text:
    A01A0219.
    PFEIFFER v. DEPARTMENT OF TRANSPORTATION.
    (551 SE2d 58)
   Ruffin, Judge.

This appeal stems from a tragic highway construction accident which caused the death of Robert Allen Pfeiffer. Pfeiffer’s surviving spouse (“Pfeiffer”) sued the Georgia Department of Transportation (“DOT”), alleging that the accident was caused by DOT’s negligence. The trial court granted DOT’s motion for summary judgment, and Pfeiffer appeals. For reasons that follow, we affirm.

Summary judgment is appropriate where the evidence of record “show[s] 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.” On appeal, we review a trial court’s grant of summary judgment de novo.

The facts underlying the trial court’s judgment in this case are undisputed. The evidence shows that DOT contracted with Rosiek Construction Company (“Rosiek”) to construct the Sidney Lanier Bridge. The contract describes the approximately $19 million, federally funded project as “1.088 miles of const, of a north & a south approach bridge . . . over the Brunswick River for the proposed Sidney Lanier Bridge replacement. Also includes construction of a detour:” The contract required that the construction be performed “under the direct supervision and to the entire satisfaction of [DOT].” However, the contract further provided, under a section titled “Safety: Accident Prevention,” that

[i]n the performance of this contract [Rosiek] shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). [Rosiek] shall provide all safeguards, safety devices, and protective equipment and take any other needed actions as it determines, or as the [DOT] contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job. . . . It is a condition of this contract, and shall be made a condition of each subcontract, which [Rosiek] enters into pursuant to this contract, that [Rosiek] and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor.

During the bridge project, Rosiek employed Mr. Pfeiffer as a construction worker. Mr. Pfeiffer was killed when a large concrete form, which was braced on only one side, fell on him. It is undisputed that, although DOT employed engineers and inspectors at the project site to monitor and supervise various aspects of the construction, including a traffic control plan, these workers and the DOT did not assume any responsibility for the construction workers’ safety. This is because, as stated by a DOT representative, “the specs read for themselves. The contractor is responsible for their own safety program.”

Pfeiffer’s complaint alleged that, under DOT’s contract with Rosiek, “DOT undertook and assumed the responsibility to insure that proper safety devices and practices were utilized in the construction.” Pfeiffer further alleged that “DOT breached its duty of care to Robert Allen Pfeiffer by failing to take proper steps to insure that proper safety devices and practices were utilized.” DOT denied these allegations and moved for summary judgment on the ground that, under the contract, DOT delegated the responsibility for administering on-site construction safety procedures to Rosiek.

Pfeiffer responded to DOT’s motion, arguing that because the bridge project was a federal aid construction project, 23 CFR § 630.1010 (b) imposed a nondelegable duty on DOT to make certain that the safety aspects of the contract were effectively administered by the contractor. The cited regulation requires, in part, that “[t]he highway agency [DOT] shall designate a qualified person at the project level who will have the primary responsibility and sufficient authority for assuring that the TCP [traffic control plan] and other safety aspects of the contract are effectively administered.” Pfeiffer argued that the reference to “other safety aspects” required the DOT to assure Rosiek’s compliance with the safety/accident prevention provisions in the contract.

In granting DOT’s motion, the trial court found that “the responsibility for maintaining a safe work site . . . was left to the contractors performing the work, including Rosiek Construction.” And, after reviewing four of the five subsections of 23 CFR § 630.1010, the court found that they all dealt exclusively with traffic control plans. In light of these findings, the court concluded that the

operative scope of the phrase “other safety aspects” in [§ 630.1010 (b)] is limited to things in addition to traffic control plans which relate to dangers inherent in engaging in construction near traffic. . . . [The] regulation does not require [DOT] to undertake supervisory functions with respect to other aspects of the construction process.

Pfeiffer challenges this ruling on appeal.

1. We note initially that the trial court properly construed, as a matter of law, the contract between DOT and Rosiek. Under Georgia law, trial courts are required to construe unambiguous and unequivocal contracts, and “[t]he cardinal rule of construction is to ascertain the intent of the parties.” If the parties’ intent is clear from the contract terms, then a court should look to the contract alone. If the contract is ambiguous, a court may consider the attendant circumstances and the contracting parties’ explanations to determine their intent. In addition, a court should construe a contract in its entirety and “not merely by examining isolated clauses and provisions thereof.”

In the contract at issue, DOT and Rosiek unequivocally agreed that DOT would have a general duty to directly supervise the construction. However, the parties also specifically agreed that it was Rosiek’s duty to comply with all safety laws and, more importantly, that Rosiek had the responsibility of ensuring that its employees and any subcontractors’ employees were not working under hazardous or dangerous conditions.

We do not believe that the parties’ delegation of this responsibility to Rosiek is ambiguous. Furthermore, even if the contract were ambiguous, DOT’s representatives stated their understanding that Rosiek was responsible for implementing its own safety program, and Pfeiffer did not point to any conflicting evidence of the parties’ intent. In addition, considering the magnitude of the project, it makes sense that the parties would place ultimate responsibility for worker safety on Rosiek. While Rosiek, through its employees, was likely present wherever construction was being performed along the one-mile bridge and the detour, it would be unreasonable to expect a DOT employee to monitor every action of every contractor and subcontractor employee to ensure his or her safety. We therefore conclude that the trial court correctly found that the parties intended to delegate to Rosiek the responsibility for maintaining worker safety.

2. We must still consider, however, Pfeiffer’s assertion that 23 CFR § 630.1010 (b) precluded delegation of this responsibility. In construing § 630.1010 (b), we employ the basic rules of statutory construction. Under these rules, we must look to the plain language of the regulation to determine its meaning. However, even if words are apparently plain in meaning, they “must not be read in isolation. Instead, they must be read in the context of the statute as a whole.”

Decided June 1, 2001

Reconsideration denied July 19, 2001

James L. Ford, Sr., for appellant.

Thurbert E. Baker, Attorney General, Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, Bondurant, Mixson & Elmore, Frank M. Lowrey TV, for appellee.

Reading 23 CFR § 630.1010 (b) in the context of the other subsections within that regulation, it is clear that the reference to “other safety aspects” refers to other traffic safety aspects. As pointed out by the court below, each of these subsections provides requirements relating exclusively to moving traffic safely through the road construction site. Indeed, § 630.1010 is part of a larger set of regulations titled “Traffic Safety in Highway and Street Work Zones.” Although these regulations contemplate construction worker safety, such consideration is exclusively within the context of traffic safety. Accordingly, the trial court correctly concluded that § 630.1010 (b) did not impose a nondelegable duty on DOT to make certain that the nontraffic safety aspects of the contract were effectively administered by Rosiek.

3. Pfeiffer also argues that other regulations and a federal statute imposed a nondelegable duty on DOT to administer construction safety. Pfeiffer, however, never raised these arguments before the trial court on summary judgment. It is well established that “[t]his court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.” Accordingly, we conclude that Pfeiffer has waived these arguments for appeal.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       OCGA § 9-11-56 (c).

       See Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       We note that DOT was required to incorporate these safety provisions into its contract with Rosiek pursuant to 23 CFR §§ 635.108 and 633.101-633.103 (requiring incorporation of form FHWA-1273 “Required Contract Provisions, Federal-Aid Construction Contracts”). The safety standards, promulgated under 29 CFR § Í926, which were incorporated by reference into the parties’ contract, generally regulate safety and health for construction work sites. Subpart Q of § 1926, which governs concrete and masonry construction, contains numerous safety requirements for concrete formwork and shoring. See 29 CFR § 1926.703.

       (Emphasis supplied.) 23 CFR § 630.1010 (b).

       The trial court erroneously referred to subsection (d), which addresses traffic control training, as subsection (c). The court did not discuss the content of subsection (c), which actually deals with payment for traffic control devices.

       OCGA § 13-2-3; Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995).

       See id.

       See OCGA § 13-2-2 (Í).

       (Punctuation omitted.) Richard Haney, supra. See also OCGA § 13-2-2 (4).

       See Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 841 (2) (520 SE2d 505) (1999) (stating rule that “when specific provisions in a contract are applicable, they prevail over any conflicting general language”).

       See First Union Nat. Bank &c. v. Collins, 221 Ga. App. 442, 444 (471 SE2d 892) (1996); Sekula v. Fed. Deposit Ins. Corp., 39 F3d 448, 454, n. 14 (3rd Cir. 1994) (applying rules of statutory construction to agency regulation).

         See id.

        In re Diamond Mfg. Co., 123 Bankr. 125, 128 (S.D. Ga. 1990), aff'd sub nom. Moore v. Diamond Mfg. Co., 959 F2d 972 (11th Cir. 1992). See also Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 383 (1) (499 SE2d 157) (1998).

       See 23 CFR § 630.1010.

       See 23 CFR § 630, subpart J.

       See id. at § 630.1002.

       See id. at §§ 630.1004 (discussing implementation of the “manual on uniform traffic control devices” (“MUTCD”)); 630.1006 (discussing policy to protect motorists and workers through the development of procedures consistent with the MUTCD).

        Chiaka v. Rawles, 240 Ga. App. 792, 796 (4) (525 SE2d 162) (1999) (citing Peavy v. Goodroe, 237 Ga. App. 36, 37 (1) (514 SE2d 699) (1999); Saffar v. Chrysler First &c., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994)).

       We note, however, that the federal regulations cited at note 3, supra, required DOT to incorporate into its contract with Rosiek the provisions delegating safety management to Rosiek.


source: Caselaw Access Project

author: Andrews, Presiding Judge. Miller, Judge,

license: Public Domain

text:
    A01A0224.
    COPE v. ENTERPRISE RENT-A-CAR et al.
    (551 SE2d 841)
   Andrews, Presiding Judge.

Aimee Cope appeals from the trial court’s order granting summary judgment to Enterprise Rent-A-Car on her complaint for damages after a truck she rented broke down on Interstate 20. Because there is no evidence that Enterprise breached any duty of care and also no evidence that any alleged breach was the proximate cause of Cope’s injuries, we affirm.

This case arose when Cope rented a truck from Enterprise in Norcross, Georgia, to drive to New Orleans for the Super Bowl. Cope rented the truck on Thursday, drove it to work Thursday and Friday, and then left for New Orleans on Saturday morning. Cope drove the truck to New Orleans and spent the weekend there, leaving around noon on Monday to drive back to Atlanta. Cope was driving through Alabama nearing the Georgia line when the “check engine” light came on. The truck began to lose power, and Cope pulled over into the emergency lane of 1-20.

Shortly after she pulled over, a man in a truck pulled in behind her truck and asked if she wanted a ride. Cope said she did not and asked him to call police. The man offered to take a look under the hood, and Cope, who was standing beside the truck, said he could. Cope told him to walk up on the opposite side of the truck from where she was standing, and he agreed. The man told Cope that the alternator belt had come off and offered to tow her to the next exit. Cope agreed, and the man went back to his truck to get a rope. He got the rope and was walking toward her with the rope in one hand and a beer bottle in the other when he suddenly hit her in the forehead with the bottle. Cope hit him in the nose with her forehead, and the man put the rope around Cope’s neck and threw her down the hill.

A struggle ensued, with the man putting his hand inside Cope’s jeans and Cope trying to fight him off. During the struggle, he hit Cope several times in the face and sat on her, trying to pin down her arms. The man had ripped her shirt and ripped open her jeans when Cope was able to free one arm and punch him in the throat. He rolled off her after being hit, and Cope started back for her truck, screaming that she had a gun and she was going to kill him. The man started running for his truck, and Cope got the gun she kept on the front seat and fired it in the air. The man jumped into his truck and drove off. Cope was able to get back in her truck and start the engine. She drove the truck to the next exit where she was able to get help.

Cope and her brother went back to inspect the truck some time later while it was still at the sheriff’s office. They found that the serpentine belt was missing. Cope’s brother also told her that the oil looked black and gritty and the air filter was dirty.

Cope then filed the instant complaint against Enterprise, alleging that it had negligently maintained the truck and this negligence was the cause of her injuries. Enterprise moved for summary judgment, claiming there was no evidence that any alleged failure to maintain the truck caused the belt to break. Enterprise also claimed that the attack on Cope was an intervening criminal act such that any alleged negligence in maintaining the vehicle was not the proximate cause of Cope’s injuries. The trial court granted the motion, and this appeal followed.

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). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiffs claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

In this state the essential elements of a cause of action based on negligence are: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.

(Punctuation omitted.) Bradley Center v. Wessner, 161 Ga. App. 576, 579-580 (1) (287 SE2d 716) (1982). The legal duty of a bailor for hire when renting automobiles to the public is one of ordinary care. Hertz Driv-Ur-Self Stations v. Benson, 83 Ga. App. 866, 867 (65 SE2d 191) (1951).

1. Causation in fact. The only evidence in the record before us is that the truck broke down because the serpentine belt failed. Cope’s expert witness gave two reasons why the belt could have failed. There could have been something wrong with the tensioner, or the belt could have developed a crack and split apart. The expert, who never examined the truck itself but instead looked at photographs, acknowledged that he had no basis for believing there was anything wrong with the tensioner. He pointed out nothing in the pictures which showed a problem with the tensioner and admitted that the statement was mere speculation on his part. Accordingly, this statement does not even raise an inference of negligence.

What is left then is the expert’s opinion that the serpentine belt could have cracked and broken. The expert stated several times that once a belt was cracked “it can go any time.” He testified that if a serpentine belt is visibly cracked, it has no useful life left and a vehicle could travel no more than 100 miles with a cracked belt.

Cope drove the truck 1,286 miles after she rented it from Enterprise until it broke down. From her own expert’s testimony, any crack that was visible before Cope rented the truck would have caused the belt to break long before it actually did. By her own evidence, Cope has negated an essential element of her claim. Thus, because she has introduced no evidence sufficient to raise a triable issue of fact on whether the breach of a duty of care was a cause in fact of her injuries, the trial court correctly granted summary judgment to Enterprise.

2. Proximate cause. The issue here is whether the attack on Cope was a concurring proximate cause of her injuries, together with the alleged negligent inspection of the truck, or whether the criminal attack intervened and became the sole proximate cause. Cope’s only evidence in support of her claim that the alleged negligent inspection of her truck was a concurring proximate cause of her injuries was the opinion testimony of a private investigator. He testified at his deposition that the question posed to him was whether it was foreseeable that an individual who broke down by the side of the road might be subject to criminal attack. The investigator answered that it is foreseeable that an individual who breaks down on the interstate can come to harm. But, the investigator had no pertinent facts or figures to support his opinion. He had no statistics concerning the number of people who have broken down on the interstate who have been attacked; instead, he stated that “just history itself tells you that.”

The general rule applied to this issue was set forth by the Supreme Court in Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395) (1902) as follows:

While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Id. at 152, hn. 1; Blakely v. Johnson, 220 Ga. 572, 574-575 (140 SE2d 857) (1965).

In expounding upon the general rule in Webb, the Supreme Court recognized that the rule may be applied differently from case to case and further stated that:

[T]he inquiry as to natural and proximate cause and consequence is to be answered in accordance with common sense and common understanding. ... A natural consequence is one which has followed from the original act complained of, in the usual, ordinary, and experienced course of events. A result, therefore, which might reasonably have been anticipated or expected. Natural consequences, however, do not necessarily include all such as upon a calculation of chances would be found possible of occurrence, or such as extreme prudence might anticipate, but only those which ensue from the original act without any such extraordinary coincidence or conjunction of circumstances as that the usual course of nature should seem to have been departed from. ... A tortious act may have several consequences, concurrent or successive, for all of which the first tort-feasor is responsible. It is not intervening consequences, but intervening causes which relieve [the original wrongdoer from liability]. The test is to be found, . . . not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and in the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the original wrong as a result which might reasonably have been foreseen as probable, legal liability continues. ... In determining what is proximate cause the true rule is, that the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act. . . . The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.

(Citations and punctuation omitted; emphasis in original.) Webb, 116 Ga. at 155-156 (1). “An intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.” (Punctuation omitted.) Alexander v. Sportslife, 232 Ga. App. 538, 540 (2) (502 SE2d 280) (1998).

Applying the proximate cause discussion in. Webb to the present case, we see that the attack on Cope was not a natural consequence flowing out of the alleged negligence of Enterprise, but rather an intervening cause of Cope’s injuries. An intervening cause is too remote to be foreseeable if it “ ‘furnished only the condition or occasion of the injury,’ ” Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (B) (256 SE2d 916) (1979), and that is what occurred in this case.

3. In light of our holdings in Divisions 1 and 2, we need not address Cope’s claim that the trial court erred in denying her motion to strike the affidavit of Mark Mattus, the vehicle repair supervisor for Enterprise. That affidavit was immaterial to the decision.

Judgment affirmed.

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

Miller, Judge,

dissenting.

In my view, not only is there evidence of a breach of the duty of care, but the issue of foreseeability should go to a jury. Therefore, I must respectfully dissent.

Generally,

an intervening criminal act of a third party, without which the injury would not have occurred, will ... be treated as the proximate cause of the injury thus breaking the causal connection between the defendant [’s] negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendant [’s] conduct. [Cit.]

So if the character of the intervening act claimed to break the causal connection “was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all the consequences resulting from the intervening act.” With respect to the issue of proximate cause, it makes “ ‘no difference whether the intervening actor is negligent or intentional, or criminal. Even criminal conduct by others is often reasonably to be anticipated.’ [Cit.]” In Lay v. Munford, Inc., in a similar circumstance, the Supreme Court held: “The question of reasonable foreseeability and the statutory duty imposed by [former] Code [Ann.] § 105-401 [now OCGA § 51-3-1], to exercise ordinary care to protect the plaintiff in the circumstances of this case, is for a jury’s determination rather than summary adjudication by the courts.”

Decided July 6, 2001

Reconsideration denied July 19, 2001

Dean, Smith & Therrell, Peter R. Roberts, John R. Burdges, for appellant.

Magill & Atkinson, Thomas E. Magill, for appellees.

By statute, the bailor of rental cars must keep its vehicles in suitable repair for hire and further warrants that the vehicle is free from any secret fault rendering it unfit for the purposes for which it was hired. To the ordinary consumer, the purposes for renting a vehicle are to conduct and complete travel safely, conveniently, and economically. When a traveler is stranded by the side of the road, it is not beyond the apprehension of ordinary foresight to realize that someone could and would attempt to take criminal advantage of that situation. Therefore, the question of reasonable foreseeability and the statutory duty imposed by OCGA § 44-12-63 to exercise ordinary care to protect the plaintiff bailee from secret defects in this case is for a jury’s determination rather than summary adjudication by the courts. In my opinion, the trial court erred in granting Enterprise’s motion for summary judgment.

I am authorized to state that Judge Eldridge joins in this dissent.

       (Emphasis supplied.) Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996) (whole court). Accord Williams v. Grier, 196 Ga. 327, 328, hn. 2 (a) (26 SE2d 698) (1943).

        Southern R. Co. v. Webb, 116 Ga. 152, hn. 1 (42 SE 395) (1902).

        Warner v. Arnold, 133 Ga. App. 174, 177 (2) (210 SE2d 350) (1974).

       235 Ga. 340 (219 SE2d 416) (1975).

       Id. at 341.

       OCGA § 44-12-63 (2).

       See, e.g., Wallace v. Boys Club &c., 211 Ga. App. 534, 536-537 (2) (439 SE2d 746) (1993) (whole court) (absence of prior abductions and assaults does not render the danger of such criminal attacks on an unsupervised child unforeseeable as a matter of law).


author: Andrews, Presiding Judge.

text:
    A01A0282.
    BECK v. THE STATE.
    (551 SE2d 68)
   Andrews, Presiding Judge.

Michael Beck appeals from the judgment entered after a jury found him guilty of two counts of aggravated child molestation and one count of aggravated sexual battery. The jury also found him guilty of two counts of aggravated sodomy, but the trial court granted Beck’s motion for new trial on these counts in light of the Supreme Court’s holding in Brewer v. State, 271 Ga. 605 (523 SE2d 18) (1999). On appeal, Beck argues the trial court made numerous evidentiary errors and also that his trial counsel was ineffective. For the reasons which follow, we find no reversible error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. An investigator from the Douglas County Sheriff’s Office testified that Kayla Beck, Michael Beck’s estranged wife, brought her two children, A. A. and M. L. B., to the sheriffs office because of suspected child abuse. The children were in therapy at the time, and the investigator suggested that she continue with the therapy “and see what came out of it.”

A few months later, relatives told the investigator that another family member, C. B., Beck’s nephew, had also been sexually abused. The investigator sent the nephew, who was 11 years old at the time of trial, to meet with a counselor at Scottish Rite Hospital. After interviewing the children and after receiving reports from the counselors who interviewed the children, the investigator arrested Beck and charged him with sexually abusing his son, his stepson, and his nephew.

The mother of one of C. B.’s cousins testified at trial that the family learned that C. B. had been abused when they caught him engaging in inappropriate behavior with his younger cousin. When the family questioned him, he started crying and named “Uncle Mike” as having abused him and stated that he had been “doing it to me for a long time.”

C. B.’s mother testified that he was a happy child until about the time he started kindergarten. At that time, he began getting into fights and misbehaving. His disposition changed, and he appeared sad much of the time. He was no longer able to control his bowels. After she discovered that Beck had been molesting him, she asked her son why he had not told her, and he said, “because Uncle Mike threatened to kill me.”

C. B. testified at trial and described several instances in which Beck had anally sodomized him. The pediatrician who treated C. B. testified that the boy had a red scar in his anus that was the result of trauma. Also, the pediatrician said that C. B. suffered from attention deficit disorder, encopresis (which is a loss of sensation in the anus resulting in accidentally passing stools), and chronic constipation which was consistent with abused children in cases of anal sodomy. The psychologist, who was still treating C. B. for his emotional and behavioral problems at the time of trial, testified that C. B. had described to him several instances when Beck had anally sodomized him.

Kayla Beck said she became concerned for her children after she separated from Beck and noticed that A. A. had begun acting very angry and upset. She asked A. A. at one point if anyone had ever touched him, and A. A. said he did not want to talk about it “because he said he would whip me.” After this conversation, Kayla Beck took A. A. and M. L. B. to a therapist, Bess Estis. Estis testified and said that she was a social worker who specialized in children that have been sexually or physically abused. She stated that the American Professional Society on Abuse of Children provides certain guidelines for therapists when interviewing children who are victims of abuse. Among others, the guidelines recommend using anatomical dolls, puppets, and drawing materials when interviewing victims of suspected abuse.

Estis said that A. A. was having difficulty talking about the sexual encounters, but he did tell her that C. B. had initiated some sexual touching with him and M. L. B. At that point, Estis used anatomical dolls in order to make it easier for A. A. to explain what had happened. A. A. said one of the dolls was C. B. and one was A. A. Then A. A. took the dolls’ clothes off and put one doll’s mouth on the other doll’s penis.

When asked whether a grownup had ever touched him in that way, A. A. answered yes and elected to describe it by using a youth doll and an adult doll. He demonstrated both oral and anal sodomy. When asked whom the dolls represented, he said the boy was himself and the man was Daddy. A. A. said Daddy would whip him if he did not put his mouth on Daddy’s “snake,” a word he consistently used for penis.

At that time, Estis decided she should also see M. L. B. At the first session, M. L. B. described the same behavior using the dolls and said one doll was him and one doll was Daddy. When asked, “what did Daddy say about this,” M. L. B. replied, “Daddy will whip me.” Estis also described the children’s behavior when talking about these occurrences as being consistent with that of an abused child. Estis’s testimony was extensive and involved many descriptions by both children of sexual abuse. Both children always identified “Daddy,” meaning Beck, as the abuser.

The clinical social worker who first interviewed all three children at Scottish Rite Children’s Center testified about proper interviewing techniques when dealing with small children and suspected abuse. She said that using anatomical dolls was an accepted practice in the process of interviewing small children.

A. A. and M. L. B. were examined physically, and the doctor found no physical evidence of abuse. The doctor also stated, however, that in 80 percent of child molestation cases there were no physical signs of abuse.

The State called Beck’s niece as a similar transaction witness, and she testified to two instances in which Beck had fondled her.

In his defense, Beck called a psychologist, Dr. Herendeen, to testify about appropriate interviewing techniques with children. The psychologist described how suggestive children can be and said that using anatomical dolls was not generally accepted and, in fact, was discouraged. He stated that little boys who have been the victims of abuse can become abusers and also that a child might name one person as the abuser when, in fact, it was another person entirely.

Beck testified in his own defense. He said that he loved his sons and never molested them in any way. Also, he said he had tried to be a big brother to C. B. and to help when he was having problems. He denied ever molesting C. B. Beck also stated that after he and his wife separated, she got angry and told him that if he made trouble for her she would make sure he never saw the kids again.

1. The above evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his first enumeration of error, Beck claims the court erred in allowing into evidence his adult entertainment cable bills. Beck claims this evidence was inadmissible under Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), which was decided while Beck’s case remained pending. In Simpson, the Supreme Court held that evidence of sexual paraphernalia was “inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.” Id. at 774 (1). Beck claims that evidence he watched the Spice Channel was inadmissible because it portrayed only adult sex and had nothing to do with the charges against him for molesting children.

At the hearing on Beck’s motion for new trial, the court found that the evidence was admissible because it corroborated the testimony of one of the victims. C. B. testified at trial that Beck had shown him “strip movies and stuff,” and “sexual stuff — that kind of movie.”

This case is controlled by Jowers v. State, 245 Ga. App. 773 (538 SE2d 853) (2000). In Jowers, we held that evidence that defendant showed pornographic materials to the victims was admissible because the victims testified that defendant showed them the pornographic materials, “thus ‘linking' them to Jowers’s offense.” Id. at 774 (2).

Frazier v. State, 241 Ga. App. 125 (524 SE2d 768) (1999), relied on by Beck, is not on point. In Frazier, the court specifically pointed out that none of the pornographic material was linked to the crime charged, “for example, by being shown to the child victim.” Id. at 126 (1).

3. Next, Beck argues that his wife’s testimony about his favorite sexual position was also inadmissible under Simpson. The prosecutor asked Kayla Beck what Beck’s preferred sexual position was, and she replied, “Him on top, doggie style.” The prosecutor also asked if she and Beck ever engaged in oral sex, and she replied, “No.” When asked why not, Kayla stated, “I didn’t go for that.” Although this evidence was irrelevant, it was not harmful. A defendant’s preferred sexual position with his wife, without more, is not necessarily evidence designed to show a “lustful disposition.” As to the second comment, even assuming it was slightly prejudicial, its admission does not rise to the level of harmful error.

The cases relied on by Beck in support of this enumeration are not on point because they involve evidence such as pornographic videotapes, adult magazines, a videotape on bestiality, and other similar materials. For instance, in White v. State, 211 Ga. App. 694 (440 SE2d 68) (1994), the defendant was convicted of rape, child molestation, and aggravated sodomy. Id. Defendant’s wife testified that he “engaged in anal intercourse.” Id. at 696 (3). In light of the charges against him, this Court found the admission of this testimony was harmful error. Id. at 697.

That is not the case here. The error is harmless.

4. In his next enumeration, Beck argues the trial court erred in not allowing his expert witness to critique the State’s interviews with the young victims. The court limited Beck’s witness to hypotheticals because it found the State had been prejudiced by Beck’s failure to provide the State with a summary of the psychologist’s testimony or an opportunity to interview the expert as to what his testimony would be at trial.

The prosecutor objected to Dr. Herendeen’s testimony at trial. He stated that Herendeen’s name had been given to him just before the discovery deadline. When he called to interview Herendeen about his testimony at trial, Herendeen replied that he was unable to discuss it because defense counsel had not given him the videotapes of the interviews or any other materials. The prosecutor argued that defense counsel delayed giving her expert any of the materials in order to “get around” the discovery rules.

Defense counsel argued below and on appeal that because Dr. Herendeen was not conducting any examinations, tests, or experiments, he was not required to make a written report and, therefore, she had nothing to give to the State prior to trial.

The trial court based its order on OCGA § 17-16-4 (b) (2) which provides:

The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense’s case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment.

OCGA § 17-16-6 provides that when the defendant has failed to comply with the reciprocal discovery requirements of this article, the trial court may, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed.

Here, defense counsel provided the State with the name of the expert witness but, as of the time of the discovery deadline, had not provided the expert with any materials to review. Defense counsel did not give the court an explanation as to why she waited to give her expert the materials to review. The prosecutor pointed out that he had been prejudiced because his experts had already testified without any knowledge of what the defense expert would say. Accordingly, the trial court held that it would allow the expert to testify but he could not give opinion testimony on the interview techniques used in the case.

In Rower v. State, 264 Ga. 323 (443 SE2d 839) (1994), the court held “that the state may discover any written reports of experts that the defendant intends to introduce at trial. The defendant is not required to have the opinions of his experts reduced to writing nor is he required to produce any report that he will not offer at trial.” Sears v. State, 268 Ga. 759, 761 (2) (493 SE2d 180) (1997). Also, the Supreme Court has held that “an interview of the witness is the remedy for failure to comply with the requirement that a witness must be identified prior to trial; this remedy avoids the harsh sanction provided in OCGA § 17-16-6 of excluding evidence not properly disclosed.” Massey v. State, 272 Ga. 50, 51-52 (4) (525 SE2d 694) (2000). See also Romero v. State, 247 Ga. App. 724 (545 SE2d 103) (2001) (trial court properly allowed defense counsel opportunity to interview State’s expert before he testified and also offered opportunity to have defendant’s expert return to court).

In light of the Supreme Court’s holding in Rower, supra, we conclude the trial court erred in holding that defense counsel was required to provide a summary of the expert’s opinion to the State, and a better solution would have been to allow the prosecutor to interview the witness before he testified. Massey, supra.

But, the trial court did not exclude the witness’s testimony in its entirety, only limited it. And, a review of the expert’s testimony shows Beck was not harmed as a result of this ruling. Trial counsel testified at the motion for new trial that she anticipated that Dr. Herendeen would assist her in cross-examining some of the witnesses and “teach the jury about leading techniques in cross-examining — or in examining children — interviewing children.” The trial court allowed Dr. Herendeen to do this. Defense counsel was able to question the psychologist on the interview techniques used on the children. Counsel also used hypotheticals which were “strikingly similar” to what the victims claimed had occurred. Defense counsel extensively cross-examined the State’s witnesses on their interviewing techniques. She was then able to examine her expert as to his views on those techniques and then use Dr. Herendeen’s testimony during closing argument and apply it to the techniques used with the child witnesses.

Moreover, a review of Dr. Herendeen’s testimony shows that defense counsel did question Herendeen on the suggestive nature of the questions asked of the children. For instance, she questioned him on the use of anatomical dolls and discussed the words “private” and “good touch/bad touch” as used by the child and the interviewers. At one point, the expert even directly mentioned the testimony of one of the State’s experts by name and gave reasons why he disagreed with that testimony. Accordingly, the effect of defense counsel’s questions was that Herendeen did, in fact, give his opinions on the specific interview techniques used on the children and also commented on possible reasons why the children would name Beck as their molester even though he had committed none of the acts described.

Because the trial court’s restriction on the witness’s testimony was minimal and the jury heard his extensive testimony on proper interviewing techniques and also heard his opinion as to why the interview techniques used by the State’s experts were flawed, we find the error was harmless. In light of the other evidence at trial, there is a high probability that the exclusion of evidence, if any, did not contribute to the verdict. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

5. Next, Beck contends the court erred in denying his motion for directed verdict after the State rested. At the time the State rested its case, only one of the child victims had testified. Defense counsel moved to strike statements made under the Child Hearsay Statute, OCGA § 24-3-16, and moved for a directed verdict because the children were not made available to testify.

But, the record shows that the children were present and available and defense counsel was aware of this. For example, during a discussion on how much longer the trial testimony would take, the court asked, “[W]hat about the kids?” The prosecutor replied, “As I said, Your Honor, they’re here and they’re available. They’ve been here for the last two days in case we got through Bess. I expect that they’ll be available to testify once Bess is finished, you know, if defense counsel requests that they be placed on the stand. I assume they’d be your witnesses.” The court asked whether the prosecutor planned to call the children, and he replied, “No, Your Honor.”

Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), requires that “[b]efore the state rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child.” Id. at 299.

Here, the trial court corrected its omission by reopening the State’s case and calling the witnesses as required. Defense counsel then questioned both victims.

Beyond stating that “his procedural rights were not observed and protected,” Beck can show no harm from this claimed error, and, indeed, there is none.

6. Beck also claims the trial court erred in not allowing him to introduce evidence that he was acquitted of molesting his niece, a similar transaction witness. Beck claims he should have been allowed to cross-examine his wife and niece, who both testified about the molestation, in order to show that he was acquitted in that case.

Beck does not argue that the trial court erred in ruling that evidence of acquittal in a prior case could not be used to impeach the witnesses, but rather that the cross-examination should have been allowed for purposes of showing bias or motive. Beck cites to Letlow v. State, 222 Ga. App. 339 (474 SE2d 211) (1996), as authority for his argument that the acquittal was admissible. In Letlow, this Court held that “a prior act of molestation committed against the child of a witness is relevant to show any possible bias against an accused child molester that the witness may entertain, unconsciously or deliberately” and the trial court erred in restricting the cross-examination of the witness on this issue. Id. at 342-343 (2).

The trial court was not persuaded and ruled that Beck could not introduce evidence of a prior acquittal, relying on Jones v. State, 159 Ga. App. 634 (284 SE2d 651) (1981). In Jones, however, this Court ruled that evidence that defendant was acquitted in a prior case was admissible when the State introduced evidence of the prior case through a similar transaction witness. Id. at 636-637. The court held that appellant’s contention that the acquittal was admissible and relevant in other ways, in addition to the similar transaction evidence, was meritless. Id. at 636.

But, Beck did not argue below and does not argue on appeal that the evidence was admissible under Jones or that the trial court misconstrued that case. Beck’s sole argument below and on appeal is that the evidence of acquittal in the former trial was admissible to show bias or prejudice on the part of two witnesses, his wife and niece. Under the authority of Jones, supra, the evidence was not admissible for those reasons. Id. at 636-637.

In addition, Beck has not shown how the trial court’s ruling on this issue in any way prevented him from showing any bias or prejudice on the part of either witness. Defense counsel was never prohibited from cross-examining the witnesses about the state of their feelings toward Beck and his relationship to them. Letlow, supra at 342.

7. Likewise, the trial court properly excluded testimony that Paul Thompson was convicted of molesting Beck’s niece. The trial court ruled that defense counsel could not use this evidence to impeach Beck’s niece, the similar transaction witness, because it was inadmissible under the rape shield statute. Beck claims that fundamental fairness required that he be allowed to introduce evidence that a convicted child molester was the adoptive father of and lived in the house with one of Beck’s victims.

In Sales v. State, 199 Ga. App. 791 (406 SE2d 131) (1991), we held that the trial court properly excluded evidence that the victim and her mother lived for a period of time with an uncle who had been charged with child molestation. The evidence was properly excluded because “there was no evidence that the victim had been molested by anyone else, and appellant does not suggest that he could have proffered evidence that the victim was molested by the uncle.” Id. at 792 (2). Accord Bell v. State, 235 Ga. App. 825, 826 (510 SE2d 589) (1998). Likewise in the instant case, Beck points to no evidence that the victims were molested by anyone else. Accordingly, there was no error.

8. Beck also enumerates two instances in which he contends trial counsel was ineffective. In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). The issue of ineffective assistance is a mixed question of law and fact. Under this standard, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Suggs v. State, 272 Ga. 85, 88 (526 SE2d 347) (2000).

Here, Beck must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69-70 (8) (410 SE2d 173) (1991). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” Datz v. State, 210 Ga. App. 517, 518 (3) (436 SE2d 506) (1993). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Id.

Beck first argues that trial counsel’s performance was deficient for failing to provide the State with a summary of his expert witness’s testimony in order to circumvent the discovery statute. He claims the expert’s testimony was limited as a result of counsel’s failure to comply with the discovery statute.

Beck cites Johnson v. State, 266 Ga. 380 (467 SE2d 542) (1996), as authority for his claim that counsel’s failure to comply with discovery requirements prejudiced his defense. In Johnson, defense counsel was unaware of the circumstances under which prior acts of violence by a victim were admissible. As a result, counsel failed to comply with Uniform Superior Court Rules 31.1 and 31.6. Id. at 381. The Supreme Court held that this legal error was indefensible and counsel was clearly unprepared to defend his client. Id. at 383.

Here, Beck does not claim that trial counsel was unaware of the discovery requirements or that her decision as to what was required in order to comply with OCGA § 17-16-4 fell below the broad range of professional conduct. He argues instead that she was ineffective because she “did not interpret the discovery statute in accordance with the trial court’s understanding of the law.”

In light of our holding in Division 4, supra, we find no merit to this enumeration. Trial counsel testified at the motion for new trial that she believed she was acting within the requirements of the discovery statute and never made any bad faith effort to circumvent it. Moreover, Beck can show no harm as a result of counsel’s actions such that there is a reasonable probability the jury would have reached a different verdict. Gross, supra. Dr. Herendeen’s testimony was only slightly curtailed, and counsel was able to question him extensively on the interviewer’s techniques.

Decided June 25, 2001

Reconsideration dismissed July 19, 2001.

Jill L. Anderson, Mary Erickson, for appellant.

Michael O. Beck, pro se.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Accordingly, although counsel’s performance may have been deficient for failing to make a good faith effort to comply with the discovery requirements, Beck cannot show that if she had complied with the discovery requirements, there was a reasonable probability the jury would have reached a different verdict.

Beck also claims trial counsel was ineffective for failing to object to his wife’s testimony about their sexual relations. Because we concluded in Division 3, supra, that the admission of this testimony was harmless error, Beck cannot show that a reasonable probability exists that, but for this evidence, the result of the trial would have been different. Gross, supra.

Judgment affirmed.

Eldridge and Miller, JJ., concur.

       In Brewer, the court overruled those cases which held that the element of force necessary to prove aggravated sodomy would be presumed when the victim was underage and held that the State must still prove force, even if the victim is underage. Id. at 606-607.

       A. A. was Michael Beck’s stepson and was five years old at the time of trial. M. L. B. was Beck’s son and was four years old at the time of trial.


author: Pope, Presiding Judge.

text:
    A01A0438.
    MARTIN et al. v. FULTON-DEKALB HOSPITAL AUTHORITY et al.
    (551 SE2d 415)
   Pope, Presiding Judge.

Christine and John Martin, individually and as parents and natural guardians of Kelsey Hope Martin, filed this action for medical malpractice against seven defendants including the appellees here, Erin York, registered nurse, Sheri Holt, registered respiratory therapist, and Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital d/b/a Grady Health System. The state court granted summary judgment to these defendants; the case remains pending for trial as to defendants Stephens County Hospital and Donna Grafton, RN. The Martins appeal. For the following reasons, we agree with the Martins that the Medicaid payment here constituted “remuneration” under OCGA § 31-11-8 and that, accordingly, the immunity provided by that statute does not apply. Accordingly, we reverse the portion of the order that the Martins appeal.

The Martins’ complaint alleged that on November 2, 1995, Kelsey Martin was brought to Stephens County Hospital after she was born prematurely at 26-28 weeks at home. The complaint stated that Kelsey Martin was treated at Stephens County Hospital and then it was necessary to transfer her to a facility with a neonatal intensive care unit. A neonatal transport team from Grady Health Systems, which included York, RN, and Holt, RRT, transported the baby to Crawford Long Hospital. Mr. and Mrs. Martin alleged that in the course of treating their daughter, either the defendants here, or the other defendants who are not party to this appeal, administered an overdose of a blood thinner, heparin, which caused Kelsey Martin to bleed excessively in her brain, causing brain damage and physical and mental impairments.

Grady Health Systems, York, and Holt filed a motion for summary judgment arguing that they were entitled to statutory immunity under OCGA § 31-11-8 (c), which provides immunity for certain ambulance services which perform the requisite “emergency services for no remuneration.” The defendants also argued that they were entitled to summary judgment on the basis of sovereign immunity, charitable immunity, statutory immunity under OCGA § 51-1-29.1, and official immunity for defendants York and Holt.

After hearing oral argument, the court partially granted and partially denied defendants’ motion. In doing so, the court found that the requirements under OCGA § 31-11-8 were satisfied and that defendants Grady, York, and Holt were entitled to that statutory immunity. In the alternative, the court found that Grady was entitled to charitable immunity, and it also granted Grady’s motion on that basis. In so concluding, the court found that defendants York and Holt were not entitled to charitable immunity. The court rejected the defendants’ other arguments, finding that they were not entitled to sovereign or official immunity.

In their sole enumeration of error, the Martins argue that Grady was paid for its emergency services, that the immunity of OCGA § 31-11-8 does not apply, and that the trial court erred in granting summary judgment on that basis. The Martins do not challenge here the other portions of the court’s ruling. With respect to the statutory immunity issue, the Martins argue that this case is distinguishable from prior decisions of this court finding an absence of remuneration. Furthermore, they argue that for various policy reasons, there should not be immunity under the statute for Medicaid recipients.

In response, the defendants argue that OCGA § 31-11-8 should be liberally construed and that it provides immunity in this case. They contend that the Medicaid payments did not cover medical services while Kelsey Martin was aboard the ambulance and that the payment was analogous to “transportation fees,” which do not invoke the statute’s immunity.

Based on the following, we agree with the Martins’ argument that there was no immunity under OCGA § 31-11-8. The record contains evidence regarding Georgia’s comprehensive health plan for providing neonatal intensive care for infants. Under this plan Grady, through its contract with the Georgia Department of Human Resources, owns and operates the Emory Regional Perinatal Center Neonatal Ambulance Service. Grady performs virtually all neonatal transports within the North Georgia region, and Grady was responsible for the transport of Kelsey Martin.

Kelsey Martin was a Georgia Medicaid recipient and had no private insurance. Grady had contracted with the Georgia Department of Medical Assistance to provide medical services to Georgia’s Medicaid recipients. Under the contract, Grady agreed that it would be reimbursed for services provided to Medicaid patients as provided for in the Georgia State Plan for Medical Assistance, which is implemented by the policies and procedures of the Georgia Medical Assistance Program and published in the Department’s Policy & Procedure manual. That manual’s division for Emergency Ambulance Services provided that: Grady would bill the Department its “usual and customary fee” for services rendered; Grady would be “reimbursed” for services provided to Medicaid patients; and Grady would accept the Medicaid payment “as payment in full” for the covered services. The reimbursement plan contained in this agreement provided fixed rates for the various ambulance services.

The undisputed evidence showed that Grady, following these procedures, billed Medicaid its “usual and customary fee” for the ambulance services rendered to Kelsey Martin; the cost of these services was $4,563.99. The remittance indicated that it covered “ambulance service” and mileage. Medicaid reimbursed Grady according to its reimbursement plan — in 1995 Medicaid’s standard reimbursement rate was $214.01 for an advanced life support transport, plus mileage of $4.12 a mile after the first ten miles, and oxygen at a flat rate of $29.11. For Kelsey Martin’s transport, Medicaid paid $626.28, leaving a remaining balance of $3,937.71. This balance was not recovered from any source. The record also shows that Grady received and accepted the Medicaid reimbursement for the services provided to Kelsey Martin as “payment in full,” as required by the procedures manual.

In determining whether the immunity provided by OCGA § 31-11-8 applies, we first turn to the statute itself. OCGA § 31-11-8 (a) provides:

[a]ny person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.

Before analyzing the dispositive issue of remuneration, we note that the other requirements of OCGA § 31-11-8 (a) were met. The state court determined that the defendant Hospital Authority was entitled to furnish ambulance services; that the defendants rendered emergency care to the victim; and that the defendants acted in good faith. And, the parties do not dispute these other portions of the statute.

Subsection (c) of the statute defines its applicability: “[t]he immunity provided in this Code section shall apply only to those persons who perform the aforesaid emergency services for no remuneration.”

OCGA § 31-11-2 defines various components of the statutory scheme; subsection (4) states: “Ambulance service’ means the providing of emergency care and transportation on the public streets and highways of this state for a wounded, injured, sick, invalid, or incapacitated human being to or from a place where medical or hospital care is furnished.”

Our courts have addressed this statutory framework in several cases. In Thomas v. DeKalb County, 227 Ga. App. 186, 188 (2) (489 SE2d 58) (1997), this court analyzed the policy motivations behind the immunity statute. Citing Anderson v. Little &c. Funeral Home, 242 Ga. 751, 754 (2) (251 SE2d 250) (1978), this court stated:

the General Assembly has recognized that the expense and difficulty of obtaining insurance, combined with the virtually unlimited potential civil liability, could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering. The effect, in many areas of the state, would be to make emergency ambulance service virtually unobtainable. In recognition of this, the legislature chose to grant immunity from civil liability to providers of such emergency services who were licensed under the Act.

(Punctuation omitted.) Thomas, 227 Ga. App. at 188-189 (2). In Thomas, the defendants were DeKalb County paramedics, who had transported the decedent to Grady Memorial Hospital. The court found that although DeKalb County charged fees to defray a portion of the costs of the services provided, “those fees did not constitute remuneration,” so as to void the statutory immunity. Id. at 189 (2). The Thomas court did not reveal the amount of the fees which the county charged to defray the costs; this court upheld the trial court’s grant of summary judgment to the defendants on the basis of the statutory immunity.

In reaching its conclusion, the Thomas court relied on this court’s decision in Ramsey v. City of Forest Park, 204 Ga. App. 98 (2) (418 SE2d 432) (1992). In Ramsey, this court concluded that there was no “remuneration” to invalidate the immunity provided by OCGA § 31-11-8. There the City of Forest Park was duly licensed by the Georgia Department of Human Resources to provide ambulance services and had responded to an ambulance emergency call at the plaintiffs’ home. In affirming the trial court’s grant of summary judgment to the city, this court analyzed the meaning of “remuneration” within the meaning of OCGA § 31-11-8 (c). The court decided that although the municipality had levied a “transportation charge against those persons transported to a hospital,” the “remuneration” was not sufficient to render the statute inapplicable. The court stated:

[I]t appears to have been the intent of the General Assembly not to vest immunity in those “persons” who were being rewarded for the performance of “emergency services.” We are satisfied that a fee charged by a governmental organization to assist in defraying the administrative costs of “transporting a person to a hospital” is not the equivalent of receiving remuneration for providing stated “emergency care,” within the meaning of OCGA § 31-11-8 (c). What may constitute a remuneration to a private “person” may not reward and constitute remuneration to a governmental organization having to control its public expenditures carefully while providing “emergency medical services” to those within its boundaries. And, OCGA § 31-11-8 (c) must be liberally construed so as not to thwart the public policy purpose reflected in OCGA § 31-11-1.

(Emphasis in original.) Ramsey, 204 Ga. App. at 101 (2) (d). Although this court did not discuss the amount of the “transportation charge” in Ramsey, the Martins introduced evidence in the court below that the City of Forest Park charged between $75 and $200 for the transport, depending upon whether it was inside Clayton County and whether the patient was a resident or nonresident. See also Bixler v. Merritt, 244 Ga. App. 82 (534 SE2d 837) (2000).

After duly considering these authorities, we agree with the Martins that the payment Medicaid made to Grady constituted “remuneration” so as to render the immunity of OCGA § 31-11-8 inapplicable. While we recognize that OCGA § 31-11-8 must be liberally construed, we cannot distort the words of the statute. See Anderson, 242 Ga. at 752 (1). Unlike the “transportation charge” in Ramsey, the charge here, which Medicaid partially paid, was for “ambulance services.” And, although the payment did not completely reimburse Grady, it was not simply payment of an “administrative fee.” In reaching this conclusion, we reject the defendants’ argument that because Medicaid did not specifically reimburse for medical care, the payment should not be considered “remuneration.” There is no requirement under OCGA § 31-11-8 (c) that the “emergency services” rendered specifically denote medical intervention. See Anderson, 242 Ga. at 753 (1) (“ 'emergency care’ ” under OCGA § 31-11-8 “could only mean the performance of necessary personal services during an unforeseen circumstance that calls for immediate action”).

We also note that our conclusion here comports with the resolution of other issues surrounding Medicaid. See, e.g., Toal v. DeKalb Med. Center, 247 Ga. App. 349, 350 (542 SE2d 184) (2000) (involving claims by hospitals against the Georgia DMA that DMA’s Medicaid reimbursements to the hospitals breached the terms of their respective provider agreements and did not comply with “a provision of the Medicaid Act known as the Boren Amendment [, which] required that state plans must provide for hospitals to be reimbursed at rates 'which the State finds, and makes assurances satisfactory to the Secretary (of [the Department of Health & Human Services]), are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities’ ”).

Nevertheless, we emphasize that our determination that the payments in this case constituted “remuneration” under OCGA § 31-11-8 shall have no bearing on other questions raised by Medicaid payments, such as the charitable immunity issues involved in this case. As stated above, this appeal involves only the state court’s resolution of the immunity issue under OCGA § 31-11-8. Accordingly, the other portions of the court’s order are unaffected.

Decided July 2, 2001

Reconsideration denied July 19, 2001

Henry, Spiegel, Fried & Milling, Philip C. Henry, Harvey R. Spiegel, Roberts C. Milling II, for appellants.

Alston & Bird, Victoria M. Davis, Cari K. Dawson, Bernard Taylor, for appellees.

Judgment reversed.

Blackburn, C. J., and Miller, J., concur. Mikell, J., not participating.

       Nevertheless, the court found that Grady’s excess insurance coverage constituted a waiver of immunity to the extent of that insurance.

       Although the Martins contend that the court’s decision that Grady was immune from this suit under the doctrine of charitable immunity was erroneous, they did not appeal that portion of the court’s order, and thus we do not review the charitable immunity issue here.

       There is a slight discrepancy regarding the amount Medicaid was billed — evidence indicates that the bill was either $4,563.99 or $4,623.99. This factual discrepancy is, however, irrelevant to the disposition of the case.

       Though not argued by the parties, we note that “a claim of immunity under OCGA § 31-11-8 cannot be waived by those persons to whom the statute applies; and among those persons to whom the statute applies are municipalities and counties, as they are an organization of any kind, including any governmental agency other than of the United States. OCGA § 31-11-2 (18).” (Citation and punctuation omitted.) Johnson v. Gwinnett County, 215 Ga. App. 79, 80 (1) (449 SE2d 856) (1994).


author: Ruffin, Judge.

text:
    A01A0452.
    HOBBY v. SMITH.
    (550 SE2d 718)
   Ruffin, Judge.

Madera Smith sued Wensley Hobby, executor of the estate of Smith’s aunt, Sanella Grauer. In her complaint, Smith sought to enforce an agreement she had with Grauer in which Grauer would leave half of her estate to Smith in exchange for services. In the alternative, Smith sought payment of $47,000, which she alleged was the reasonable value of the services rendered to Grauer. Although the jury rejected Smith’s claim for half of the estate, it found she was entitled to the $47,000. Hobby appeals, asserting multiple enumerations of error. For reasons that follow, we reverse.

1. In his first enumeration of error, Hobby asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict (judgment n.o.v.). A trial court can grant a judgment n.o.v. only if there is but one reasonable conclusion as to the proper judgment. “[I]f there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.” Here, Hobby asserts that the evidence does not support a finding that Smith was to be compensated for the services she rendered.

As the jury concluded that no contract existed, Smith’s recovery was based upon an implied promise to pay. “Ordinarily, when one renders service . . . which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof. However, this presumption does not usually arise in cases between very near relatives.” In order for a close relative to recover, “the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection arising out of [the] relation.” Moreover, “[t]here can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. Under such circumstances no obligation is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.”

Thus, the issue before the jury was whether the evidence “plainly indicated” that, at the time Smith rendered the services, both Smith and Grauer intended for Smith to be compensated. On appeal, however, we apply the “any evidence” standard, and we view the evidence in the light most favorable to Smith, who prevailed before the jury. Accordingly, the issue before this Court is whether any evidence supports a finding that both Smith and Grauer intended for Smith to be compensated for the services rendered.

So viewed, the evidence at trial showed that, in 1977, Grauer executed a will in which she left her estate to her husband. If her husband predeceased her, however, she left all of her estate and property,

in equal parts, to [her] nieces, MARY ELLEN SMITH ROGERS and MADERA ANN SMITH SMITH, my grand-niece, JOAN ELLEN SMITH ANSLEY, and my grand-nephew, WILLIAM ASHMORE ROGERS, share and share alike, each to receive one-fourth (Vi) thereof in fee simple, the division to be per capita and not per stirpes.

After this will was created, Grauer’s husband became ill. According to Smith, during Mr. Grauer’s illness, she stayed with her aunt at the hospital. When Mr. Grauer died in 1978, Smith assisted in making funeral arrangements. Smith testified that, following Mr. Grauer’s death, she helped her aunt, but that, “after a while [Grauer] got along all right and didn’t need as much help.”

In July 1980, Grauer executed a power of attorney, which gave both Smith and Mary Ellen Rogers the authority to take care of Grauer’s financial matters. Initially, Smith did not have to make use of the power of attorney because Grauer was largely able to manage her own affairs.

On March 15,1983, Grauer executed a new will in which she left her estate and property to Smith and Rogers, “share and share alike, each to receive one-half (¥2) thereof in fee simple.” Smith testified that Grauer initially said nothing about changing her will. Several days after drafting the new will, however, Grauer showed it to Smith.

In December 1983, Grauer’s health began to decline, which required Smith to take a more active role in managing Grauer’s affairs. According to Smith, she drove her aunt to numerous medical and dental appointments. Smith also took Grauer to the grocery store, and she helped Grauer complete Medicare forms and pay bills.

In October 1993, Grauer decided to move into Sutton Place, an assisted living facility. Sometime thereafter, Grauer had a change of heart regarding her nieces. In July 1994, Grauer retained a law firm to handle her financial matters, and she revoked the power of attorney she had given them. Grauer’s lawyer wrote Smith and Rogers, notifying them of the revocation. On September 9, 1994, Grauer executed a new will in which she left all of her property to her brother.

Smith testified that she did not know what prompted Grauer to revoke the power of attorney. But, after receiving the letter from Grauer’s attorney notifying her of the revocation, Smith never helped her aunt again. In 1997, Grauer died, and Hobby was appointed as executor. According to Smith, she first learned of Grauer’s 1994 will from the executor.

Evidently displeased at having been cut out of her aunt’s will, Smith sued the estate. In her complaint, Smith averred that in 1978, Grauer told her “that if [she] would help out [Grauer, Grauer] would leave one-fourth (V4) of [her] estate to [Smith].” Smith also stated in the complaint that, in 1983, Grauer told her that “if [she] would continue to render the services to [Grauer, Grauer] would change her Will and leave one-half (V2) of her estate to [Smith].”

However, Smith’s trial testimony did not corroborate the allegations in her complaint. At trial, Smith testified that, when Grauer executed the 1977 and 1983 wills, there was no agreement that she would be named a beneficiary under the will in exchange for services rendered. Rather, Smith testified that Grauer did not discuss her plans prior to executing the wills and told Smith that she was a beneficiary only after the fact. Nevertheless, Smith believed that she was to be compensated for the services she rendered by inheriting under the will. According to Smith, “[w]hen I would take [Grauer] somewhere and do something for her[, Grauer] would say look, if there’s anything left, I want you to have it.” Smith testified that she “would have probably [helped Grauer] anyway. But since [Grauer] had an estate [Grauer] should have give [sic] me something.” The jury apparently agreed, and it awarded Smith $47,000.

Even when construed in favor of Smith, the evidence was insufficient to demonstrate that Grauer intended to pay Smith for the services rendered. According to Smith’s own testimony, Grauer executed both the 1977 and 1983 wills without discussing her intentions with her niece. Thus, there is no competent evidence that, at the time the wills were drafted, Grauer’s intent was to leave money to her niece in exchange for the services rendered. And there is no evidence that Grauer ever intended to do anything other than name Smith as a beneficiary under the will. The mere fact that Grauer intended to bequeath property to Smith does not support an inference that such bequest was intended as payment for services rendered. Indeed, Grauer also intended to leave part of her estate to Rogers, who apparently did not regularly render services for her aunt.

Given the dearth of evidence that Grauer intended to pay her niece for services rendered, the presumption remains that Smith helped her aunt out of a natural sense of duty, love and affection. It follows that the trial court erred in failing to grant Hobby’s motion for judgment n.o.v.

2. In view of our holding in Division 1, we need not address Hobby’s remaining enumerations of error.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

Decided June 21, 2001

Reconsideration denied July 19, 2001

Glen A. Cheney, for appellant.

Dubberly & McGovern, Bruce D. Dubberly, Jr., for appellee.

       See Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 646 (522 SE2d 467) (1999).

       Id.

       OCGA § 9-2-7.

       (Punctuation omitted.) Fortner v. McCorkle, 78 Ga. App. 76, 80 (2) (50 SE2d 250) (1948).

       (Punctuation omitted; emphasis in original.) Smith Dev. v. Flood, 198 Ga. App. 817, 820-821 (3) (b) (403 SE2d 249) (1991).

       See Nails v. Rebhan, 246 Ga. App. 19, 20 (1) (538 SE2d 843) (2000).

       The estate presented evidence that, after Grauer moved into the assisted living facility, she became upset because her nieces stopped visiting as often. The estate also presented evidence that the nieces took money from the estate while denying Grauer money for expenditures. Smith, however, denied these allegations, and, on appeal, we construe the evidence in Smith’s favor. See Ogletree, supra.

         Indeed, when the 1977 will was drafted, Smith was merely a contingent beneficiary.

       Smith never actually testified that Grauer said that she would name Smith a beneficiary in exchange for assistance. Smith merely testified that, when her aunt “was really depressed and needed somebody” she would reiterate that Smith was a beneficiary under the will.

       In her brief, Smith asserts that “[t]he obligation occurred when Grauer asked [Smith] to help her on July 4,1978.” Smith’s testimony does not support this statement. Smith testified that her aunt told her “she had one fourth of her estate made to me in 1978. And she needed me to help her.” Smith never said that Grauer specified that any bequest was in exchange for the help. Even assuming Smith’s testimony supported her contention, we note that any testimony regarding conversations that took place prior to July 1, 1979, would be inadmissible under the former Code Ann. § 38-1603, Georgia’s Dead Man’s Statute. See Foster v. Ramsey, 245 Ga. App. 118, 120 (3) (536 SE2d 550) (2000).

       See Fortner, supra.

       See Poole v. Baggett, 110 Ga. 822 (36 SE 86) (1900).


text:
    A01A0530.
    OLD REPUBLIC UNION INSURANCE COMPANY v. FLOYD BEASLEY & SONS, INC. et al.
    (551 SE2d 388)
   Ruffin, Judge.

Dorothy Gwinett and Sharlae Denise Tucker sued Floyd Beasley & Sons, Inc. (“Beasley”) asserting that Beasley is liable for injuries arising out of an automobile collision caused by the company’s alleged negligence. At the time of the collision, Beasley was insured under a commercial general liability policy issued by Old Republic Union Insurance Company (“Old Republic”) and a business automobile liability insurance policy issued by National Casualty Company (“National Casualty”). Old Republic and National Casualty filed declaratory judgment actions against Beasley, Gwinett, and Tucker, asking the trial court to declare that they have no duty to defend the actions and that no coverage exists under their respective policies. The trial court consolidated the two actions, and following a jury trial, the jury returned a special verdict finding that the claims arising from Beasley’s alleged negligence were not covered under either policy. However, the trial court subsequently granted Gwinett’s and Tucker’s motions for judgment notwithstanding the verdict (judgment n.o.v.) and conditional new trial, finding coverage existed as matter of law under Old Republic’s policy. Old Republic appeals these rulings, and for reasons that follow, we affirm.

1. A trial court should grant a motion for judgment n.o.v. “ ‘only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.’ ”

The relevant evidence in this case is undisputed and shows that Beasley is a logging company. In February 1995, a Beasley employee was driving one of Beasley’s tractor trucks on a local highway pulling a semitrailer loaded with a piece of logging equipment. As the driver approached an intersection, two of the tires on the semitrailer blew out. The driver pulled off the road less than 50 yards from the intersection and discovered that the u-bolts on the trailer, which hold the axle in place, were broken. The driver and another employee unloaded the logging equipment from the semitrailer, detached the trailer from the truck, and left the trailer on the side of the road.

The trailer, which could not be moved in its state of disrepair, remained on the roadside for approximately three weeks while Beasley waited for a part to repair it. On March 2, 1995, before the trailer was repaired, a fatal automobile accident occurred at the intersection near the location where the trailer was parked. The parties involved in the accident, Gwinett and Tucker, sued Beasley, alleging that their damages were caused by the logging company’s negligence in leaving the unattended trailer parked for an extended period of time in a place where it obscured the view of oncoming traffic.

Beasley’s liability policy issued by Old Republic generally provides coverage for “those sums that [Beasley] becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ ” caused by accidents. However, the policy excludes coverage for bodily injury or property damage “arising out of the ownership, maintenance, use or entrustment to others of any . . . ‘auto’ . . . owned or operated by . . . [Beasley].” Use includes operation and “ ‘loading or unloading.’ ” The term “auto” is defined to include a “trailer or semitrailer designed for travel on public roads.” It is undisputed that the subject semitrailer was designed for travel on the highway.

Based on this exclusion, Old Republic asked the trial court to declare that no coverage existed under the policy. The trial court submitted the matter to a jury which, following trial, returned a special verdict answering the following interrogatories:

2. Do the claims of Gwinett and Tucker arise out. of the ownership, maintenance, or use of Beasley’s semi-trailer? [The jury responded, “Yes.”] 3. Was the parking of Beasley’s semitrailer on the side of the road a covered “occurrence” as contemplated by the insuring agreement of Old Republic? [The jury responded, “No.”]

In granting judgment n.o.v., the court reasoned that interrogatory number three was too limited because it should have asked whether parking the trailer “coupled with the subsequent injury is a covered occurrence.” The court further found that construction of the insurance policy was a “question! ] of law that should have been decided by the Court” and “[t]he time of the last use of the semitrailer and its attachment to the tractor are too remote for this ‘occurrence’ to fall within Old Republic’s contractual exclusion.”

On appeal, Old Republic asserts that the trial court erred in granting judgment n.o.v. because the evidence showed that Gwinett’s and Tucker’s claims are excluded by the plain language of the policy’s “auto” exclusion. Inasmuch as the semitrailer at issue is indisputably an “auto” under the policy, the overriding question is whether the claimed injuries arose “out of [Beasley’s] ownership, maintenance, use or entrustment to others” of the trailer.

In resolving this question, we note initially that, “ ‘[i]n Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms.’ ” Thus, when faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction. A trial court may not charge a jury with the responsibility of construing the policy “ ‘unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ ”

In this case, the parties dispute whether the injuries claimed by Gwinett and Tucker arose out of Beasley’s “use” of the trailer. In moving for judgment n.o.v., Gwinett and Tucker argued that the injuries did not arise out of Beasley’s use of the trailer because the logging company had parked the trailer on the roadside approximately three weeks before the accident and had not utilized it for any purpose since that time. They contended that Beasley’s last “use” of the trailer, parking it on the roadside, was too remote to be considered the cause of the accident. Old Republic responded that there was sufficient evidence for the jury to find in its favor because “the parking of the semitrailer on the side of the road occurred as a result of the use of the semitrailer, and the accident which followed grew out of or flowed from such use.” Old Republic further responded that, even though the trailer had been parked on the roadside for approximately three weeks before the accident, temporal proximity alone is not determinative of remoteness; physical proximity is also relevant and the trailer was located at the scene of the accident.

This is not a novel issue. Although “an exact or bright-line definition of the term [‘use’] is elusive, and is not capable of a definition which will leave everyone comfortable,” in numerous cases our appellate courts have considered whether an accident arose out of the “use” of a vehicle as that term is contemplated under various insurance policies. The factors addressed in those cases should assist us here.

First, we must determine whether, at the time of the accident, the trailer was “being ‘utilized’ in the plain and ordinary sense of the word.” In other words, we must consider whether the trailer was still operating as a trailer at the time of the accident. Such is relevant because “the idea of ‘use’ does not embrace ‘remoteness.’ ”

It is clear to us that, at the time of the accident, the trailer was not being utilized as a trailer. The policy does not define “trailer,” but Merriam-Webster’s Collegiate Dictionary tells us that a “trailer” is “a nonautomotive vehicle designed to be hauled by road: as . . .a vehicle for transporting something.” In this case, the trailer was not loaded or attached to any vehicle that could haul it, and it lay broken on the roadside. Accordingly, though it was still a trailer, it was not being utilized as such when the accident occurred. Indeed, the undisputed evidence establishes that the trailer was last utilized as a trailer approximately three weeks before the accident when it was loaded with logging equipment and being hauled by a truck.

We must also inquire into issues of physical proximity. This involves more than evaluating how close the trailer was to the accident scene, because “use” also embraces the notion that the person using the trailer had control over it or that such control was reasonably at hand. Again, while the trailer was parked near the accident scene and was alleged to have caused the accident, it does not appear that anyone was operating the trailer when the accident occurred, that anyone had control over the trailer, or that anyone from Beasley was reasonably at hand.

Finally, we consider “the nature of the conduct which caused the situation of jeopardy.” Herein lies the crux of Old Republic’s argument that the trailer was in use. Old Republic asserts that the drivers’ obstructed view was caused by Beasley negligently parking the trailer on the roadside and that “had it not been for [this] ‘use’ of the semitrailer, the accident would not have happened.” Gwinett and Tucker contend that the obstructed view was caused by Beasley’s failure to remove the trailer within a reasonable period of time, not the use of the trailer. Significantly, this contention echos Gwinett’s and Tucker’s allegations in their respective complaints against Beasley, and the failure to relocate the trailer from the roadside “is removed from the actual operation of the [trailer].” Because Old Republic’s initial duty to defend the lawsuits turns on the allegations of the complaints asserted against Beasley, we look to the complaints to determine whether the claims are covered by the policy, rather than to Old Republic’s characterization of those claims.

Under the circumstances, we do not believe that the alleged injuries of Gwinett and Tucker arose out of Beasley’s use of the trailer, as that term is contemplated in the policy. Again, at the time of the accident, the trailer was not being utilized as a trailer and had not been for some time, and nobody was nearby to operate the trailer. In addition, Beasley’s failure to remove the trailer from the roadside did not constitute actual operation of the trailer. We are left only with the fact that the dormant trailer was located near the accident scene and allegedly caused the accident.

Moreover, to the extent that the term “use” is susceptible to two reasonable interpretations, we resolve the conflict in favor of Beasley. This is because under the rules of contract construction, the policy is construed against Old Republic as the drafter of the policy and any exclusions from coverage are strictly construed. Construing the policy in this way, we conclude, as a matter of law, that Gwinett’s and Tucker’s alleged injuries did not arise out of the use of the trailer. Accordingly, the matter should not have been submitted to the jury, and the trial court did not err in granting the defendants’ motion for judgment n.o.v. on this issue.

Decided June 25, 2001

Reconsideration denied July 19, 2001

Sherry S. Harrell, for appellant.

Callaway, Neville & Brinson, William J. Neville, Jr., Franklin, Taulbee, Rushing, Snipes & Marsh, Troy W. Marsh, Jr., William K. McGowan, Howard E. Spiva, Cecil C. Davis, Spivey, Carlton & Eden-field, J. Franklin Edenfield, James R. Gardner, for appellees.

2. Old Republic also asserts that the auto exclusion applies because the accident arose out of Beasley’s entrustment of the semitrailer to another. According to Old Republic, this exclusion precludes coverage “because Gwinett and Tucker seek to hold the insured liable under the theory that the person who parked the semitrailer on the side of the road was an alleged employee of the insured acting within the scope of his employment.” We disagree. Old Republic has confused the concepts of negligent entrustment and respondeat superior. The fact that Gwinett and Tucker seek to impute the negligence of Beasley’s agent to Beasley does not mean that they are alleging that Beasley negligently entrusted the semitrailer to the agent. A plain reading of both complaints against Beasley reveals that neither plaintiff alleges that Beasley negligently entrusted the trailer to anyone.

3. Finally, Old Republic summarily asserts that the injuries “also arose out of the ‘ownership’ of an auto.” Because this assertion is unsupported by argument or citation of authority, it is deemed abandoned.

4. In light of our decision that the trial court did not err in granting the defendants’ motions for judgment n.o.v., there is no need for a new trial, and Old Republic’s remaining assertions of error are therefore moot.

Judgment affirmed.

Johnson, P. J, and Ellington, J., concur.

       Beasley has not filed a brief in this appeal.

        Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 341 (1) (537 SE2d 397) (2000).

       The jury also found that the automobile liability policy issued by National Casualty did not provide coverage because the semitrailer was not attached to an insured tractor truck at the time of the collision.

       (Emphasis omitted.)

        Sapp v. State Farm Fire &c. Co., 226 Ga. App. 200, 201 (1) (a) (486 SE2d 71) (1997).

       See id.

       See id. at 201-202.

       Id.

       (Punctuation omitted.) Roberts v. Burke County School Dist., 267 Ga. 665, 667 (482 SE2d 283) (1997).

       See, e.g., id. (whether death of a child who was killed while walking along a heavily traveled road arose out of the “use” of a school bus which had earlier dropped him off at an unauthorized spot); Atlanta Postal Credit Union v. Intl. Indem. Co., 228 Ga. App. 887 (494 SE2d 348) (1997) (whether fatal heart attack arose out of the “use” of a wrecker employed to repossess a car from the home of the deceased); Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (230 SE2d 70) (1976) (whether injuries of sanitation worker who was struck by a passing vehicle while collecting garbage arose out of the “use” of his garbage truck which was parked approximately 30 feet away).

        Roberts, supra at 667.

       See id.

       Id.

       Merriam-Webster’s Collegiate Dictionary (10th ed. 1993), p. 1251.

       Cf. Dolly Griffin & Assoc. v. Intl. Indem. Co., 220 Ga. App. 376 (469 SE2d 464) (1996) (finding that jury issue remained concerning lapse of time between date insured truck left uninsured trailer on roadside and date of accident allegedly caused by negligent parking of the trailer on the roadside).

       See Roberts, supra.

       See id.; Atlanta Postal, supra at 889; Booker, supra at 4-5.

        Roberts, supra.

       In their respective complaints against Beasley, Gwinett and Tucker allege, inter alia, that Beasley’s failure to remove the trailer within 48 hours constituted negligence per se as a violation of OCGA § 32-6-2 (4), which makes it “unlawful for any person to park or leave unattended any vehicle upon the right of way of any public road on the state highway system for over 48 horn’s.” (Emphasis supplied.)

       (Emphasis supplied.) Roberts, supra at 668.

       See Ga. Farm &c. Ins. Co. v. Vanhuss, 243 Ga. App. 26 (532 SE2d 135) (2000).

       See Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 296-297 (2) (474 SE2d 46) (1996); Sapp, supra.

       See generally OCGA § 51-2-1 (stating basis for imputation of negligence).

       See Court of Appeals Rule 27 (c) (2).

       See OCGA § 9-11-50 (c) (addressing conditional grant of new trial).