text:
    A92A0752.
    A92A0753.
    KENNEDY v. JOHNSON. HIXSON v. KENNEDY.
    (421 SE2d 746)
   Pope, Judge.

The following facts are pertinent to this appeal: In 1989 the Mayor of East Point had installed on his office telephone a device which could be used to record telephone calls.. The device could be activated from his secretary’s (appellee/cross-appellant Mary Hixson’s) desk and primarily was used to record incoming calls from the mayor so that he could dictate documents which Hixson would later transcribe; the machine was also used at times to record messages from other callers. The tapes were usually erased and reused after any messages or dictation were retrieved off the tape. At some point during her employment the relationship between Hixson and the mayor became strained-. Each accused the other of hanging up during a telephone conversation. Hixson informed the city manager, defendant/ appellee Joe Johnson, Jr., that she had a tape of a telephone conversation with the mayor that would corroborate her version of events and she gave Johnson the tape. Johnson listened to the tape and then turned it over to the city attorney and instructed Hixson to do the same with any other tapes she might have. Hixson found one other tape that had not been erased and turned that tape over to the city attorney. One of the tapes turned over to the city attorney contained a recorded conversation between the mayor and plaintiff/appellant Cecil Kennedy, during which Kennedy referred to Johnson as a “nigger.” At that time Kennedy was a member of the City Council of East Point. The record shows the conversation was recorded when the mayor, who was out of his office, called and told Hixson that he wanted to talk to Kennedy. Kennedy came to the mayor’s office and talked to the mayor on the mayor’s phone in the mayor’s office. The door was closed during part of the conversation, but the mayor instructed Kennedy during the conversation to open the door so he could see into the outer office to ensure that no one was listening to the conversation. Although the circumstances surrounding the recordation of the conversation are not without dispute, at some point during the mayor’s call Hixson activated the recording device and began recording the conversation.

Subsequently, a reporter with The Atlanta Journal and The Atlanta Constitution news organization requested that the city clerk make the tapes available to him pursuant to Georgia’s Open Records Law. East Point’s city attorneys filed a declaratory judgment and interpleader action, seeking a determination as to what extent the recordings constituted public records and the terms under which public disclosure of the tapes would be authorized. Cox Enterprises d/b/a The Atlanta Journal and The Atlanta Constitution answered and counterclaimed contending that both they and the public had the right to inspect and copy the recordings pursuant to the Open Records Act. A hearing was scheduled on the issues presented by the parties’ pleadings; however, prior to the hearing the parties agreed to dismiss the declaratory judgment action and counterclaim and to make the recordings available for inspection and copying.

Following the release of the tapes, Kennedy brought suit against Johnson and Hixson alleging a cause of action for invasion of privacy based on Hixson’s taping of the conversation and Johnson’s release of the contents of the conversation to the public. Defendants answered, and Hixson filed a counterclaim alleging a cause of action for oral defamation and violation of her civil rights. The parties filed motions for summary judgment on their claims. In Case No. A92A0752 Kennedy appeals from the trial court’s grant of summary judgment to appellee/defendant Joseph Johnson, Jr. and the denial of his motion for summary judgment as to his claims against defendants. In Case No. A92A0753, Hixson appeals from the trial court’s denial of her motion for summary judgment. We affirm.

Case No. A92A0752

1. Plaintiff argues that the portion of the tape containing the telephone conversation at issue here was not a public record as that term is defined in OCGA § 50-18-70 and thus Johnson acted without legal authority by consenting to release the contents of the tape without first attempting to expunge the offensive conversation. OCGA § 36-33-4 provides that “officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers if done oppressively, maliciously, corruptly, or without authority of law.” (Emphasis supplied.) Our review of the record in this case reveals that Kennedy has made no showing, either in his original pleadings or otherwise, that he has “sustain[ed] special damages as the result” of Johnson’s participation in the decision to release the contents of the tape recording at issue, here. “When items of special damage are claimed, they shall be specifically stated.” OCGA § 9-11-9 (g). Having pled no special damages, Kennedy has failed to establish that he is entitled to proceed against Johnson under the authority provided in OCGA § 36-33-4.

Moreover, Kennedy has failed to present any evidence that Johnson acted “oppressively, maliciously, corruptly, or without authority of law.” Pretermitting the issue of whether the contents of the recorded conversations were subject to disclosure under Georgia’s Open Records Act, no evidence was presented either that Johnson’s participation in the decision to release the contents of the tapes was outside the scope of his authority as city manager or that he acted maliciously. In sum, no evidence has been presented that Kennedy is entitled to recover under the applicable statutory authority providing for personal liability of city officers under specified conditions. Although Kennedy also asserts that he is entitled to recover against Johnson under section 1983 because Johnson’s actions denied him his constitutional right to free speech, this argument was not raised in the trial court and thus cannot be urged for the first time on appeal. “ ‘(I)t is axiomatic that a ground urged for the first time on appeal will not be considered.’ . . . [Cits.]” Woods v. Advanta Leasing Corp., 201 Ga. App. 844, 845 (2) (412 SE2d 607) (1991). The trial court did not err by granting summary judgment to Johnson on Kennedy’s claims against him.

2. (a) Kennedy also enumerates as error the denial of his motion for summary judgment as to both defendants. It follows from our holding in Division 1, supra, that we find no error in the trial court’s denial of Kennedy’s motion for summary judgment as it pertains to defendant Johnson.

(b) We also find no error in the denial of Kennedy’s motion for summary judgment as to his invasion of privacy claim against Hixson. As stated supra, and as the trial court found in its orders denying Kennedy’s and Hixson’s motions for summary judgment, the evidence concerning Hixson’s authority to record conversations and the circumstances surrounding the taping of the particular conversation in question in this case are not without conflict. Evidence was presented that Hixson had been instructed by the mayor to tape his conversations for the purpose of later transcribing them, that she began taping the conversation in question because she thought that the mayor was going to dictate something to her, and that she inadvertently taped the conversation between the mayor and Kennedy because she forgot to shut off the recording device. Evidence was also presented that Hixson did not begin taping the conversation until after the mayor and Kennedy began talking, and that she did not have permission to record the conversation in question. As the trial court aptly noted, it is the duty of the trier of fact to resolve this conflicting evidence and to determine Hixson’s liability to Kennedy on his invasion of privacy claim. Consequently, the trial court properly denied Kennedy’s motion for summary judgment as to his claims against Hixson.

3. Kennedy also contends the trial court erred in denying his motion for summary judgment on Hixson’s counterclaim for oral defamation and violation of her civil rights. In her counterclaim Hixson alleged, inter alia, that Kennedy orally defamed her by imputing to her a crime punishable by law and by making charges against her in reference to her profession which were calculated to injure her in that profession. See OCGA § 51-5-4. Kennedy posits that any remarks he made about Hixson to council members or members of the media were privileged. See OCGA § 51-5-7. “Generally the question of whether a communication was privileged is a jury question. Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) [(1986)]. ‘ “(T)o make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.” ’ Id. ‘ “On summary judgment the issue is simply whether defendant [in counterclaim] established as a matter of law that he made privileged statements.” ’ Thomas v. Hillson, 184 Ga. App. 302, 303 (361 SE2d 278) [(1987)]; Cohen, supra at 849.” Southern Business &c. v. Norwest Financial Leasing, 194 Ga. App. 253, 260 (390 SE2d 402) (1990). The only “showing” that Kennedy made as to the privileged nature of the allegedly defamatory remarks was his averment in his affidavit filed in support of his motion for summary judgment that he had “no recollection of making any derogatory statements about . . . Hixson, but any statements [he] may have made were made in good faith during the council sessions in which his resignation, his recall, and his impeachment were discussed; or in response to media questions in connection with these matters.” However, this general denial and conclusory assertion that any statements he “may have made” about Hixson were in good faith are insufficient to meet Kennedy’s burden on summary judgment of showing the statements were privileged as a matter of law. Moreover, “[e]ven assuming, arguendo, that the statement was so privileged, this privilege is conditional rather than absolute, Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414) (1943), and it remains for a jury to determine whether the intention was such as to make the defense complete. Holmes v. Clisby, 118 Ga. 820, 825 (3) (45 SE 684) (1903). . . . The trial court therefore did not err by denying [Kennedy’s] motion for summary judgment as to [Hixson’s counterclaim on the basis that the allegedly defamatory remarks were privileged].” Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172, 174 (358 SE2d 477) (1987).

Kennedy also argues that since the recording and transmission of the conversation were unlawful, any comments he may have made concerning Hixson’s recordation of the call were not actionable. However, as was discussed in Division 2 (b), whether or not the recording of the conversation was unlawful depends upon the resolution of certain factual issues by the trier of fact. In sum, we find Kennedy was not entitled to summary judgment on Hixson’s counterclaim.

Decided July 9, 1992

Reconsideration denied July 28, 1992

Scott Walters, Jr., for Kennedy.

Eve A. Appelbaum, for Hixson and Johnson.

Case No. A92A0753

4. In Case No. A92A0753 Hixson enumerates as error the denial of her motion for summary judgment on Kennedy’s claim of invasion of privacy. However, as we held in Division 2 (b), supra, questions of fact remain concerning Hixson’s authority to record the conversation at issue here. Consequently, we find no error in the trial court’s denial of Hixson’s motion for summary judgment.

Judgments affirmed.

Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A1275.
    TERRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (422 SE2d 212)
   Pope, Judge.

On July 17, 1989, appellant/plaintiff Sharon Terry sustained bodily injuries in a motor vehicle collision. At the time of the collision, plaintiff was the named insured of an automobile policy issued by defendant/appellee State Farm Mutual Automobile Insurance Company. It is undisputed that the policy was in full force and effect at the time of the collision. On February 5, 1991, plaintiff brought this action alleging, inter alia, that defendant in bad faith refused to pay certain medical expenses in a timely manner and seeking to recover penalties and punitive damages pursuant to OCGA § 33-34-6 for defendant’s alleged failure to make timely payments.

At the time plaintiff filed suit, OCGA § 33-34-6 was part of the Georgia Motor Vehicle Accident Reparations Act, more commonly known as the No-Fault Act. After plaintiff filed this action, the Georgia legislature repealed the No-Fault Act effective October 1, 1991. The legislature did not indicate whether it intended the repeal of that statute to have retroactive application. Shortly thereafter, defendant filed a motion to dismiss or alternatively for summary judgment based upon the repeal of the No-Fault Act. The trial court granted defendant partial summary judgment on plaintiff’s claims for penalties and punitive damages pursuant to OCGA § 33-34-6. Plaintiff moved for reconsideration and the trial court denied that motion. Plaintiff appeals those rulings.

Plaintiff contends the trial court’s grant of partial summary judgment to defendant was error because the contract issued to her by defendant gives her a vested contractual right to seek penalties and punitive damages from defendant and the legislature’s repeal of that statute cannot impair that contractual right. That is, the plaintiff argues that her right to pursue penalties and punitive damages if defendant did not make timely payments as required by OCGA § 33-34-6 was a bargained-for element of her contract with defendant which vested upon her payment of the policy premium. The policy provision upon which plaintiff relies is as follows: “[State Farm] will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle. . . .” No-Fault Act is defined in the policy as meaning “the Georgia Motor Vehicle Accident Reparations Act and any amendments.”

It is well-settled in this state that repeal of a law authorizing recovery of a penalty defeats the right to recover such a penalty unless the right has become vested. Spengler v. Employers &c. Ins. Co., 131 Ga. App. 443, 448 (206 SE2d 693) (1974), and cases cited therein. The right to recover a penalty may become vested in either of two ways: (1) the right arises contractually, that is, it is the subject of bargained-for consideration; or (2) the party seeking to recover the penalty has secured a final nonappealable judgment. Id.

In support of her position that she has a vested contractual right to recover penalties and punitive damages against defendant, plaintiff relies heavily on our decisions in Spengler, supra, and Sentry Ins. v. Echols, 174 Ga. App. 541 (330 SE2d 725) (1985). Factual distinctions, however, limit the application of those cases to this case. Spengler involved two subrogation cases under the Workmen’s Compensation Act. In those cases, the employers paid benefits pursuant to the Act, but then gave notice that they intended to protect their subrogation and lien rights. After they gave notice, the statute entitling the employers to subrogation was repealed. This court held that upon the giving of notice, the employers obtained vested substantive rights that could not .be impaired by the subsequent repeal of the statute. Spengler, 131 Ga. App. at 446. In Spengler, we distinguished those cases in which a penalty was sought, as in this case. Id. at 447-449.

Plaintiff, however, points to our recognition in Spengler that, although Georgia appellate courts have generally held that the repeal of a law imposing a penalty defeats the right to recover the penalty, nevertheless “ ‘if the right was a vested one, or was secured by contract, a repeal of the law could not take away the right.’ ” (Citations omitted.) Id. at 448. We hold, however, that the mere mention within a contract of an act which contains a statute authorizing penalties is not sufficient to secure the right to collect penalties by contract; parties to the contract must specifically include the right to collect penalties pursuant to a statute in the terms of the contract before the right can be considered vested by the contract. Any other interpretation of that language would be inconsistent with the aversion to forfeitures and penalties consistently recognized by the Georgia appellate courts.

Plaintiff cites Sentry Ins., supra, for the proposition that the penalty and punitive damages provisions set forth in OCGA § 33-34-6 are contractual in nature rather than statutory and therefore cannot be impaired by the subsequent repeal of the statute. In that case, we held that claims pursuant to OCGA § 33-34-6 were governed by the six-year statute of limitation applicable to contracts rather than the twenty-year limitation for actions for the enforcement of rights accruing to individuals under statutes. Sentry Ins. 174 Ga. App. at (2). We recognized that the additional recovery authorized by the statute was extra-contractual but was so entwined with the obligations arising from the contract between the parties that the same limitation period should apply to all claims. Id. We are not persuaded that the applicable statute of limitation is determinative of the nature of an insured’s claim against an insurer for penalties and punitive damages.

The appellate courts of this state have not had occasion to address the effect of a repeal of a statute authorizing penalties in an insurance context. Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979) (holding that elimination of punitive damages under the No-Fault Act except when there are serious injuries does not violate due process, equal protection, or right of access to courts). The Georgia Supreme Court, however, has addressed that issue in cases involving the repeal of statutory penalties for violation of usury laws. We find those cases persuasive on this issue. As the Georgia Supreme Court recognized in Ward v. Hudco Loan Co., 254 Ga. 294 (3) (328 SE2d 729) (1985), the recent trend in our appellate decisions is to recognize an aversion to forfeitures and penalties and to construe liberally statutes relieving a party of payment of forfeitures and penalties. Our Supreme Court has further recognized that construing a statute so as to relieve against penalties and forfeitures does not violate the constitutional rights of the complaining party because “a person has no vested rights to a forfeiture or penalty.” Ward, 254 Ga. at 296 (3). In both Ward, supra and Southern Discount Co. v. Ector, 246 Ga. 30 (268 SE2d 621) (1980), the Georgia Supreme Court retroactively applied changes to the Industrial Loan Act to relieve a party of a forfeiture or penalty, regardless of remedies available to the borrower at the time he entered into a contract with the lender. See Wasser v. C & S Nat. Bank, 170 Ga. App. 872 (318 SE2d 518) (1984).

Decided July 8, 1992

Reconsideration denied July 28, 1992

Federal, Goetz & Cronkright, Charles M. Goetz, Jr., Julie A. Goodwin, for appellant.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Houston D. Smith III, for appellee.

We hold that the privilege to seek penalties against insurers is not generally a bargained-for element of insurance contracts. “Generally, punitive damages are not recoverable for breach of contract, even though the breach may be in bad faith.” (Punctuation and citations omitted.) Williamson v. Palmer, 199 Ga. App. 35, 36 (2) (404 SE2d 131) (1991). As in the usury context, the ability to seek punitive damages and penalties is a “privilege that belongs to the remedy” which is applicable only when the insurer has failed to act in good faith. See Ward, 254 Ga. at 297 (3). In this case, the contract itself does not specifically mention the insured’s ability to seek penalties and punitive damages against the insurer; therefore, we hold plaintiff does not have a vested contractual right. The mere mention of the act containing the statute authorizing penalties and punitive damages, as in this case, does not change the nature of the privilege from extra-contractual to contractual in nature. Therefore, the trial court did not err by granting defendant summary judgment on plaintiff’s claim seeking penalties and punitive damages pursuant to OCGA § 33-34-6.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Falanga, Barrow & Chalker, Jesse E. Barrow III, Steven K. Leibel, amici curiae.

       On motion for reconsideration, plaintiff posits that the legislature indicated in the act which repealed the No-Fault Act it did not intend for the repeal to have retroactive application to actions to recover penalties and punitive damages. The legislature specifically provided in Section 3.1 of that act “coverages payable without regard to fault in motor vehicle insurance policies in existence on October 1, 1991, shall remain in effect until changed by specific request of the policyholder and reflected by the endorsement to the policy or until the renewal date of the policy ....’’ (Emphasis supplied.) Ga. Laws 1991, p. 1628. “The universal definition of ‘coverage’ is the amount and extent of risk contractually assumed by the carrier. E.g., Traders State Bank v. Continental Insurance Co., 448 F.2d 280, 283 (10th Cir. 1971); [Seabaugh] v. Sisk, 413 S.W.2d 602, 606 (Mo. App. 1967); Black’s Law Dictionary 330 ([R]ev. 5th ed. 1979). Accord Insurance Company of North America v. Aufenkamp, 291 Md. 495, 435 A.2d 774, 778-779 (1981).” Guaranty Nat. Ins. Co. v. Bayside Resort, 635 FSupp. 1456, 1458 (D.C.V.I. 1986). There is no indication that the use of the term “coverage” in the act was meant to be broader than the generally accepted definition so as to include a statutory provision such as OCGA § 33-34-6, which does not expand the insured’s coverage under a policy but instead creates a remedy when timely payments of the risks assumed by the insurer are not made.


text:
    A92A0717.
    AMERICAN ASSOCIATION OF CAB COMPANIES, INC. v. EGEH.
    (421 SE2d 741)
   Pope, Judge.

Appellee/plaintiff Abdi Egeh was involved in an automobile collision on August 29, 1988. At the time of the collision, plaintiff, a taxi cab driver, was driving a cab owned by his cousin because his cab was not operative at the time. Both plaintiff and his cousin had insurance through the appellant/defendant American Association of Cab Companies, Inc. (“AACC”). It is undisputed that if plaintiff qualified for benefits, no-fault benefits were available to him under the policy administered by AACC.

When the collision occurred, the driver of the other vehicle and plaintiff exchanged insurance information, but did not summon the police to the scene of the accident. Plaintiff did not seek medical attention that day. Although the parties dispute whether plaintiff gave notice to defendant of the collision, the jury was authorized to find that the next day plaintiff called AACC to report the collision and request medical treatment. AACC insisted that plaintiff come to its office and file a written report of the collision. Plaintiff then contacted an attorney who made arrangements with the AACC for plaintiff to see a doctor authorized by them to conduct a medical examination. The doctor selected by the AACC, Dr. Hoffman, examined plaintiff and told him there was nothing wrong with him.

Plaintiff again contacted his attorney, who made arrangements for plaintiff to visit a chiropractor, Dr. Jane Dinerman. Dr. Dinerman treated plaintiff and referred him to Dr. D’Auria, a medical doctor specializing in orthopedics, who also treated him. He returned to work approximately six weeks after the accident. Plaintiff filed an application for personal injury protection benefits with AACC and submitted his medical bills from Doctors Dinerman and D’Auria, as well as a claim for lost wages. AACC denied the claim. Plaintiff then filed this action against AACC alleging it wrongfully denied the claim and seeking payment of his medical bills, lost wages, penalties and punitive damages pursuant to OCGA § 33-34-6, and expenses, including attorney fees.

This case was tried before a jury which returned a verdict in favor of plaintiff and awarded him $2,577 for medical expenses and lost wages, $644.25 as statutory penalties, $15,000 as punitive damages, and $7,111 as attorney fees. AACC appeals the judgment and the denial of its motion for judgment notwithstanding the verdict or alternatively for new trial.

1. Defendant argues the trial court erred by granting the plaintiff’s motion in limine to prevent testimony about the plaintiff’s motive for exaggerating his no-fault claim. Defendant contends it should have been allowed to present evidence that plaintiff exaggerated his claims to meet the threshold requirements for filing a claim for non-economic losses against the other driver involved in the collision and to effect the “pain and suffering” aspect of that claim once he had met the threshold level.

We hold the trial court properly granted the plaintiff’s motion in limine. It ruled that defendant would not be allowed to submit evidence concerning plaintiff’s motive in the case, that is, the impact plaintiff’s claim against defendant would have on any other rights plaintiff might have to pursue claims against other parties, but allowed defendant to explore fully the reasonableness of all claims submitted to defendant. Questions of relevancy are generally matters within the trial court’s discretion and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga. App. 349 (3) (398 SE2d 298) (1990). This enumeration of error is without merit.

2. Defendant urges the trial court committed reversible error by denying defendant’s motion for mistrial when plaintiff’s counsel revealed to the jury that in another case a jury had ruled against the defendant in favor of the plaintiff in that case, and by failing to grant defendant’s pretrial motion in limine, which would have prevented the mention of the prior jury’s finding. Prior to the trial in this case, defendant was sued by another taxi driver named Mohammed Abdillahi, who recovered against defendant on virtually identical facts; that is, AACC refused to pay Abdillahi’s claim for personal injury protection benefits, including payment for medical treatment by Doctors Dinerman and D’Auria, after receiving a report from Dr. Hoffman that Abdillahi was not injured.

In a pretrial motion, defendant requested that plaintiff be prohibited from introducing evidence that another jury rendered a verdict against defendant in a case with similar facts. The trial court reserved ruling on the motion and plaintiff promised not to mention the adverse verdict until the trial court made its ruling. During the testimony of Cheru Terefe, president of the AACC, the following colloquy took place:

“[Counsel for Plaintiff:] [Y]ou took the position before another jury in another court that Mohammed Abdillahi was not hurt, didn’t you?

“[Terefe:] Yes.

“[Counsel for Plaintiff:] And that jury told you —

“[Counsel for Defendant:] Objection, your Honor, we raised this just prior to trial. He said he would n[ot] get into this until your Honor ha[d] ruled on the question and now he’s proceeded directly into it.”

At that time, the matter was discussed outside the presence of the jury, and defendant moved for a mistrial. The trial court denied defendant’s motion for a mistrial and ruled that plaintiff could question Terefe about denying other claims and if there were other lawsuits filed against AACC to procure benefits but prohibited plaintiff from inquiring about the decisions reached in other cases. The jury was then brought back into the courtroom and the trial court instructed them to disregard the last question.

“ ‘The trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. (Cits.) Unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.’ [Cits.]” Stoner v. Eden, 199 Ga. App. 135, 137 (2) (404 SE2d 283) (1991). In this case, the trial court’s ruling on defendant’s motion for mistrial was proper. Plaintiff’s counsel did not complete the question before defendant’s objection was made. Under these circumstances, the trial court’s instruction to the jury was sufficient to preserve the right to a fair trial. The trial court’s ruling on defendant’s motion in limine does not offer a basis for reversal either since the trial court ultimately granted it.

3. Defendant claims the trial court erred by failing to grant its motion to strike plaintiff’s claim for lost wages. Although the evidence revealed that the trip sheets submitted by plaintiff to defendant in support of his claim for lost wages were examples rather than actual trip sheets, the plaintiff testified extensively concerning his wages. His testimony was sufficient at least to raise a jury question concerning whether he was entitled to lost wages. Allison v. Auto-Owners Ins. Co., 256 Ga. 446 (349 SE2d 682) (1986). The trial court did not err by submitting plaintiff’s claim for lost wages to the jury.

4. Defendant contends plaintiff failed to prove the terms of its contractual obligation to provide no-fault benefits to him, and therefore it was entitled to a directed verdict on all of defendant’s contractual claims. Plaintiff, however, through witnesses called before defendant’s first motion for directed verdict, proved the pertinent terms of the self-insurance plan administered by the AACC for taxi drivers, with the exception of a deductible amount. Although a certified copy of the plan is the best evidence of its provisions, failure by the plaintiff to submit a certified copy of the plan, which was later submitted by the defendant, is not fatal to his claim. Defendant’s reliance on Twyman v. Robinson, 255 Ga. 711 (342 SE2d 313) (1986) in support of this proposition is misplaced. The trial court did not err by failing to grant defendant’s motions for directed verdict and judgment n.o.v.

5. Defendant also argues that it was error for the trial court to charge the jury on the provisions of OCGA § 33-34-4 rather than the terms of the plan itself. Because the requests to charge submitted to the trial court were not made a part of the record, we are unable to determine if defendant filed a written request to charge on the terms of the plan. It does not appear from a review of the transcript of the charge conference that defendant filed such a request. It is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Bullock v. State, 202 Ga. App. 65 (413 SE2d 219) (1991).

Moreover, the transcript of the charge conference reveals defendant’s objection to the requested charge submitted by plaintiff on the terms of PIP coverage allegedly available to plaintiff under the terms of the policy administered by defendant. At defendant’s urging, the trial court agreed to read the text of OCGA § 33-34-4 rather than plaintiff’s submitted charge. “It is well-settled that when a party contributes to what he subsequently assigns as error on appeal, this court will not grant him relief. [Cit.] Furthermore, ‘ “(t)o constitute harmful error within the meaning of (OCGA § 5-5-24 (c)), an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial. . . .” ’ ” (Citations omitted.) Swanson v. Dept. of Transp., 200 Ga. App. 577, 579 (2) (409 SE2d 74) (1991). We conclude defendant was not deprived of a fair trial by the trial court charging the jury on the provisions of OCGA § 33-34-4 since defendant’s representative testified that the plan referenced OCGA § 33-34-4 and conformed to the dictates of that statute.

6. Defendant asserts that the trial court committed reversible error by allowing a lay witness to testify about the results of x-rays and a CT scan. The testimony about which defendant complains was elicited from Mohammed Abdillahi, another taxi driver who had filed a similar suit against defendant. Plaintiff questioned Abdillahi about the result of x-rays and a CT scan performed by his treating physician. Defendant offered a hearsay objection to the question. Plaintiff replied that the testimony was being offered for the purpose of showing Abdillahi’s understanding of his physical condition and to explain why he sought further treatment. We agree with the trial court that the testimony was offered for a purpose not prohibited by the hearsay rule. Accordingly, we hold this enumeration is without merit.

7. Defendant complains the trial court erred by refusing to allow it to introduce the report of the medical examination of plaintiff conducted by Dr. Hoffman for the limited purpose of showing good faith. We do not find it was error for the trial court to exclude the report. This issue is controlled adversely to defendant by our decision in Giles v. Taylor, 166 Ga. App. 563 (1) (305 SE2d 154) (1983). Furthermore, defendant’s witnesses testified extensively that they denied plaintiff’s claim for benefits based upon Dr. Hoffman’s conclusion that plaintiff was not injured. At most, the report would have been cumulative of the testimony offered by defendant.

8. In supplemental briefs filed after oral arguments, defendant raises two additional arguments. First, defendant argues that plaintiff is not the named insured as he contends. While defendant’s argument on this issue is not clear, it appears that the gist of this argument is that, contrary to plaintiff’s contentions otherwise, Rapid Group Inc. is the actual named insured in the plan administered by AACC and it could dictate the terms of coverage offered by the plan by outlining the terms in the plan filed with the Georgia Department of Insurance, including setting a deductible for PIP coverage.

The defendant does not state where in the record Rapid Group Inc. is defined as the named insured under the applicable policy. The only party mentioned in the certified copy of the plan submitted at trial is the AACC as the self-insurer. Clearly, our recent decision in Proctor v. Rapid Group, 203 Ga. App. 232 (416 SE2d 774) (1992), provides that the self-insurer is not obligated to offer all insurance coverage options provided by law, but only the minimum coverage dictated by the Georgia Motor Vehicle Accident Reparations Act and that the self-insurer may limit its coverage by specifying the coverage offered in the plan on file with the Georgia Department of Insurance.

The plan submitted by AACC contains a $500 deductible for PIP bénefits. In reaching their verdict, however, it is obvious that the jury did not subtract the deductible from their award to plaintiff. The evidence submitted by plaintiff showed damages in the amount of $1,377 for medical expenses and $1,200 as lost income. The jury awarded plaintiff the full amount for both claims. This case is remanded to the trial court for the judgment to be altered to reflect the applicable $500 deductible.

9. For the reasons set forth in our recent decision in Terry v. State Farm &c. Ins. Co., 205 Ga. App. 224 (422 SE2d 212) (1992), we hold the repeal of OCGA § 33-34-6 bars plaintiff’s recovery of penalties and punitive damages pursuant to that statute. Upon remand, the trial court shall strike from plaintiff’s judgment all amounts awarded pursuant to former OCGA § 33-34-6.

Judgment affirmed with direction.

Carley, P. J., and Johnson, J., concur.

Decided July 8, 1992

Reconsideration denied July 28, 1992

Sidney L. Moore, Jr., for appellant.

Freeman & Hawkins, Edward M. Newsom, for appellee.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Houston D. Smith III, Harper, Waldon & Craig, Thomas D. Harper, Powell, Goldstein, Frazer & Murphy, Dean S. Daskal, amici curiae.


author: Cooper, Judge.

text:
    A92A0034.
    BLACKWELL v. GEORGIA REAL ESTATE COMMISSION.
    (421 SE2d 716)
   Cooper, Judge.

Appellant appeals from the trial court’s order granting appellee’s motion to dismiss.

Appellant, a former licensed real estate broker in Georgia, had his license revoked by appellee because of his racially discriminatory behavior after an administrative hearing. Acting pro se, appellant appealed appellee’s decision to the superior court, which affirmed appellee’s final order revoking the license and denied appellant’s request for a stay of the order. Appellant then attempted to appeal the superior court’s ruling directly to this court; however, the superior court dismissed the appeal for failure to comply with the procedures for discretionary appeals pursuant to OCGA § 5-6-35. The dismissal was never pursued by appellant. Subsequently, appellant filed a separate lawsuit in superior court alleging that appellee’s decision to revoke his license was in error and seeking a stay of appellee’s final order as well as $3,000,000 in damages against appellee. Appellee filed a motion to dismiss which was granted by the superior court. It is from this order that appellant now appeals.

In his sole enumeration of error, appellant contests appellee’s authority to revoke his real estate license and asserts that appellee’s administrative decision was in error. Appellant has previously litigated these claims and cannot now re-litigate his assertion of error by appellee and his request for a stay of appellee’s decision. “ ‘ “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered. . . .” [Cit.]’ [Cit.]” Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852 (399 SE2d 708) (1990). For res judicata to bar re-litigation, the merits must have been adjudicated in the first action, the parties must be identical in the two actions and the cause of action in the two actions must be the same. Id. We have previously held that questions of fact once ruled upon by an administrative body, such as the State Board of Workers’ Compensation, are thereafter precluded from re-litigation by the doctrines of res judicata and estoppel by judgment. See Garrett v. K-Mart Corp., 197 Ga. App. 374 (398 SE2d 302) (1990). In the instant case, appellee ruled upon the merits of the exact issues raised herein in an administrative hearing between the same parties to this appeal. The superior court reviewed the merits of those issues and affirmed appellee’s decision. Appellant cannot now prolong this litigation. His claims regarding the propriety of appellee’s decision and the denial of a stay are barred. Moreover, the Georgia Real Estate Commission is a creation of the legislature and the members are appointed by the governor. OCGA § 43-40-2. The commission is granted by the legislature the full power to revoke real estate licenses in this state. OCGA § 43-40-15. “ ‘[W]here an officer or agent of the state is sued in his official capacity or where such officers are sued for acting in areas where they are vested with discretion and empowered to exercise judgment in matters before them . . .’ it is a suit against the state and sovereign immunity attaches.” Price v. Dept. of Transp., 257 Ga. 535, 537 (361 SE2d 146) (1987). Appellant has made no allegation, argument or other showing that the sovereign immunity which attaches to appellee has been waived in any way. Therefore, the trial court correctly granted appellee’s motion to dismiss.

Decided June 3, 1992

Reconsideration dismissed July 30, 1992.

Gordon G. Blackwell, pro se.

Michael J. Bowers, Attorney General, Mark H. Cohen, Beverly B. Martin, Senior Assistant Attorneys General, Roger M. Siegel, Assistant Attorney General, for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0348.
    McCONNELL DRUM SERVICE, INC. et al. v. DeKALB COUNTY et al.
    (421 SE2d 749)
   Pope, Judge.

Plaintiffs/appellees DeKalb County and Metropolitan Atlanta Rapid Transit Authority (“MARTA”) brought a condemnation action against defendants/appellants McConnell Drum Service, Inc. and Mary McConnell regarding certain commercial property in Doraville owned by Mrs. McConnell on which she operated the incorporated business. The condemnation proceeding sought an aerial easement over a narrow strip of the property over which MARTA had plans to build an elevated rapid rail track. Defendants answered and filed a counterclaim alleging inverse condemnation on the ground that a certain building permit requested by defendants had been denied due to MARTA’s original plans for condemnation of a portion of defendant’s property for the building of a grade level rail line, which plans were later abandoned, and on the ground that plaintiff’s actions had denied defendants the full enjoyment of the property. The claim for denial of full enjoyment of property rights arose out of the fact that the construction of the elevated track at the rear of defendants’ property, as well as the property of the adjoining landowner, effectively cut off defendants’ access to railroad lines adjacent to the property and precluded defendants from constructing a spur track onto their property.

The trial court granted plaintiffs’ motion to dismiss that portion of the counterclaim alleging pre-condemnation damages for denial of the building permit. The trial court also granted plaintiffs’ motion in limine to exclude evidence of the alleged damage to defendants’ property interests by the loss of access to the railroad lines and the possibility of building a spur track to the property. The parties stipulated to compensation in the amount of $5,000 for the aerial easement but defendants objected to the trial court’s refusal to permit evidence to be presented to the jury on their claim for the loss of access to the spur track. Defendants were permitted to proffer evidence regarding the claim, but judgment was entered granting only $5,000 in compensation for the aerial easement. On appeal, defendants argue the trial court erred in granting the motion in limine and refusing to permit defendants from presenting evidence of damages from the loss of access to the adjoining railroad line.

We reject defendants’ argument that access to an adjoining railroad line is a property right and thus the loss of that access amounted to a taking of property. In City of Atlanta v. Dinkins, 46 Ga. App. 19, 26 (166 SE 429) (1932), this court ruled that a condemnee may be entitled to an award of condemnation damages for loss of access to an existing spur track. In this case, however, there was no taking of either a pre-existing spur track or an easement for the building of a spur track. Thus, Dinkins is distinguishable because in this case no existing right of access was taken. Other cases cited by defendants in support of their argument are cases which involve the taking of an easement of access to a public street. Those cases are also distinguishable because it has long been recognized that an easement of access to an abutting public street is a property right which cannot be taken without compensation. See, e.g., Department of Transp. v. Whitehead, 169 Ga. App. 226 (1) (312 SE2d 344) (1983), aff’d, 253 Ga. 150 (317 SE2d 542) (1984); State Hwy. Dept. v. Irvin, 100 Ga. App. 624 (112 SE2d 216) (1959). Railroads, however, are private byways, accessible by contract but not as a matter of right. Thus, the aerial easement for the building of the elevated MARTA line did not take any property right of access to the railroad line.

We cannot say, however, that defendants are precluded from recovering alleged consequential damages for loss of access to the railroad line adjacent to defendants’ property. Even though no property right was taken because no right of access existed at the time of the taking, defendants may be able to show that the property will be rendered less valuable because it will no longer be accessible to the railroad line. See Mack v. Board of Comm’rs, 381 P2d 987 (Colo. 1963).

If the alleged consequential damages arise out of the aerial easement above defendants’ property, then the damages would properly be at issue in this condemnation action. Plaintiffs argue, however, that the alleged consequential damages do not arise out of the aerial easement at issue in the condemnation action and therefore must be brought in a separate inverse condemnation action. See Fountain v. DeKalb County, 154 Ga. App. 302 (1) (267 SE2d 903) (1980); Department of Transp. v. Simon, 151 Ga. App. 807, 810-811 (261 SE2d 710), aff’d, 245 Ga. 478 (265 SE2d 777) (1980). In fact, such a separate action for inverse condemnation has been brought by the defendants and, at the time judgment was rendered in this condemnation case, the action was still pending in the trial court, alleging not only consequential damages for loss of access to the adjoining railroad line but also pre-condemnation damages for the denial of the building permit, which were dismissed earlier from this action. Plaintiffs’ argument is based on the fact that the spur track defendants had planned to build required an easement from the adjoining landowner so the spur could be built partially across the adjoining landowner’s property. The reason the planned spur track may not now be built is not due to the low clearance of the aerial easement over defendants’ property but the clearance and footings built on the adjoining landowner’s property. We agree that the loss of access to the planned spur track by use of an easement across the adjoining landowner’s property does not arise out of the condemnation at issue in this case and must be pursued in the separate pending action. But the fact remains that direct access to the railroad line which runs directly adjacent to defendants’ property has been cut off by the low-clearance aerial easement obtained by the plaintiffs. Thus, the alleged consequential damage to the value of the property from the loss of access to the railroad line is an element of damages which is properly at issue in this condemnation action. The trial court erred in refusing to permit defendants to present evidence of this claim.

Decided July 9, 1992

Reconsideration denied July 30, 1992

Wendell K. Willard, for appellants.

Johnson & Montgomery, Albert S. Johnson, Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, for appellees.

Judgment reversed.

Johnson, J., concurs. Carley, P. J., concurs in judgment only.

       The record shows defendants originally planned to construct a building at the rear of their property immediately adjacent to the railroad line so it could be serviced by that line. It was for this proposed building that defendants were denied a building permit due to MARTA’s proposed plan to condemn a strip of land at the rear of defendants’ property for a grade level rapid rail line. Because the permit was denied and defendants were led to believe the rear of their lot was to be condemned, defendants constructed a building in another location on the property. In order to service this building with a spur track, it was necessary to obtain an easement from the adjoining landowner so the spur could traverse a corner of the adjoining lot to reach the building. The record indicates the adjoining landowner was willing to grant such an easement but, alas, the spur track could not be built because of MARTA’s condemnation and easement across that property. Thus, defendants presented evidence that plaintiffs’ actions resulted in defendants’ loss of access to the railroad line both directly from their own property and indirectly via an easement from their neighboring landowner.


author: Carley, Presiding Judge.

text:
    A92A0361.
    VALIANT STEEL & EQUIPMENT, INC. v. ROADWAY EXPRESS, INC.
    (421 SE2d 773)
   Carley, Presiding Judge.

Appellee-plaintiff (lessor) brought suit, alleging that appellant-defendant (tenant) had breached a two-year lease. The tenant answered and raised, among its other defenses, the statute of frauds. After discovery, the lessor moved for summary judgment. The trial court granted the lessor’s motion and the tenant appeals.

1. The burden was on the lessor, as movant for summary judgment, to show that no genuine issue of material fact remained as to the tenant’s statute of frauds defense.

The original two-year lease of the premises had expired on December 31, 1988. This original lease did not specifically provide for any extension or renewal thereof. Compare Sprayberry Crossing Partnership v. Tuley, 198 Ga. App. 53 (400 SE2d 334) (1990). Accordingly, after the original lease expired, the lessor and tenant began negotiations in an effort to reach a mutual agreement as to the terms and conditions of an entirely new lease. Compare Sprayberry Crossing Partnership v. Tuley, supra. By letter, the tenant submitted to the lessor an offer to relet the premises for a two-year period. The tenant’s offer specified rent of $1,800 per month and stated that “[a]ll other terms and conditions of the [original] lease including taxes, insurance, utilities, etc. shall remain the same.” The tenant’s offer further provided that it was to be advised “by confirmation letter if the terms of the two-year lease extension are acceptable to [the lessor].”

There is no evidence that the lessor ever accepted the tenant’s offer by sending the tenant any confirmation letter agreeing to the terms of the tenant’s offer. “A contract may be closed by a letter or telegram, and become binding. But if it is claimed that [one party] has become bound by an acceptance of his offer by the [other party], such offer must be accepted unconditionally and without variance.” Phinizy v. Bush, 129 Ga. 479 (4) (59 SE 259) (1907). “The subsequent communication by one party to the [proposed] contract to the other party ‘varying only one term of the original offer’ is a counteroffer. [Cit.] . . . Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort, otherwise, there can be no meeting of the minds and mutual assent necessary to formation of a contract. [Cit.]” Panfel v. Boyd, 187 Ga. App. 639, 645-646 (3) (371 SE2d 222) (1988).

“To make [a two-year lease] binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him. . . .” OCGA § 13-5-30 (5). If the tenant’s offer had been accepted by the lessor, the tenant would be bound by the terms thereof, those being a two-year tenancy with rent of $1,800 per month and “[a] 11 other terms of the [original] lease . . . remaining] the same.” In the absence of any evidence of such acceptance by the lessor, however, the tenant’s offer would not represent a written and signed lease agreement containing terms which were mutually agreed upon so as to be enforceable under OCGA § 13-5-30 (5). See Brookhill Mgmt. Corp. v. Shah, 197 Ga. App. 305 (398 SE2d 290) (1990). “While the letter [from the tenant to the lessor] may have been an express offer to renew, it by no means represents an express agreement, because [the lessor] did not expressly accept the offer.” (Emphasis in original.) Flamex Distributors v. Herman, 140 Ga. App. 771, 772 (232 SE2d 124) (1976).

Accordingly, the trial court erred in holding that the tenant’s offer, standing alone, would be a sufficient writing to satisfy the statute of frauds. That offer contemplated a written acceptance by the lessor and the tenant would not be bound thereby in the absence of evidence that the offer was accepted by the lessor’s confirmation letter. “[W]here an express acceptance by the opposite party is required by the offer in order to establish a contract, the fact of such subsequent acceptance must be communicated to the offerer by the opposite party or competent agent of such party. . . . [Cits.]” Federal Farm Mtg. Corp. v. Dixon, 185 Ga. 466, 469 (1) (195 SE 414) (1938). Thus, it is immaterial that there is no evidence that the lessor rejected the tenant’s offer. What is material is that there is no evidence that the lessor did accept the tenant’s offer by sending a confirmation letter.

2. Pending receipt of the lessor’s written acceptance of the offer, the tenant paid rent in the amount of $1,800 per month. Since this was the amount of rent specified in the tenant’s offer, the lessor urges that the tenant partially performed its offer to relet the premises for a two-year period and that the statute of frauds would not, therefore, bar a recovery for the breach of a two-year lease.

The statute of frauds does not extend to the case “[w]here there has been performance on one side, accepted by the other in accordance with the contract. . . .” (Emphasis supplied.) OCGA § 13-5-31 (2). Thus, in order for the lessor to rely upon the tenant’s part performance of an alleged, two-year lease as obviating compliance with the statute of frauds, the lessor must first show the existence of a contract to rent the premises for a two-year period. “As to performance accepted ‘in accordance with’ the contract, it must first be established that the contract is certain and definite in all essential particulars. [Cit.]” Smith v. Top Dollar Stores, 129 Ga. App. 60, 63 (1) (198 SE2d 690) (1973). The tenant’s mere offer to relet the premises for a two-year period at the rate of $1,800 per month certainly shows no contract to lease the premises for a two-year period. The tenant’s offer was made contingent upon the lessor’s written acceptance thereof and, in the absence of such acceptance, there could be no contract.

The lessor does not contend that the tenant made any oral offer to rent the premises for a two-year period, which offer was accepted and pursuant to which rent was thereafter paid and accepted. Even if such an oral contract was alleged, the lessor still could not recover for the breach of a two-year lease. The tenant’s “possession of the premises and payment of rent [would] not supply such partial performance as [would] tend to prove the essential element sought to be proved, that is, the durational term of the lease. [Cit.] This being so, the part performance asserted by the [lessor would be] insufficient as a matter of law to remove the agreement from [OCGA § 13-5-30].” Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344 (2) (259 SE2d 729) (1979).

Rather than relying upon the tenant’s payment of rent as evincing an exception to the statute of frauds, the lessor is, in fact, relying upon its own acceptance of that rent as evidencing an acceptance on its part of the tenant’s written offer to relet the premises for a two-year period. This is erroneous. The tenant’s offer required a written acceptance by the lessor and, until the lessor unconditionally accepted the offer by written confirmation letter, there could be no enforceable two-year lease. “ ‘Where an express acceptance by the opposite party is required by the offer in order to establish a contract, the fact of such subsequent acceptance must be communicated to the offerer by the opposite party . . . ; and a mere private uncommunicated assent would not effect an agreement.’ [Cits.]” Hartford Fire Ins. Co. v. Steenhuis, 115 Ga. App. 625, 626-627 (155 SE2d 690) (1967). Pending the lessor’s written unconditional acceptance of the offer to lease the premises for a two-year period, the tenant was entitled to consider itself a tenant at will and to consider the payment of the $1,800 as rent for its tenancy at will. “A tenant who stays on after the termination of the lease and pays rent with the permission of the landlord becomes a tenant at will. [Cit.]” Ferguson v. Bank of the South, 164 Ga. App. 203, 205 (3) (296 SE2d 756) (1982). “[T]he mere payment by the lessee and acceptance by the lessor of rentals after the expiration of the original lease does not effect a renewal, and the lessee would occupy the status of a tenant at will. [Cits.]” Erquitt v. Solomon, 135 Ga. App. 502, 504 (218 SE2d 172) (1975).

3. There is in the record a written counteroffer by the lessor, agreeing to rent the premises for a two-year period at the rate of $1,800 per month, but specifying other terms different from those proposed in the tenant’s offer. If it were undisputed that, after receiving this counteroffer, the tenant continued to occupy the premises and pay $1,800 per month rent, an enforceable contract would result. Unlike the tenant’s offer, the lessor’s counteroffer was not made contingent upon written acceptance and the tenant’s performance consistent with the counteroffer, after the receipt thereof, would signify its acceptance of the terms therein. “If one of the parties has not signed, his acceptance is inferred from a performance under the contract, in part or in full, and he becomes bound. [Cits.]” Cooper v. G. E. Constr. Co., 116 Ga. App. 690, 694 (2) (158 SE2d 305) (1967). Under these circumstances, every essential term of the lease would otherwise be provided by the lessor’s written counteroffer, and the tenant’s continued possession and payment of rent would be relied upon solely to prove that, notwithstanding the absence of the tenant’s signature thereon, the lessor’s counteroffer had nevertheless been accepted by and would be enforceable against the tenant. See Shell Petroleum Corp. v. Jackson, 47 Ga. App. 667, 672 (4) (171 SE 171) (1933). Compare Smith v. Top Dollar Stores, supra. “Written signature to a contract is to afford mutuality, but is not the only method of obtaining mutuality. Part performance by both parties satisfies the requisites of mutuality and the statute of frauds. [Cits.]” City of Atlanta v. Foster & Cooper, Inc., 136 Ga. App. 159, 160 (1) (220 SE2d 724) (1975).

It is not, however, undisputed that the tenant received the lessor’s counteroffer. If, as the tenant contends, it did not receive the lessor’s counteroffer, then its continued possession of the premises and payment of $1,800 per month rent would not signify the acceptance of the counteroffer, but would be consistent with the existence of a tenancy at will pending the receipt of the lessor’s response to the tenant’s offer. See Garden of Eden v. Eastern Savings Bank, 244 Ga. 63, 65 (2) (257 SE2d 897) (1979). Since a genuine issue of material fact remains as to the tenant’s receipt of the lessor’s counteroffer, summary judgment would not be authorized on the theory that the tenant accepted and is bound by the terms thereof.

Decided July 16, 1992

Reconsideration denied July 30, 1992.

Christopher J. McFadden, Joe L. Fowler, for appellant.

Griffin, Cochrane, Marshall & Eiger, W. Henry Parkman, Robyn S. Degnan, for appellee.

4. As the movant for summary judgment, the lessor failed to show the existence of a two-year lease which would be enforceable against the tenant under the statute of frauds or under any exception thereto. It follows that the trial court erred in granting summary judgment in favor of the lessor.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0651.
    STEPHAN v. THE STATE.
    (422 SE2d 25)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault. She appeals from the judgment and sentence entered on the conviction and the denial of her motion for new trial.

The evidence viewed in a light most favorable to the jury verdict reveals that the victim attended a party given by a couple at a warehouse near downtown Atlanta and that as the victim stood talking to friends, a woman, later identified as appellant, sat on a bench directly behind her. The victim felt a pain around her legs and reached back to discover that she had been cut across the back of her legs. The victim did not see who cut her, but after she screamed for help, the victim looked behind her and saw appellant sitting on the bench smiling at her. Appellant immediately left the party with a very worried look on her face, and on her way out, she said to one of the hosts of the party: “You’re going to hear about someone getting cut, and I had nothing to do with it.” The host testified that he believed that appellant was lying because appellant was extremely nervous and in a hurry to leave. Appellant was the only person behind the victim immediately before and after the victim screamed. The victim was taken to the hospital where she received a total of 31 stitches from razor blade cuts. Appellant was subsequently arrested and charged with aggravated assault. At trial, the victim positively identified appellant as the woman she saw behind her smiling.

1. Appellant complains that the trial court erred in allowing the State to introduce testimony concerning her alleged participation in Satanic worship in violation of an order on appellant’s motion in limine prohibiting any reference to witchcraft, black magic, devil worship, satanism, or anything that could be so construed, in connection with the case. During a hearing on the motion in limine, the State disavowed any intent to pursue such a line of questioning unless and until the issue of the appellant’s character was opened by the defense, and under these conditions the motion was granted. However, the State’s first witness testified that appellant assaulted her because appellant was angry that the witness persuaded a former follower of appellant’s devil worship cult into leaving the cult. In response to appellant’s objections and motion for mistrial, the court ruled that the witchcraft evidence was going to have to come in as a collateral matter, as she had determined that it was material to the case, and even though it might incidentally put appellant’s character in issue, it was too material to an understanding of what had occurred not to allow it. Moreover, the most detailed testimony in regard to appellant’s religious beliefs was elicited by defense counsel upon examination of the appellant herself. The State’s witness only briefly referred to appellant’s professed interest in the occult and her pride in being a princess or priestess of her cult.

Where the trial court rules on the admissibility of evidence in a pretrial motion in limine, “the court’s determination of admissibility is similar ‘to a preliminary ruling on evidence at a pretrial conference’ and it ‘ “controls the subsequent course of action, unless modified at trial to prevent manifest injustice.” ’ [Cit.]” State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982). Furthermore, “ ‘(t)he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence . . . even though it may have incidentally placed [appellant’s] character in evidence.’ [Cits.]” Houston v. State, 187 Ga. App. 335, 340 (5) (370 SE2d 178) (1988). The court had the discretion to modify its pretrial ruling when it became apparent the evidence was relevant and material to appellant’s motivation for assaulting the witness. “ ‘Material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. (Cit.)’ [Cit.]” Rhodes v. State, 200 Ga. App. 193, 197 (5) (407 SE2d 442) (1991).

2. Appellant also contends that the trial court committed error by allowing the State to introduce a similar act. Appellant first argues that the notice was untimely under Uniform Superior Court Rule (“USCR”) 31.1 and second, that a pretrial hearing was not held in compliance with Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

Williams holds that “[a]s a threshold requirement for admissibility [of a similar act], the State must affirmatively show that it seeks to introduce the independent offense or act for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility rather than to raise an improper inference as to the accused’s character. It must be relevant to an issue in the case. After a USCR 31.3 (B) hearing and before any introduction of the independent transaction evidence, the trial court must make the determination that the State has satisfactorily made each of the three showings as to each independent act or offense, i.e., permissible purpose and relevancy, perpetrator identity, and similarity of act. [Cit.]” Moore v. State, 202 Ga. App. 476, 481 (3) (414 SE2d 705) (1992). The record reflects that on the morning the trial began, the State served defense counsel a notice of intent to present similar transaction evidence. The prosecutor stated in her place, at the request of the trial judge, that the similar act occurred while Ingrid Buxbaum and her boyfriend were leaving an Atlanta restaurant; that the couple was approached by appellant and another woman; and that appellant wielded a razor blade and. threatened to cut Buxbaum. The prosecutor stated that the acts occurred only one month apart, that the acts involved the same type of weapon and that two witnesses would identify appellant as the perpetrator of the prior act. However, the record does not reflect that the prosecutor affirmatively stated the purpose for which the similar transaction evidence was being offered, as required by Williams. Consequently, the record does not reflect that the trial court made the requisite determination that the evidence was admitted for a limited purpose. Immediately prior to the presentation of the evidence at trial, the trial court instructed the jury that appellant was not charged with the other transaction and that the evidence was only admitted for the purpose of showing “knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity or other matters dependent upon a person’s state of mind are involved as a material element in the offense for which she is now on trial, then evidence of the defendant’s conduct with reference to similar transactions or similar transaction [sic] about the same time is admitted solely for you to consider as it might tend to illustrate the defendant’s state of mind on the subject involved if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.” “ ‘[W]hen evidence admitted for one purpose is potentially unfairly prejudicial to a party, that party is entitled to have the court instruct the jury to limit its consideration to the one purpose for which the evidence is admissible. (Cits.)’ [Cits.]” (Emphasis supplied.) Moore v. State, supra at 480. We conclude that the trial court’s articulation of such a comprehensive list of possible purposes did not sufficiently limit the purpose for which the evidence was to be considered by the jury in accordance with Williams. Nor can we conclude that the failure to comply with Williams was harmless. In fact, the possible prejudice to appellant was intensified by the failure of the State to give appellant the requisite ten-day notice required by USCR 31.1.

Decided July 15, 1992

Reconsideration denied July 30, 1992.

H. Clay Collins, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Leonora Grant, Penny A. Penn, Assistant District Attorneys, for appellee.

Appellant’s counsel moved to exclude the similar transaction evidence, or in the alternative for a continuance, on the grounds that the State had not complied with the ten-day notice requirement of USCR 31.1. Appellant’s counsel stated that she had a witness who would contradict the identification testimony of the two similar transaction witnesses but that the woman lived in New York and a continuance was needed to allow time to produce her as a witness. The trial judge refused a continuance but offered county funds to assist the witness with airfare. We acknowledge the discretion afforded a trial judge to shorten or lengthen the ten-day time period stated in the rule. See Hall v. State, 181 Ga. App. 92 (1b) (351 SE2d 236) (1986). See also Rossell v. State, 195 Ga. App. 327 (1) (393 SE2d 485) (1990). However, the purpose of the advance notice is to allow the defendant time to prepare for the similar transaction. Moore, supra at 480. We cannot say that the trial court’s denial of a continuance was error as a matter of law. Nevertheless, we do find that the State’s announcement on the day of trial that it intended to introduce similar transaction evidence together with the State’s failure to inform appellant of the purpose for which the similar transaction evidence was offered complicated defense counsel’s ability to prepare appellant’s defense. See Cain v. State, 201 Ga. App. 317 (1) (411 SE2d 92) (1991). Accordingly, we find that the trial court committed reversible error in admitting the similar transaction evidence.

3. Appellant’s third enumeration of error, that the trial court erred in failing to investigate the prejudicial impact of a newspaper article found in the jury room, is unlikely to occur on retrial. Therefore, we decline to address it.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


author: Beasley, Judge.

text:
    A92A0652.
    GIDDEN v. THE STATE.
    (422 SE2d 30)
   Beasley, Judge.

Gidden was convicted of burglary (entry into dwelling with intent to commit kidnapping and aggravated assault) (OCGA § 16-7-1), kidnapping (forcible abduction and stealing away of person against her will) (OCGA § 16-5-40), and aggravated assault (assault by knife and threat of bodily harm) (OCGA § 16-5-21 (a) (2)).

1. He claims that the trial court erred in failing to give the following charge, as he requested: “If you the jury determine that the witness for the State, upon whose direct evidence the state depends, has been impeached, then the evidence must exclude every reasonable hypothesis save that of guilt of the accused, before you may find the accused guilty. Otherwise, the form of your verdict should be ‘not guilty.’ ” Defendant cited as authority Julian v. State, 134 Ga. App. 592, 599 (6) (215 SE2d 496) (1975), and now adds OCGA § 24-4-6, the rule regarding convictions based wholly on circumstantial evidence.

The State’s evidence was that at approximately 1:00 a.m. on September 21, 1990, the defendant had abducted the victim out of her apartment, had led her to her car at knifepoint, and had forced her to drive the car to a place where he forced her to have sex with him. Then the defendant had the victim drive him to a certain location and let him out of the car.

In support of its case, the evidence the State presented was both direct and circumstantial. Several police officers testified regarding their investigation of the case. One officer testified that in response to calls regarding a suspicious person, he drove to the victim’s apartment complex and actually spoke with the victim, who was already in the car with the defendant, and asked her for directions. He testified that he noticed there was a male occupant in the car and although she appeared to be somewhat distressed, he did not question her more than to get directions. When he saw her two hours later, she was in pajamas, her hair was uncombed, she appeared to have been crying, and she appeared very distressed.

One of the victim’s neighbors testified that she had seen the defendant in the apartment complex earlier in the evening. She stated that the defendant had knocked on her door and asked her for a ride home, but that she never opened her door and instead called the police. Another neighbor testified that he had seen the defendant walking behind the victim to her car at about 1:00 a.m. He saw the two get in the car and then drive off. He also saw the victim when she returned to the apartment complex a couple of hours later.

The victim testified that the defendant came to her apartment building and that she opened the door for him, believing that he was an acquaintance of hers. He then forced his way into the apartment and grabbed her arm and asked where her car was. He had a knife in his right hand and saw the car keys and grabbed them, took the victim out of the apartment, led her to the car, opened the car door and put her in and then got in on the other side. He put the car keys in the ignition and continued holding the knife to her side. He directed her to drive to a place where he then made her have sex.

On cross-examination, inconsistencies between the testimony of the victim at the preliminary hearing and her testimony at trial were brought out. The victim had testified at the preliminary hearing that she, not the defendant, had picked up the car keys. An inconsistency regarding the number of police cars the victim recalled seeing enter her apartment complex on that evening was also brought out. Various other inconsistencies, such as whether the defendant or the victim removed her pants, and between her testimony at trial and a statement she gave to a detective the day after the incident, were also pointed out.

Defense witnesses included the defendant. He testified that the victim voluntarily drove him home and had sex with him.

The trial court refused to give the requested charge, on the theory that if the jury found that the victim was impeached on material issues of fact, there was no circumstantial evidence which would authorize a conviction. The court did not so charge the jury, i.e., that if the victim was disbelieved on the matter of coercion, the jury would have to acquit the defendant. The trial court did not want the jury to consider the circumstantial evidence as possibly authorizing a conviction because, in its mind, such evidence would be insufficient. Actually, from this perspective, not giving the charge would benefit rather than harm defendant because giving it would still leave open the possibility of conviction.

Nevertheless, in its charge on impeachment, the court instructed: “If a witness should be successfully impeached, that is to say, if it should be shown to the satisfaction of the jury that such witness is not worthy of belief, then in that event it would be the duty of the jury to disregard the testimony of such witness, unless the same is corroborated by other credible and unimpeached testimony, either direct or circumstantial.” Thus, the jury was authorized by the court to convict defendant on circumstantial evidence.

The pivotal issues of fact were whether the complaining witness was coerced at knifepoint or, on the other hand, consented to leave her apartment and drive defendant in her car and whether she was assaulted with the knife. It would appear that as to these points, as in Mayfield v. State, 153 Ga. App. 459, 461 (3) (265 SE2d 366) (1980), “the state’s case is predicated entirely upon the direct evidence offered by [her]. If the jury determines this witness was impeached, then there would be no other evidence authorizing a verdict of guilty.” Of course, “‘[i]f a witness is impeached or discredited in some legal manner, a jury . . . may disbelieve him altogether.’ ” Postell v. State, 200 Ga. App. 208, 209 (1) (407 SE2d 412) (1991), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831) (1992).

In this case, if the jury did not believe the complaining witness’ testimony that defendant had a knife which he used in a threatening manner, there was no circumstantial evidence that he did have one and used it coercively. The circumstantial evidence did not show this but did establish that defendant was in the area looking for a ride home in the middle of the night and, after being rejected by one resident who did not know him, drove off in the victim’s car with the victim, who was seen two hours later in her nightclothes, disheveled and distressed.

Although the trial court’s assessment, that there must be circumstantial evidence of guilt in the case in order to warrant a charge on circumstantial evidence, would seem to be in line with this court’s view in Postell, supra, and Robinson v. State, 199 Ga. App. 368 (405 SE2d 101) (1991), the Supreme Court has ruled otherwise. The rule now is “that where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request . . . whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). See also Postell, supra. Even though the trial court considered the circumstantial evidence to be wholly inadequate to support a conviction, nevertheless it was present and thus distinguishes this case from Mayfield v. State, 153 Ga. App. 459 (3) (265 SE2d 366) (1980), in which there was no circumstantial evidence of the event. The only evidence in Mayfield besides the direct evidence from the officer related to the chain of custody and scientific testing of the substance. The court did not consider that to be circumstantial evidence of guilt, presumably because it did not relate to whether the transaction took place and whether it was with the defendant. See Robinson.

Thus it was error not to give the requested charge, which tailored the rule in OCGA § 24-4-6 to this case.

2. After beginning deliberations, the jury sent the trial judge a note requesting a written copy of the instructions'regarding reasonable doubt and impeaching a witness. Without advising counsel of the request or of the response decided upon, the judge sent this note back to the jury, after writing on the bottom of it: “This is not available to the jury.”

When the jury returned its guilty verdicts, appellant moved for a mistrial on the ground that the trial court had denied the jury’s request without informing the defense of the request or the court’s action. The motion was denied.

Appellant contends that the trial court erred in communicating with the jury concerning these matters outside the presence of the defense, and that it was error not to recharge the jury on these principles. This contention has merit. See Collins v. State, 191 Ga. App. 289 (2) (381 SE2d 430) (1989). Although it has been the accepted Georgia practice not to allow jurors to take written instructions with them into the jury room, Grimes v. State, 199 Ga. App. 152, 154 (2) (404 SE2d 324) (1991), the Supreme Court in Anderson v. State, 262 Ga. 26, 27 (3) (413 SE2d 732) (1992), recently held that a trial judge is not prohibited from providing the jury with written instructions. However, that case dealt with giving the jury the entire charge in writing, not a selected portion of it. Thus, defendant should have had an opportunity to urge that the jury’s request be honored at least by an oral recharge. The jury’s clear understanding of the principles regarding impeachment was particularly crucial in this case, because a conviction hinged on the victim’s credibility, which was in dispute. As to the standard of reasonable doubt, it is always critical, as a fundamental principle, and the record shows that the jury was uncertain of its meaning. Not only did they ask for it in writing, but later they indicated that they had “considerable doubt, reasonable doubt” as to Count 3 and changed their initial report on that count after the court directed them to deliberate further. See Collins, supra; compare Elliott v. State, 168 Ga. App. 781, 784 (2) (310 SE2d 758) (1983).

“When the jury requests the court to recharge them on any point, it is the court’s duty to do so. [Cits.]” Edwards v. State, 233 Ga. 625, 626 (2) (212 SE2d 802) (1975). “It was not only the court’s prerogative but its duty to inform the jury on any question of law about which they were confused, when such confusion was apparent to the court, although there was no specific request from the jury for such a charge.” Hyde v. State, 196 Ga. 475, 491 (8) (26 SE2d 744) (1943).

3. Appellant contends that the trial court erred in not accepting the jury’s not guilty verdict on count three (aggravated assault).

After announcing that it had found the defendant guilty on counts one and two, the jury stated that it could not reach a verdict on count three. After observing that the jury had only been deliberating for approximately two hours, and after ascertaining from the jury foreman that the jury felt that it could make progress toward reaching a unanimous verdict on that count, the trial court instructed the jury to deliberate further. If the jury could not then reach a verdict, the trial court stated that it would declare a mistrial. The jury subsequently returned a guilty verdict on count three.

Decided July 16, 1992

Reconsideration denied July 30, 1992

Megan C. DeVorsey, for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Contrary to appellant’s contention, the jury never returned a verdict of not guilty on count three. Consequently, this enumeration is therefore without merit.

4. It is not necessary to address the remaining enumerations, which present matters unlikely to recur on retrial.

Judgment reversed.

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


text:
    A92A0693.
    A92A0694.
    ROPAR v. TRAVELERS INSURANCE COMPANY. ALLSTATE INSURANCE COMPANY v. TRAVELERS INSURANCE COMPANY.
    (422 SE2d 34)
   Cooper, Judge.

Appellant Ropar (“Ropar”), plaintiff below, and cross-appellant Allstate Insurance Company (“Allstate”), one of several co-defendants below, appeal from the trial court’s grant of summary judgment for appellee Travelers Insurance Company (“Travelers” or “appellee”), another co-defendant below.

Ropar was employed as a property damage consultant in Florida by U. S. International Claim Management (“employer”) and was provided with an automobile for his use. Travelers issued an automobile policy, effective January 1989 through January 1990, under which employer was a named insured and various vehicles, including the automobile provided Ropar by employer, were specified as insured vehicles. In May 1989, Ropar traveled to Atlanta to investigate a fire loss. Although Ropar drove to Atlanta in the vehicle provided and insured by his employer, he did not use that vehicle to drive to the fire site. His employer had entered into a contract with String and Associates (“String”) to provide Ropar with support services. Ropar submitted evidence that as part of this contract String promised employer to provide Ropar with the services of an automobile as well as the services of an adjuster, and that in billing employer, String separately accounted for the costs of automobile services. The String adjuster picked Ropar up and drove him to and from the fire site, and it was on the return trip that the accident on which this suit is based — a hit and run — occurred, injuring Ropar. Ropar filed a “John Doe” action and served (1) State Farm Insurance, his own uninsured motorist carrier, (2) Allstate, String’s uninsured motorist carrier, and (3) Travelers. Only the Travelers policy is at issue here.

For both liability and uninsured motorist purposes the Travelers policy insures the named insured (employer), as well as anyone using any “covered auto” with the named insured’s (employer’s) permission. “Covered auto” is defined differently for liability and uninsured motorist coverage, however. With respect to liability coverage, “covered auto” is defined as any auto the named insured owns, hires, or borrows, but with respect to uninsured motorist coverage, “covered auto” is defined to encompass only any auto owned by the named insured. Thus, the Travelers policy purports to exclude from uninsured motorist coverage persons using vehicles hired or borrowed by the named insured with the named insured’s permission, even though those persons would be entitled to liability coverage. Because Ropar’s theory of recovery is that String’s auto was “hired” by employer, this difference in coverage is crucial to his case. If the narrower definition of “covered auto” for uninsured motorist coverage is enforceable under Florida law, the grant of summary judgment for Travelers on this basis was correct. If not, the trial court erred, and further consideration of whether String’s auto was “hired” by employer is necessary. (Because the policy in question was issued and delivered in Florida, Florida law governs its meaning and effect. See Howard v. Doe, 174 Ga. App. 415 (330 SE2d 370) (1985).)

1. Prior to 1984, the Florida Uninsured Motorist Statute provided in pertinent part: “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemented thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Fla. Stat. Ann. § 627.727 (1) (1981). The Florida Supreme Court held that the predecessor to this provision (Fla. Stat. Ann. § 627.0851 (1967)) required that a policy’s uninsured motorist coverage be as broad as that for liability, so that anyone covered for liability would also be entitled to uninsured motorist coverage. Mullis v. State Farm Mut. Auto. Ins. Co., 252 S2d 229 (Fla. 1971). “[Uninsured motorist coverage is statutorily required to be provided for all persons who are insured under a policy for basic liability coverage. . . . [Exclusions from uninsured motorist coverage which is required under the foregoing . . . are legally impermissible.” Auto-Owners Ins. Co. v. Bennett, 466 S2d 242, 243 (Fla. App. 2 Dist. 1984). Assuming for purposes of this discussion that Ropar’s employer “hired” the vehicle in which Ropar was riding at the time of the accident, Ropar was an insured person under the liability provisions of the Travelers policy. Accordingly, under Mullís and Bennett he would also have to be covered by the uninsured motorist portion of the policy, and any provisions to the contrary would be unenforceable.

Appellee nonetheless argued, and the trial court nonetheless held, that the limitation on uninsured motorist coverage in the Travelers policy is enforceable because Mullís has been abrogated or at least severely limited by a 1984 amendment to the Uninsured Motorist Statute which changed the above-quoted provision in the following way: “No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Fla. Stat. Ann. § 627.727 (1) (Supp. 1992) (emphasis supplied to show added language). Travelers’ position is that, after the amendment, liability and uninsured motorist coverage need only be equal in scope where the accident on which the claim is based involves a vehicle specifically insured or identified in the policy.

Appellee’s argument that Mullís was abrogated or severely limited by the 1984 amendment is belied by recent case law, however. The appellate courts of Florida continue to cite Mullís for the proposition that the scope of persons and accidents covered by the uninsured motorist provisions of a policy cannot be narrower than that covered for liability. “Since our decision in Mullís, the courts have consistently followed the principle that if the liability portions of an insurance policy would be applicable to a particular accident, the uninsured motorist provisions would likewise be applicable. . . . [Cits.]” Valiant Ins. Co. v. Webster, 567 S2d 408, 410 (Fla. 1990). “Exclusions to UM [uninsured motorist] coverage are not enforceable if the injured person is covered by the BIL [bodily injury liability] provisions of the policy.” Travelers Ins. Cos. v. Chandler, 569 S2d 1337, 1339 (Fla. App. 1 Dist. 1990) (citing Mullís).

Moreover, the placement of the amending language itself does not support appellee’s argument that the amendment limits the equal coverage requirement to claims based on accidents involving vehicles specifically insured or identified. Indeed, it seems to us that the amending language was intended to limit the type of policy to which the requirement applies rather than the scope of the requirement. Contrary to Travelers’ suggestion, our interpretation does not render the amendment “mere surplusage.” Ellsworth v. Ins. Co. of N. A., 508 S2d 395 (Fla. App. 1 Dist. 1987), a case cited and relied upon by Travelers, demonstrates exactly the type of situation the amendment was intended to address. The plaintiffs in Ellsworth sought recovery for uninsured motorist benefits, not under an automobile policy, but under their business’s comprehensive general liability policy. This policy provided limited, incidental liability coverage for vehicles used by the business, but did not specifically insure or identify any such vehicle. It was this type of policy the 1984 amendment freed from applicability of the Mullís requirement by limiting the applicability of the Uninsured Motorist Statute to “classic automobile insurance policies” which specifically insure and identify one or more vehicles. Id. at 397; accord State Farm Fire & Cas. Co. v. Polgar, 551 S2d 549 (Fla. App. 4 Dist. 1989). The Travelers policy in this case is just such a “classic automobile insurance policy.” It is a vehicle liability insurance policy delivered in Florida, insuring specifically identified vehicles registered or principally garaged in Florida. It is therefore the type of policy to which the Florida Uninsured Motorist Statute applies, regardless of the nature of the accident on which a particular claim is based.

Our conclusion that the 1984 amendment did not limit the Mullís mandate to accidents involving vehicles specifically insured or identified in the policy is further supported by a 1987 amendment to the same statute. See Fla. Stat. Ann. § 627.727 (9). This amendment provides that certain specified limitations on uninsured motorist coverage may be enforced if the insurer has a form signed by the named insured accepting the limitation, and almost all of the permissible limitations listed deal with situations involving vehicles not specifically insured or identified. See, e.g., Fla. Stat. Ann. § 627.727 (9) (c). If appellee’s argument regarding the intended effect of the 1984 amendment were correct, of course, these portions of the 1989 amendment would be unnecessary.

For these reasons, we reverse the trial court’s grant of summary judgment based on the enforcement of a definition of “covered auto” more restrictive for uninsured motorist coverage than for liability coverage.

2. In support of its motion for summary judgment, Travelers also argued that Ropar would not be covered by the liability provisions of the policy anyway, because the car in which he was riding at the time of the accident was not a car “hired” by employer as a matter of law. The Travelers policy does not define “hired.” Where a term is used in an insurance policy without being defined, it will be given its generally understood and accepted meaning, and if there is any uncertainty it will be construed against the insurer and in favor of the insured. Stuyvesant Ins. Co. v. Butler, 314 S2d 567, 571 (Fla. 1975).

Black’s Law Dictionary defines the verb “hire” as “[t]o purchase the temporary use of a thing, or to arrange for the labor or services of another for a stipulated compensation.” Black’s Law Dictionary (5th ed. 1979). This broad definition of “hire” is also reflected in the Florida case law. In Stonewall Ins. Co. v. Heter, 438 S2d 950 (Fla. App. 4 Dist. 1983), the court held there was sufficient evidence to support the conclusion that an employee injured while driving his own car was injured in a car “hired” by his employer where the employer required daily use of the employee’s car for company business as a condition of employment. And in American Employers Ins. Co. v. Yeomans, 356 S2d 1281 (Fla. App. 2 Dist. 1978), hiring was viewed as the use of something for monetary consideration. “Although the record is somewhat unclear as to the exact nature of the agreement between Construction and Yeomans [the parties to the alleged hiring] . . . the record reveals that there was monetary consideration for Yeomans’ use of the trailer and not a mere gratuitous loan thereof. Since there was a monetary consideration, Yeomans ‘hired’ the trailer. . . .” Id. at 1286. Travelers cites several cases for the proposition that a vehicle cannot be “hired” unless there is a separate contract by which the vehicle is hired or leased to the named insured for his exclusive use or control. See, e.g., Sampay v. Morton Salt Co., 482 S2d 752 (La. Ct. App. 1985). The cases cited by Travelers are from different jurisdictions and involve different circumstances, however, and are not persuasive in light of the broad view of “hire” taken by the appellate courts of Florida as shown in the cases cited above.

Decided July 16, 1992

Reconsideration denied July 30, 1992

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, for Ropar.

Irwin, Bladen, Baker & Russell, R. Chris Irwin, for Travelers.

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

Ropar has submitted testimony from David String that part of String’s contractual agreement with employer was to provide Ropar with transportation services, and that String’s bill to employer included a specific charge for the use of the automobile. This evidence is sufficient to raise a genuine issue of material fact as to whether the vehicle in which Ropar was riding at the time of the accident was a vehicle “hired” by employer, and thus a “covered auto” under the terms of the policy. Thus, a grant of summary judgment based on Travelers’ alternative argument would also be improper.

Judgments reversed.

Sognier, C. J., and McMurray, P. J., concur.