supreme Court’s holding in Neese. Accordingly, the grant of summary judgment in favor of Georgia Farm must be reversed.

Judgment reversed.

Johnson, P. JSmith, P. J., Ruffin and Ellington, JJ., concur. Miller, J., concurs and concurs specially. Eldridge, J., dissents.

Miller, Judge,

concurring specially.

I concur with the majority opinion, but I write separately to address concerns raised by the dissent.

The dissent reasons that requiring the offending vehicle’s insurance company to pay for injuries to an uninsured victim is “disparate treatment,” for other victims who choose and pay for uninsured motorist coverage will not be able to recover from the offending vehicle’s insurance company. As pointed out by the majority, Cotton States Mut. Ins. Co. v. Neese held that in enacting a law requiring car owners to carry compulsory liability insurance, the legislature sought to “ensure compensation for innocent victims of negligent motorists.” Thus, the legislature, long ago made the policy decision to allow uninsured victims to recover in such circumstances, regardless of why they were uninsured. In fact, in Neese the victim who was allowed to recover had chosen not only to have no uninsured motorist coverage, but had chosen to have no insurance at all. Thus, the policy decision of allowing such a victim to recover was made by legislative enactment as interpreted by the Supreme Court of Georgia 16 years ago.

The dissent then concludes that “such disparate treatment would create uncertainty for the insurer and increase premiums to cover such unknown risk to the insurer.” The dissent implies that such will unfairly lead to lower insurance premiums for the victim who rejects uninsured motorist coverage and to higher premiums for consumers at large. I disagree. Nothing in the legislative enactments since Neese has changed the underlying policies set forth in Neese. Contrary to the dissent’s statements in its first footnote (n. 7), the overriding consideration in Neese was the observation that “our compulsory insurance law was enacted to serve that very interest” of compensating innocent accident victims. That is still the overriding consideration of the current compulsory insurance law. I share the dissent’s concern regarding insurers’ uncertainty leading to an increase in premiums for consumers; however, there is no evidence to suggest that this will happen in light of the fact that this has been the status of insurance law in Georgia for the past 16 years. This Court is duty bound to preserve the public policy of allowing compensation for innocent victims of automobile accidents, notwithstanding the victims’ failure to purchase automobile insurance, specifically uninsured motorist protection.

Eldridge, Judge,

dissenting.

Respectfully, I dissent.

The majority construes the public policy of Georgia as invalidating any and all valid and otherwise enforceable automobile insurance contract exclusions, which have the effect of voiding all coverage when there has been personal injury and property damage, because under the Georgia Motor Vehicle Accident Reparations Act, (“No-Fault Insurance”) since repealed, the Supreme Court of Georgia held in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (1) (329 SE2d 136) (1985), that, under such law providing for compulsory insurance liability and personal injury protection, such compulsory insurance law mandated as public policy that innocent injured persons have access to insurance funds to satisfy their judgments.

1. In Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 717 (5) (470 SE2d 659) (1996), the Supreme Court of Georgia held that, in cases of clear and unambiguous exclusions contained in a policy, the insurer can exclude from coverage unlicensed drivers who have permission to drive the vehicle. “There is no question that an insurer has a right to restrict the operation of vehicles insured by it to persons legally qualified to operate an automobile. All semblance of ambiguity is removed by an exclusion relieving the insurer from liability should the vehicle be driven in violation of any law as to drivers’ licenses.” (Citations omitted.) Id. at 717 (5). See also Southeastern Security Ins. Co. v. Empire Banking Co., 230 Ga. App. 755, 756 (1) (498 SE2d 282) (1998). As in Hurst v. Grange Mut. Cas. Co., supra, in this case, Beck had Miller’s permission to drive Miller’s car.

Where, however, as in this case, the special endorsement clearly creates a separate and additional special exclusion for unlicensed drivers, such exclusion creates an unambiguous exclusion that is not construed in conjunction with any issues of permission of the insured. Hurst v. Grange Mut. Cas. Co., supra. Where, as here, the exclusion for lack of a driver’s license does not depend upon any reasonable belief as to permission, the exclusion for lack of a valid driver’s license is valid. Southeastern Security Ins. Co. v. Empire Banking Co., supra at 756.

2. In 1974, the General Assembly enacted the Motor Vehicle Accident Reparations (“No-Fault”) Act, which provided insurance coverage in virtually all circumstances to an injured victim. Ga. L. 1974, p. 113'(OCGA § 33-34-1 et seq.). At the same time, the General Assembly enacted a compulsory liability insurance law. Ga. L. 1974, p. 113 (OCGA §§ 33-34-4; 33-34-37 (a); 40-9-37 (a)); Pearce v. Southern Guaranty Ins. Co., 246 Ga. 33, 36-37 (268 SE2d 623) (1980).

In determining the public policy of this state regarding an exclusion from coverage, the Supreme Court held that “the advent of compulsory motor vehicle liability insurance in this state established the public policy that ‘innocent persons who are injured should have an adequate recourse for the recovery of their damages.’ [Cit.]” Cotton States Mut. Ins. Co. v. Neese, supra at 338 (1); see also Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983).

In dicta, the Supreme Court stated, “[t]he ‘unlicensed driver exclusion’ has been found to be within public policy when applied in a situation wherein the victims of the unlicensed driver had access to insurance funds. Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864, 865 (389 SE2d 370) (1989)”; thus, it indicated approval of the holding of such cited case. (Citation omitted.) Hurst v. Grange Mut. Cas. Co., supra at 717 (5).

To determine the public’s competing identifiable interests in the matter, the court should look to three considerations: “(1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.” (Citation and punctuation omitted.) Travelers Ins. Co. v. Progressive Preferred Ins. Co., supra at 864; see also Florida Intl. Indem. Co. v. Guest, 219 Ga. App. 222, 225 (464 SE2d 847) (1995). “There can be no genuine dispute that the discouragement of insureds against allowing unlicensed drivers to operate insured vehicles both limits the insurer’s risks and thereby keeps premiums low, and improves safety on the highways.” Travelers Ins. Co. v. Progressive Preferred Ins. Co., supra at 864; see also Cotton States Mut. Ins. Co. v. Neese, supra at 341.

Access to uninsured motorist insurance coverage constitutes access to insurance funds within such public policy considerations, satisfying such public policy. See Travelers Ins. Co. v. Progressive Preferred Ins. Co., supra at 865; see also Southeastern Security Ins. Co. v. Empire Banking Co., supra at 756 (2); State Farm &c. Co. v. Drawdy, 217 Ga. App. 236, 239 (2) (456 SE2d 745) (1995). Where, as here, the “particular victim” voluntarily and knowingly rejected UM coverage under his policy available to him, which is required to be offered to each motor vehicle policyholder in this state, such “particular victim” had access to insurance funds, because such victim’s own conscious rejection of UM coverage is the reason for “lack of accessibility to other insurance funds by a particular victim.” Such rejection of UM coverage has the same effect as choosing not to give notice and serve the UM carrier when such access to insurance funds was available and, thus, fails to satisfy the statutory requirements for the UM insurer to be liable to pay any judgment. See Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614-615 (1) (440 SE2d 242) (1994). Such conscious rejection of coverage should not justify invalidating an unlicensed driver exclusion when the victim and the insured rejecting coverage are the same person. OCGA § 33-7-11 (a) (3). See in general Travelers Ins. Co. v. Progressive Preferred Ins. Co., supra at 865. To hold otherwise would be to treat similarly situated insurers unequally, when both have exclusions of unlicensed drivers. This is because the insurer’s coverage would not depend upon the clear, express, and unambiguous exclusion of an insurance contract written for an insured, but would depend upon whether or not, factually and legally, a third party properly accepted or rejected, under their own motor vehicle liability policies, UM coverage and would allow lower premiums to the insured who rejects UM coverage rather than to the policy with exclusions from coverage. Further, Miller, as the insured vehicle owner, had no tort liability for the borrowed vehicle driven by Beck, an unlicensed driver with permission; absent allegations and showing of negligent entrustment by Miller creating tort liability of the insured, Miller, the insured, has no liability. See Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., supra at 356. Such disparate treatment would create uncertainty for the insurer and increase premiums to cover such unknown risk to the insurer.

Decided July 6, 2001.

Paula O. Free, for appellant.

Whelchel & Dunlap, Thomas M. Cole, for appellee.

       Beck was driving the vehicle with the express permission of the owner, Ronnie Miller.

       Enforcement of the coverage exclusion against Tuggle was not at issue. The record shows that substituted service pursuant to former OCGA § 9-11-4 (d) (7) (now (e) (7)) was made on Tuggle in the declaratory judgment action, but the record does not show any answer or other response by Tuggle to the action.

       It may be assumed for purposes of this decision that Woody was an innocent victim of the collision. Georgia Farm does not contend that Woody was negligent, nor has it attempted to establish such negligence or that such negligence was the proximate cause of the collision. Neese, 254 Ga. at 341, n. 12.

       254 Ga. 335, 337 (1) (329 SE2d 136) (1985).

       Id. at 341 (1).

       Cf. OCGA § 33-34-4.

       The General Assembly repealed the No-Fault Act in 1987. Ga. L. 1987, p. 542, § 2. In 1991, the General Assembly enacted a new compulsory insurance statute without no-fault coverage. Ga. L. 1991, p. 1608, § 1.12; OCGA § 33-34-1 et seq. All of the early cases that recite the public policy basis for rejecting exclusions, where compulsory insurance was mandated, were decided under the No-Fault Act now repealed. Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 237 (392 SE2d 3) (1990); Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987); Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 694 (353 SE2d 186) (1987); GEICO v. Dickey, 255 Ga. 661, 662 (340 SE2d 595) (1986); Cotton States Mut. Ins. Co. v. Neese, supra; Anderson v. Southeastern Fidelity Ins. Co., supra. These cases turned on the exposure of the insured to liability and not on compensation to the victim as the overriding consideration; if compensation to the victim was the overriding consideration, then no exclusion would be possible. “However, since Georgia law does not require liability insurance in every case, we [conclude] that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy.” Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., supra at 356.
      Query: Does the same public policy that previously existed under different insurance statutes now remain unchanged under the present, radically different statutory scheme? However, under the facts and circumstances of this case, such issue need not be addressed.

       “Ownership of a vehicle alone is not sufficient to establish an owner’s liability.” (Citations omitted.) Grant v. Jones, 168 Ga. App. 690, 691 (310 SE2d 272) (1983). If either a master, servant, or agency relationship exists between the owner and the driver when the vehicle is being used for the benefit of the owner, then based upon the doctrine of respondeat superior or agency, there may be tort liability. Cotton v. Toole, 183 Ga. App. 547-548 (1) (359 SE2d 368) (1987); Shmunes v. Gen. Motors Corp., 146 Ga. App. 486, 488 (3) (246 SE2d 486) (1978).

       An owner/bailor may be held liable for negligent entrustment of a vehicle premised upon general tort or statutory grounds. . . . Liability for negligent entrustment flows from the negligent act of the owner permitting another to drive [his] vehicle when the owner knows the driver to be either incompetent or habitually reckless. Moreover, to recover under this theory, an owner’s negligence must concur, as part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.
      (Citations and punctuation omitted.) Alamo Rent-A-Car v. Hamilton, 216 Ga. App. 659, 660 (455 SE2d 366) (1995).


author: Ellington, Judge.

text:
    A01A1234.
    ARNOLD v. THE STATE.
    (552 SE2d 454)
    Decided July 6, 2001.

      Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

      Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.
   Ellington, Judge.

A Fulton County jury convicted Kirk Arnold of aggravated assault, OCGA § 16-5-21 (a) (2). Arnold appeals from the denial of his motion for new trial, contending he must be retried because the bailiff in charge of his jury had not taken the oath required by OCGA § 15-12-140. Finding no error, we affirm.

The failure to give bailiffs the oath required by OCGA § 15-12-140 is reversible error. Jackson v. State, 152 Ga. 210, 213 (3) (108 SE 784) (1921). However, the Code does not require that bailiffs be administered this oath before each trial. See OCGA § 15-12-140. Further, Arnold bears the burden of showing affirmatively that his bailiff was not sworn, and “where bailiffs take charge of juries, there is a presumption that they were regularly sworn.” (Citations and punctuation omitted.) Wilson v. State, 227 Ga. App. 59, 63 (4) (488 SE2d 121) (1997). In this case, the bailiff responsible for Arnold’s jury testified that she and her fellow deputies are sworn by a judge at the beginning of each new term of court. She recalled being sworn most recently by Judge Lovett during roll call. Because Arnold failed to rebut the presumption that his bailiff was properly sworn, the trial court properly denied his motion for new trial. Id. at 64.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A0808.
    GEORGE L. SMITH II GEORGIA WORLD CONGRESS CENTER AUTHORITY v. SOFT COMDEX, INC.
    (550 SE2d 704)
   Ellington, Judge.

The George L. Smith II Georgia World Congress Center Authority (“Authority”) appeals from the grant of summary judgment to Soft Comdex, Inc., formerly known as Interface Group, Inc. (“Comdex”), on its indemnification cross-claim in a personal injury action. The plaintiff in the underlying case, Ernest Acord, was injured when he walked through a parking lot on his way to a Comdex convention in the Georgia World Congress Center (“Center”) and was hit on the head by a mechanical “parking arm.” Acord sued both the Authority and Comdex for his injuries. The Authority answered and filed a cross-claim for indemnification against Comdex. Comdex settled with Acord before trial, and a jury subsequently returned a defense verdict for the Authority. When Acord challenged the verdict, however, the Authority settled with Acord for $25,000.

The Authority’s cross-claim seeks indemnification from Comdex for settlement costs, litigation expenses, and attorney fees. Comdex filed a motion for summary judgment on the cross-claim, arguing that it was not liable for indemnification under the parties’ licensing contract because Acord’s injuries occurred in a Georgia Dome parking lot, not on the licensed premises, and occurred before Acord was admitted to the Center. The Authority filed a cross-motion for summary judgment. After conducting a hearing, the trial court granted summary judgment to Comdex on the indemnification cross-claim. Because we find that the application of the parties’ contract to the undisputed facts demonstrated that Comdex was not liable for indemnification as a matter of law, we affirm the trial court’s order.

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court. An ambiguity exists only if after the application of the pertinent rules of interpretation, it remains uncertain which of two or more possible meanings the parties intended. No construction is required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.

(Citation, punctuation and footnotes omitted.) Tucker Materials v. Devito Contracting &c., 245 Ga. App. 309, 310 (535 SE2d 858) (2000). See also OCGA §§ 13-2-1; 13-2-2 (statutory rules of construction). Further, the scope of a written indemnification contract is a question of law for the court, which must strictly construe the contract against the indemnitee, in this case the Authority. Park Pride of Atlanta v. City of Atlanta, 246 Ga. App. 689, 691 (1) (541 SE2d 687) (2000); Tokheim Corp. v. First American Bank &c., 206 Ga. App. 105, 107 (1) (424 SE2d 54) (1992). On appeal from the grant of summary judgment, this Court reviews the record de novo. Sagon Motorhomes v. Southtrust Bank of Ga., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

Viewed in light of these precepts, the record shows that Comdex entered into a licensing contract with the Authority to use the Center for a computer show from April 19,1995, through April 30,1995. The contract was drafted by the Authority and stated in part as follows: “[The] Authority hereby grants to [Comdex] ... a license for access to the common areas of the [Center] made available to [Comdex] and for use of the facilities in the Center which are described in Paragraph A.3 (hereinafter ‘facilities’).” The contract defined “Center” as “the property operated as the Georgia World Congress Center and includes the facilities listed in Paragraph A.3.” (Emphasis supplied.) Paragraph A.3 listed the following areas: eight exhibit halls, a registration hall, an auditorium, a ballroom, and several rooms in the conference center. “Common areas of the Center” included the “exterior, the entrance concourse, meeting room and exhibit hall concourses, loading docks, and marshalling [sic] facilities.” Further, the contract stated that

[Comdex] waives, releases, and agrees to indemnify and save the State of Georgia and Authority and its officers and employees harmless from all liabilities, and the cost and expenses of defending all claims of liability, for any personal or bodily injury to persons, including death, arising out of the use of the Center by [Comdex] or by any other person admitted to the Center by [Comdex] (i) suffered by [Comdex], (ii) suffered by any person admitted to the Center by [Comdex], or (iii) suffered by other any [sic] person as a result of the acts or omissions of [Comdex] or any persons admitted to the Center by [Comdex] . . . , regardless of whether Authority’s negligent or wrongful act or omission caused, contributed to or aggravated such injury.

(Emphasis supplied.)

1. The Authority contends the trial court erred in granting summary judgment to Comdex, asserting Comdex is liable for indemnification under the contract because Acord had been “admitted to the Center” at the time of the injury. Under the contract, Comdex was liable only for injuries to persons “admitted to the Center,” unless they are injured by Comdex’s own negligence. The contract specifically defined the term “Center” as “property operated as the Georgia World Congress Center.” Comdex argues that Acord was injured on property owned by the Authority but operated as part of the Georgia Dome, not the Center.

On appeal, the Authority relies on OCGA § 10-9-3 (3) to blur the distinction between the Authority, the Center, and the Georgia Dome. That statute is part of the George L. Smith II Georgia World Congress Center Act, OCGA § 10-9-1 et seq., which established the Authority and its oversight of a State-owned international trade and convention center project. OCGA § 10-9-3 (3) defines the “project” to include the Center, but provides that other facilities within the project may be “otherwise designated” by the Authority. According to the Authority’s bylaws, the Authority oversees the management and operation of the Center, the Georgia Dome, and Centennial Olympic Park, but each facility has a separate general manager and budget.

(a) The record shows that, while the Authority oversees the management of the parking lot where Acord was injured, commonly referred to as the Georgia Dome “Gold Lot,” the parking lot was constructed as part of the Georgia Dome project. Income from the Gold parking lot is dedicated to the Georgia Dome. There is no direct access for visitors walking from the Gold parking lot to the Center. Visitors who enter the parking lots must pay a fee separate from the admission charged by events in the surrounding facilities. Therefore, as the record shows the Georgia Dome and the Center are operated separately and the Gold parking lot is part of the Georgia Dome project, the parking lot is not part of the “Center” as defined in the contract.

(b) Further, under the maxim “expressio unius est exclusio alterius,” the list of “Facilities Licensed” in the contract is presumed to exclude any facility not specifically listed. The contract did not include “parking lots” among its list of “Facilities Licensed.” Strictly construing the contract against the Authority as indemnitee, therefore, requires excluding the parking lots from coverage under the contract.

(c) Although the Authority also argues that the contract refers to the “exterior” as being part of the “Common areas” of the Center, we find no basis for extending the contract term “exterior” beyond the adjacent plazas to include all nearby parking lots operated by the Authority. See OCGA § 13-2-2 (2) (in construing a contract, the court should generally assign words their usual and common meanings).

Accordingly, at the time Acord was injured in the Georgia Dome Gold parking lot, he was not yet admitted to property “operated as the . . . Center” or otherwise covered by the contract. Therefore, the trial court did not err in granting summary judgment to Comdex on the Authority’s indemnification cross-claim.

Decided June 19, 2001

Reconsideration denied July 9, 2001.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Owen, Gleaton, Egan, Jones & Sweeney, Timothy J. Sweeney, for appellant.

Wilson, Strickland & Benson, Mary M. Brockington, Holland & Knight, Fred R. Slotkin, Jr., Mabry & McClelland, Edwin L. Hamilton, John G. Godsey, for appellee.

2. Our decision in Division 1, supra, renders the remaining enumeration moot.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       There was no evidence of negligence on the part of Comdex.

       The record also shows that no Comdex employees were involved in the direction of traffic or collection of parking fees, and Comdex received no income from parking revenues during the April 1995 computer show.

       “[T]he express mention of one thing implies the exclusion of another. [Cit.]” Walton v. Prudential Ins. Co., 210 Ga. App. 82, 83 (435 SE2d 289) (1993).