author:
Blackburn, Judge.
      Judge Harold R. Banke,

text:
    A94A0826, A94A0827.
    GENERAL MOTORS CORPORATION v. MOSELEY et al.; and vice versa.
   Blackburn, Judge.

On October 21, 1989, as Shannon Moseley drove his 1985 GMC pickup truck through an intersection, he was struck on the driver’s side by another pickup truck driven by David Ruprecht. The side saddle gas fuel tank on Moseley’s truck ruptured, and burst into flames shortly after the collision. Moseley was killed in the incident, and the medical examiner who performed an autopsy concluded that he died from thermal burns and smoke inhalation following the collision.

Thomas and Elaine Moseley, as administrators of Moseley’s estate and as parents and sole survivors, commenced this action against General Motors Corporation (GM). Following trial in the matter, the jury awarded the Moseleys $4,241,611.84 against GM and Ruprecht on their wrongful death claim, and $1.00 on a claim for pain and suffering. The jury also assessed against GM $101,000,000 in punitive damages.

Subsequently, the State of Georgia sought 75 percent of the punitive damages award pursuant to OCGA § 51-12-5.1 (e) (2), which apportions that percentage of such an award to the State of Georgia and the remaining 25 percent to the plaintiffs in a product liability action. The trial court disallowed that apportionment, finding the statute unconstitutional. On appeal, however, the Supreme Court upheld the constitutionality of OCGA § 51-12-5.1 (e) (2), and reversed. State of Ga. v. Moseley, 263 Ga. 680 (436 SE2d 632) (1993).

GM filed a motion for new trial based on newly discovered evidence, which the trial court denied, and this appeal followed. The Moseleys, dissatisfied with the $1.00 award for pain and suffering and the trial court’s denial of their request for prejudgment interest, also filed a motion for new trial which the trial court denied. The Moseleys have filed a cross-appeal from that denial of their motion for new trial.

The parties originally filed their respective appeals with the Supreme Court, on the ground that the case involved constitutional questions regarding the matter of punitive damages. However, after noting that the issues in these cases involve only the application of settled constitutional principles, and do not require the construction of either the Georgia or the United States Constitution, or a determination of the constitutionality of a law, the Supreme Court transferred the appeal and cross-appeal to this Court.

The State of Georgia has participated as an appellee in the appeal. Numerous entities also have filed amicus curiae briefs, including the United States Business and Industrial Council, the Product Liability Advisory Council, Inc., The Georgia Press Association, Lawyer for Civil Justice, the Business Roundtable, the Chamber of Commerce of the United States, and the National Association of Manufacturers. The record in the appeal and cross-appeal is immense, consisting of over 10,000 pages of record and exhibits and over 4,000 pages of trial transcript.

Case No. A94A0826

1. GM filed a motion in limine to exclude evidence of other cases involving GM pickup trucks and fuel-fed fires. During a pretrial hearing on that motion, the trial court instructed: “There’s going to have to be a showing [of substantial similarity] made before any mention of another case is made to this jury. That case is going to have to be run past the court and a determination made of the substantial similarity.” GM contends that the jury’s verdict in this case was poisoned by the plaintiffs’ counsel’s frequent and inflammatory reference to other lawsuits over post-collision fuel-fed fires without first making a showing of substantial similarity to the incident in question, in contravention of that pretrial ruling.

In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Mack Trucks v. Conkle, 263 Ga. 539 (436 SE2d 635) (1993). “Without a showing of substantial similarity, the evidence is irrelevant as a matter of law. . . .” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (183 SE2d 231) (1971). See also Hayes v. Gary Burnett Trucking, 203 Ga. App. 693 (1) (417 SE2d 676) (1992).

In the instant case, counsel for the plaintiffs actually presented no evidence of similar incidents, but repeatedly referred to 120 other lawsuits (and occasionally an estimated 240 deaths) during opening statement, examination and cross-examination of witnesses, and closing argument. The record reveals that on at least 16 occasions, plaintiffs’ counsel made such references, without ever attempting to make the required showing of similarity. On some of those occasions, GM raised no objection; several times, GM objected, but the trial court instructed plaintiffs’ counsel to continue; and on four occasions, including motions for mistrial asserted during opening statement and following closing argument, the trial court overruled GM’s objections. On one occasion, the trial court actually sustained GM’s objection and disallowed the witness’s answer.

The Moseleys contend that under these circumstances, GM failed to preserve this issue for review. However, where the trial court’s ruling on a motion in limine is violated, further objection at trial is unnecessary to preserve the matter for appellate review. Scott v. Chapman, 203 Ga. App. 58, 59 (416 SE2d 111) (1992). “The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.” (Citations and punctuation omitted.) Reno v. Reno, 249 Ga. 855, 856 (295 SE2d 94) (1982).

In the instant case, the trial court emphasized that there was to be no “unbridled offloading” of other cases and that there would have to be a showing of substantial similarity, outside the presence of the jury, before any other case was mentioned. Plaintiffs’ counsel’s repeated breach of that ruling can only be regarded as deliberate, and considering the inflammatory nature of the references to a multitude of other lawsuits and deaths, we are unable to say as a matter of law that the frequent violation of the trial court’s ruling did not influence the jury’s verdict. Scott v. Chapman, supra; Seay v. Urban Med. Hosp., 172 Ga. App. 344 (323 SE2d 190) (1984).

The plaintiffs suggest that GM’s concern over this issue during the trial and on appeal is a “red herring.” Relying upon Skil Corp. v. Lugsdin, 168 Ga. App. 754 (309 SE2d 921) (1983), they argue that a showing of substantial similarity is a foundational requirement only when evidence of other incidents is offered for the purpose of proving the existence of a defect, as opposed to showing notice of a defect.

The plaintiffs’ argument begs the question, notice of what defect? If the relative defects are not similar, how can one be notice of the other? Regardless of whether the proper standard is “substantial similarity” or mere “similarity,” the plaintiffs failed to make either showing. The plaintiffs’ reliance upon Skil Corp. is misplaced, as that case addressed the relevance and permissible use of evidence of prior incidents, and not the foundational requirements for admission of that type of evidence. The similarity of the various incidents was conceded by Skil Corp. as is implicit in the opinion and nothing therein eliminates the requirements of a showing of similarity where such is in dispute. As stated above, the Supreme Court’s holding in Mack Trucks v. Conkle, supra, makes it clear that before such evidence is admissible for whatever appropriate use, there must be a showing of substantial similarity to the incident at issue. The plaintiffs’ failure to do so and the repeated breach of the trial court’s ruling on the motion in limine in this case constitute reversible error.

GM also moved in limine to exclude evidence of discovery disputes in this or other lawsuits, and during the hearing on the motion, counsel for the plaintiffs assured the trial court that they would not introduce any such evidence. Notwithstanding that representation, several times during the trial, the plaintiffs’ counsel inquired or remarked about GM’s attempt to hide information regarding problems with the full-size pickup truck. Upon direct examination of a former GM engineer who left GM’s employment in 1989, counsel elicited testimony about GM’s practice of giving elusive answers to interrogatories, “woodshedding” engineers who testified, and incomplete searches of engineering files in response to discovery requests. Inasmuch as evidence of or reference to any other lawsuits was improper, it follows that this evidence of discovery disputes likewise should have been excluded.

2. Ronald Elwell, who was employed by GM as a safety engineer for 28 years, testified on behalf of the plaintiffs, regarding the development of the side saddle fuel tank on GM pickup trucks. (Elwell left GM in 1989 following an employment dispute, and subsequently sued GM over that dispute.)

GM had filed a motion in limine seeking exclusion of Elwell’s testimony on the grounds that any knowledge he had regarding the fuel tank design would be privileged, but the trial court denied the motion to the extent that GM sought total exclusion of Elwell’s testimony. However, the court noted that GM’s argument regarding the attorney-client privilege was well-made, and that GM could object on a question-by-question basis during the trial. GM contends that the trial court erred in not excluding Elwell’s testimony in its entirety as privileged.

The issue of disqualification of a witness usually arises in the context of one party calling as a witness an expert who was formerly retained by the adverse counsel or party. See Annot., 96 ALR2d 125 (1964). In some circumstances, the expert may be disqualified because of an extension of the attorney-client privilege. Heyde v. Xtraman, Inc., 199 Ga. App. 303, 308-309 (404 SE2d 607) (1991); Wang Laboratories v. Toshiba Corp., 762 FSupp. 1246 (E.D. Va. 1991); Marvin Lumber &c. Co. v. Norton Co., 113 FRD 588, 591 (D. Minn. 1986).

In some jurisdictions, the privilege also “has been interpreted as preventing disclosure of privileged information by former employees. [Cits.]” Valassis v. Samelson, 143 FRD 118, 124 (E.D. Mich. 1992). However, in Georgia, communications between principal and agent are not privileged, even if such communications ultimately reach the principal’s attorney and are used in preparing a defense to litigation arising out of the occurrence forming the subject matter of the communications. Atlantic Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 150 (141 SE2d 112) (1965). The attorney-client privilege is confined to its narrowest permissible limits under OCGA §§ 24-9-21 and 24-9-24. Ostroff v. Coyner, 187 Ga. App. 109 (4) (369 SE2d 298) (1988).

In the instant case, Elwell was not called as an expert witness, but testified about his knowledge of the development of the side saddle fuel tank design acquired through his years of employment with GM. As a GM employee, he worked with a defense team in other cases involving that subject, but the defense team’s utilization of Elwell’s expertise did not bestow any privilege upon Elwell’s experience and observations. “ ‘It is axiomatic that one cannot render privileged that which is otherwise not privileged merely by placing it in the hands of his attorney.’ [Cit.]” Atlantic Coast Line R. Co. v. Daugherty, supra at 150. Accordingly, the trial court correctly admitted Elwell’s testimony.

3. During the litigation over his employment dispute, Elwell deposed Theodore Kashmerick, a retired GM engineer, for the purpose of asking Kashmerick about Elwell’s claim against GM. During that deposition, Kashmerick testified that in 1980 or 1981, he discarded a lot of old documents, some dating back to 1953, stored in his filing cabinets. He did not know the specific contents of the discarded documents, but they concerned the design of the light to heavy GM trucks. He had undertaken this “housecleaning” at the request of the GM legal department, which thought that some of the documentation may be controversial and subject to misinterpretation. GM’s counsel was present during the deposition but did not cross-examine Kashmerick.

Before the trial in the instant case, Kashmerick died, and the plaintiffs were allowed to play the video deposition of Kashmerick for the jury. GM contends that this deposition testimony was inadmissible, and we agree.

OCGA § 24-3-10 “requires as the prerequisite to the admission in a subsequent action of the prior testimony of a since deceased witness that the parties and issues in the two actions be substantially the same.” Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 876 (2) (285 SE2d 566) (1981). The purpose of that limitation is “to insure that the party against whom the testimony is now offered had an opportunity adequately to cross examine the witness at the previous proceeding.” Id. at 877. That opportunity to cross-examine must have been such that the cross-examination, or the decision not to cross-examine, was meaningful. Craft v. State, 154 Ga. App. 682, 683 (269 SE2d 490) (1980).

In the instant case, the issue in Elwell’s employment litigation was unrelated to any issue in the plaintiff’s product liability action against GM. To the extent that Kashmerick’s testimony about discarding old, unspecified documents on file could be said to have some relevance to the instant case, GM’s employment counsel certainly had no reason to cross-examine Kashmerick regarding that “housecleaning” at the time of the deposition in that employment litigation. As such, with regard to the instant case, the opportunity to cross-examine Kashmerick during the deposition was not meaningful, and the deposition testimony should have been excluded.

4. Around 1983, GM began the process of totally re-designing its full-size pickup trucks, culminating in actual production of the new truck in 1988. The re-designed truck’s fuel tank was situated inside the frame of the truck. GM also moved in limine to exclude any reference to this re-design as inadmissible evidence of subsequent remedial measures, but the trial court denied the motion.

“[EJvidence of subsequent remedial measures is inadmissible to prove negligence. [Cit.]” Orkin Exterminating Co. v. Dawn Food Products, 186 Ga. App. 201 (366 SE2d 792) (1988). “The reason for excluding such evidence lies on sound public policy ‘that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrong-doers.’ [Cit.]” Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 396 (339 SE2d 619) (1985). See also Brooks v. Cellin Mfg. Co., 251 Ga. 395 (306 SE2d 657) (1983).

The plaintiffs argue that inasmuch as the plans for the re-design of the GM pickup truck began around 1983 and the product appeared on the market in 1988, the design change actually preceded the 1989 injury and death in this case, thus rendering inapplicable the rule regarding admissibility of subsequent remedial measures. However, that notion overlooks the fact that in this type of case, planning and implementation of design changes may take several years. In such situations, the same concerns are present as where the remedial measures actually follow an injury. As such, the fact that the design change preceded the injury in this case provides no basis for not applying the exclusionary rule.

The plaintiffs also contend that application of this rule is limited to negligence actions. (They asserted both negligence and strict liability as theories of recovery.) It appears that this issue has not been addressed in Georgia. See Orkin Exterminating Co. v. Dawn Food Products, supra. However, other jurisdictions are divided as to whether evidence of subsequent remedial measures should be admitted in strict liability actions. Robinson v. G. G. C., Inc., 808 P2d 522 (Nev. 1991); Pollard v. Ashby, 793 SW2d 394 (Mo. App. 1990); Dura Corp. v. Harned, 703 P2d 396 (Alaska 1985); American Broadcasting Cos. v. Kenai Air of Hawaii, 686 P2d 1 (Hawaii 1984); Caldwell v. Yamaha Motor Co., 648 P2d 519 (Wyo. 1982); Kallio v. Ford Motor Co., 391 NW2d 860 (Minn. App. 1986); D. L. By Friederich’s v. Huebner, 329 NW2d 890 (Wis. 1983); Klug v. Keller Indus., 328 NW2d 847 (S.D. 1982); Sanderson v. Steve Snyder Enterprises, 491 A2d 389 (Conn. 1985); Chapa v. Garcia, 848 SW2d 667 (Tex. 1992) (admitting evidence of subsequent remedial measures); Krause v. American Aerolights, 762 P2d 1011 (Or. 1988); Cox v. State, 844 SW2d 173, 178 (Tenn. App. 1992); Alderman v. Wysong & Miles Co., 486 S2d 673 (Fla. App. 1986); Troja v. Black & Decker Mfg. Co., 488 A2d 516 (Md. App. 1985) (excluding evidence of subsequent remedial measures).

Jurisdictions allowing such evidence reason that inasmuch as the doctrine of strict liability focuses on the character of the product placed in the stream of commerce, and not the conduct of the manufacturer, “it is manifestly unrealistic to suggest that... a [mass] producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule . . . does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability.” Ault v. Intl. Harvester Co., 528 P2d 1148, 1152 (Ca. 1974).

The jurisdictions that continue to exclude evidence of subsequent remedial measures in strict liability cases based on public policy find it “difficult to understand why this policy should apply any differently where the complaint is based on strict liability as well as negligence. From a defendant’s point of view it is the fact that the evidence may be used against him which will inhibit subsequent repairs or improvement. It makes no difference to the defendant on what theory the evidence is admitted; his inclination to make subsequent improvements will be similarly repressed. The reasoning behind this asserted distinction we believe to be hypertechnical, for the suit is against the manufacturer, not against the product.” Werner v. Upjohn Co., 628 F2d 848, 857 (4th Cir. 1980).

In Georgia, although evidence of subsequent remedial measures is generally inadmissible in negligence actions, there are several exceptions to that rule, “such as when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on.” Chastain v. Fuqua Indus., 156 Ga. App. 719, 722 (275 SE2d 679) (1980). Such evidence may also be admitted where the feasibility of repair or modification is an issue. Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262 (427 SE2d 547) (1993). However, when evidence of subsequent remedial measures is admitted for one of those exceptions, the jury should be instructed as to the limited purpose of its admission and admonished not to consider it as evidence of negligence. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (178 SE2d 543) (1970).

In view of the numerous exceptions to the general rule even in negligence actions, we find persuasive and hereby adopt the rationale discussed above for admitting evidence of subsequent remedial measures in strict liability cases. This holding is consistent with the growing trend in other states that have considered the issue. See Krause v. American Aerolights, supra at 1015. However, where negligence and strict liability theories are asserted jointly in an action, at a minimum the jury must be instructed as to the proper use and limits of the evidence. See, e.g., Sanderson v. Steve Snyder Enterprises, supra at 396, n. 11. In such cases, it may be advisable to bifurcate or trifurcate the proceeding in order first to litigate the negligence claim, wherein the evidence of subsequent remedial measures may not be admissible, and then proceed to hear evidence on the strict liability theory (including evidence of any subsequent repairs or modifications) if the defendant prevails in the negligence phase of the trial.

5. At trial, Mike Juras, who was the chief design engineer for GM’s pickup truck division from 1982 until 1989, testified that in his opinion, the pickup trucks with side saddle fuel tanks were safe trucks. He recalled the crash testing of the pickup truck, and noted that GM tested the truck for side impact collisions at 50 mph, which far exceeded the industry standard of 20 mph. On cross-examination, Juras explained that by industry standard, he referred to the Federal Motor Vehicle Safety Standard 301 (FMVSS 301). Counsel for the plaintiffs then inquired if he was aware that the National Highway Traffic Safety Administration (NHTSA) had initiated an investigation to verify that GM complied with that federal standard. The investigation had not been completed by the time of trial.

Before trial, GM moved in limine to exclude any reference to that NHTSA investigation, on the ground that it was hearsay. During the hearing on that motion, counsel for the plaintiffs generally agreed that the not yet completed, NHTSA investigation was hearsay, but argued that they could introduce it if GM claimed compliance with FMVSS 301. The trial court deferred ruling on the motion, but instructed that there was to be no mention before the jury of a NHTSA investigation until the court could rule on it.

We agree with GM that admission of this evidence of a pending NHTSA investigation was error. The mere fact that the NHTSA was investigating GM’s compliance with the federal standard in question neither impeached nor confirmed GM’s direct evidence that it had complied with that standard. “Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” (Citations and punctuation omitted.) Tucker Fed. &c. Assn. v. Rawlins, 209 Ga. App. 649, 652 (434 SE2d 94) (1993).

6. The trial court allowed counsel for the plaintiffs to question Robert Stempel, GM’s former Chairman and CEO, as to various “standards” by which the jury should evaluate GM’s actions in this matter. Those “standards” included a standard of caring about its customers as advertised by GM; a standard of honesty also promoted by GM; a standard promulgated by the Society of Automotive Engineers (SAE) recommending that fuel tanks should be protected by the frame and body of a vehicle; GM’s own internal testing standards for the vehicle in question; and the “industry standard,” i.e., the design implemented by other manufacturers. GM contends that this line of questioning inappropriately asked for legal standards. We disagree.

The inquiry about caring and honesty addressed GM’s observance of its own commercial promotions, and not legal standards of conduct. The inquiry about the SAE recommendation and the fuel tank design utilized by other manufacturers concerned the standard in the industry, which was relevant (although not conclusive) to whether GM exercised ordinary care, and did not ask for legal standards. Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41, 46 (390 SE2d 61) (1989). Likewise, the subject of GM’s internal testing standards pertained to the issue of ordinary care, rather than a legal standard. Accordingly, the trial court did not err in allowing the inquiry.

7. GM contends that the trial court erred in denying its motion for new trial based upon newly discovered evidence. At trial, the driver of a vehicle that was struck by Shannon Moseley’s truck, and a police officer who arrived on the scene shortly after the collision, testified that they saw Shannon moving about as if trying to get out of the burning truck, and heard him screaming. GM attempted to counter those eyewitness accounts with expert testimony that Shannon probably was either knocked unconscious or killed by the initial impact of the collision. In support of its motion for new trial, GM proffered the testimony of two individuals who claimed to have arrived at the scene before the police officer and observed that Shannon Moseley appeared to be unconscious. They had come forward after hearing of the verdict following the trial.

In order to obtain a new trial based on newly discovered evidence, the movant must show, among other things, that the evidence will not merely impeach the credit of a witness. Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980). In the instant case, the testimony of the two new eyewitnesses would serve merely to discredit the testimony of the two eyewitnesses who appeared on behalf of the plaintiffs. For that reason, the trial court correctly determined that the newly discovered evidence submitted by GM did not warrant a new trial. Leventhal v. Setter, 208 Ga. App. 158, 162 (430 SE2d 378) (1993).

8. GM attacks the award of punitive damages on several grounds. Although the award for punitive damages necessarily falls with the reversal of the judgment in this case, we address GM’s contentions regarding issues that may recur upon retrial.

(a) GM asserts that the uncontroverted evidence that its design complied with the FMVSS 301, requiring withstanding side impact crashes at 20 mph, precluded any award for punitive damages. In Stone Man v. Green, 263 Ga. 470, 472 (435 SE2d 205) (1993), the Supreme Court held that “punitive damages, the purpose of which is to ‘punish, penalize or deter,’ are, as a general rule, improper where a defendant has adhered to environmental and safety regulations,” because such compliance tends to demonstrate the absence of wilful misconduct, malice, fraud, etc., necessary to assess punitive damages. However, nothing in Stone Man precludes an award of punitive damages where, notwithstanding the compliance with applicable safety regulations, there is other evidence showing culpable behavior.

In the instant case, there was evidence that GM was aware of the problems inherent with placement of the fuel tanks outside the frame on its full-size pickup trucks, which exposure could have been significantly reduced by application of a steel shield around the tank, or by using retaining straps with rounded edges, yet it did not implement such modifications because of economic considerations. This evidence of a knowing endangerment of all who may come in contact with one of the 5,000,000 GM full-size pickup trucks still on the road, motivated by economic benefit, was sufficient to support an award of punitive damages. Mack Trucks v. Conkle, supra at 544.

(b) GM also contends that the jury’s award of punitive damages was invalid because it constituted an impermissible extraterritorial award, which applied the Georgia Tort Reform Act beyond Georgia and which violated the Commerce Clause of the United States Constitution. During closing argument on the punitive damages claim, counsel for the plaintiffs asked the jury to award $20 for each of the 5,000,000 GM pickup trucks with side saddle fuel tanks that were still on the road. The $101,000,000 verdict suggests that the jury applied that equation. However, GM’s argument overlooks the fact that any of those 5,000,000 remaining trucks could be driven into the state at any given time. For that reason alone, we do not regard the jury’s award as extraterritorial in scope.

(c) Punitive damages must be “reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21 (111 SC 1032, 113 LE2d 1) (1991). In the instant case, GM concedes that the proportion of punitive damages to compensatory damages is not dispositive, but nevertheless contends that the proportion in the instant case, i.e., 101,000,000 to 1, demonstrates the excessiveness of the award.

In Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613 (1) (409 SE2d 501) (1991), the Supreme Court held that the concept of proportionality as a legal limitation on the amount of punitive damages did not apply where the award was meant as a deterrence. The Court further noted that “[w]hile the Supreme Court in Haslip analyzed the punitive damages award by comparing it to the actual award, nothing in the opinion mandates such a comparison.” Id. at 615.

Pursuant to OCGA § 51-12-5.1 (e) (1), there is no limitation as to the amount that may be awarded as punitive damages. However, “[o]nly one award of punitive damages may be recovered in a court in this state from a defendant for any act or omission if the cause of action arises from product liability, regardless of the number of causes of action which may arise from such act or omission.” Id. Considering the public nature of the harm in this case, the corporate defendant herein involved, and the protection afforded by the statutory “one award” provision, the amount of the punitive damages assessed against GM was not unreasonable and rationally served the purpose of punishing and deterring.

(d) GM also contends that the trial court erred in its instructions to the jury by refusing to define the “clear and convincing evidence” standard of proof required for punitive damages. We agree.

GM requested that the trial court instruct the jury that “as to the issue of punitive damages, the plaintiff must prove that the plaintiff is entitled to relief by clear and convincing evidence to a reasonable certainty. There is a higher burden of proof than the mere preponderance of the evidence.” The trial court, however, refused that request and only gave the pattern charge on punitive damages, which contained no definition of clear and convincing evidence. During its deliberations, the jury requested clarification of the criteria for awarding punitive damages and the trial court repeated the pattern charge but again refused to define clear and convincing evidence as requested by GM.

In Clarke v. Cotton, 207 Ga. App. 883, 885 (429 SE2d 291) (1993), this Court considered the identical charge requested by GM in the instant case, and concluded that it was “argumentatively incomplete,” as it did not define the parameters of that intermediate standard of proof. On certiorari, however, the Supreme Court disagreed and held that where, as here, two different standards of proof apply (preponderance of the evidence for compensatory damages, clear and convincing evidence for punitive damages), “even in the absence of a request to charge . . . the court is obligated to define both standards to avoid misleading or confusing the jury.” Clarke v. Cotton, 263 Ga. 861, 862 (440 SE2d 165) (1994).

In Clarke, the Supreme Court noted that the “to a reasonable certainty” portion of the requested charge was an incorrect statement of the law, and thus it was properly refused. However, the Court further observed that the portion of the requested charge defining clear and convincing evidence as greater than the preponderance of the evidence standard was a correct statement of the law, and indicated that it would have been preferable for the trial court to have given that incomplete charge rather than giving no charge at all. Id.

In the instant case, in view of the repeated requests for such by GM and the jury’s apparent confusion over the issue of punitive damages, the trial court erred in refusing to define for the jury the clear and convincing standard of proof. Further, although the evidence supporting an award of punitive damages was sufficient, it was not overwhelming, and the omission may not be dismissed as harmless error. Id.

9. Under OCGA § 51-12-5.1 (d) (1) and (2), in any case where punitive damages are sought, the trier of fact must first determine whether an award of such is appropriate, and then, if it is found that the evidence authorizes an award of punitive damages, the trial is to be recommenced to take evidence for the jury to consider in deciding the amount of the award. “ ‘Thus, in regard to the adjudication of issues concerning the recoverability and amount of punitive damages in a tort case, OCGA § 51-12-5.1 made a bifurcated trial mandatory, whereas it had previously been discretionary with the trial court.’ [Cit.]” City of Monroe v. Jordan, 201 Ga. App. 332, 334-335 (411 SE2d 511) (1991). The trial court observed that mandatory bifurcation in this case.

In certain circumstances, however, that bifurcated procedure may be inadequate to avoid confusing the jury in its determination of the issues of compensatory damages and punitive damages. That is, evidence appropriately admitted to show the propriety of punitive damages may influence the jury in deciding the issue of liability for compensatory damages. Further, any reversible error in the admission of evidence pertaining to the entitlement to punitive damages makes it difficult, if not impossible, to affirm a judgment on the compensatory claim, when both claims are litigated in the same phase of the trial. In such situations, it may be advisable to employ a trifurcated procedure, wherein compensatory damages are litigated in the first phase of the trial; the propriety of punitive damages is litigated in the second phase; and the amount of punitive damages to be awarded is litigated in the third phase of the proceeding.

In the instant case, during the phase of the trial designated for taking evidence regarding the amount of punitive damages to be awarded, the parties argued but presented no additional evidence. There was no need to do so, because all the evidence regarding punitive damages was admitted during the first phase of the trial in which the claim for compensatory damages was litigated. In this situation, notwithstanding the bifurcated procedure, it is difficult to envision the jury not being improperly influenced in its determination of GM’s liability for compensatory damages by the infusion of evidence pertaining to the punitive damages issue. The problem, of course, was compounded by the erroneous admission of certain evidence on the issue of punitive damages, such as the inflammatory references to a multitude of other lawsuits. As a consequence of that intermingling of evidence and issues, the judgment for the compensatory damages must fall with the judgment for the punitive damages. A trifurcated procedure could have eliminated this danger of issue confusion and possibly avoided the necessity of retrying the entire matter.

As discussed above, even prior to the enactment of OCGA § 51-12-5.1, the trial court had the discretion to bifurcate trials when such would promote the convenient resolution of the issues. City of Monroe v. Jordan, supra. Trifurcation likewise would fall within a trial court’s discretion to sever the trial of the issues. See Hayes v. Gary Burnett Trucking, supra at 695. Other jurisdictions have utilized such a procedure when it avoided confusion of issues in the case and no party was prejudiced by the severance. See Myers v. Celotex Corp., 594 A2d 1248 (Md. App. 1991); Coughlin v. Owens-Illinois, 27 Cal. Rptr. 2d 214 (1993).

It should be noted that where both negligence and strict liability are asserted as theories of recovery, and evidence of subsequent remedial measures is presented to prove the latter theory, it may be necessary to subdivide the second phase of such a trifurcated proceeding. In that situation, because evidence of subsequent remedial measures is inadmissible in negligence actions, the negligence claim would be litigated first, and then, if liability is found by the jury applying that theory, the matter would proceed to the third phase to determine the amount of the punitive damages award. However, if no negligence is found, then evidence pertaining to the strict liability claim would be presented, including any evidence of subsequent remedial measures. This subdivision of the second phase would eliminate any confusion of the two theories of recovery, and would not require any significant duplication of effort in the presentation of evidence. Further, even in negligence actions, after liability has been established during the first phase, evidence of subsequent remedial measures may become relevant and admissible to show the appropriate degree of deterrence or punishment.

Case No. A94A0827

10. In their cross-appeal, the plaintiffs contend that the trial court erred (1) in denying their motion for new trial on the claim for pain and suffering, and (2) in striking the award for prejudgment interest which had been based on a combination of the compensatory and punitive damages. Our disposition of Case No. A94A0826, requiring retrial of the entire matter, renders moot the plaintiffs’ cross-appeal from the denial of their motion for new trial. However, we address the issue of prejudgment interest, as it may recur upon retrial.

When the trial court entered judgment on the jury’s verdict, it originally assessed prejudgment interest in the amount of $1,568,223.86. Subsequently, however, the trial court struck that assessment, on the ground that the award of punitive damages may not be counted in determining whether the judgment exceeded the plaintiffs’ unliquidated damages demand of $5,000,000.

OCGA § 51-12-14 (a) provides that “[w]here a claimant has given written notice by registered or certified mail to a person against whom claim is made of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” This statute serves as “a coercive tool to offset injury and financial loss by encouraging a tortfeasor to make amends for his injurious conduct by making immediate payment short of litigation.” Williams v. Runion, 173 Ga. App. 54, 60 (325 SE2d 441) (1984).

The purpose of prejudgment interest is to compensate the injured party for the delay in receiving money damages. Underwater Devices v. Morrison-Knudsen Co., 717 F2d 1380, 1389 (Fed. Cir. 1983); Pino v. Protection Maritime Ins. Co., 490 FSupp. 277, 280 (D. Mass. 1980); Marks v. Sanzo, 345 SE2d 263, 267 (Va. 1986). Punitive damages, however, are intended to punish, penalize, or deter a defendant, Mack Trucks v. Conkle, supra. It follows that awarding prejudgment interest on punitive damages would not further the purpose of OCGA § 51-12-14 (a).

Decades before the enactment of OCGA § 51-12-14 (a), the Supreme Court held that “[i]n a case of tort, when the law allows the recovery of exemplary damages, the allowance of which and the amount thereof being entirely in the discretion of the jury, we do not think that the law contemplates or will allow interest to be computed on the sum awarded by them.” (Emphasis supplied.) Ratteree v. Chapman, 79 Ga. 574, 581 (4 SE 684) (1887). We find nothing in the statute requiring deviation from that rule. See also Barbush v. Oiler, 158 Ga. App. 625 (281 SE2d 359) (1981). Accordingly, the trial court properly considered only the judgment for compensatory damages in determining whether the plaintiffs were entitled to prejudgment interest.

Judgment reversed in Case No. A94A0826; judgment dismissed as moot in part, affirmed in part in Case No. A94A0827.

Birdsong, P. J., concurs. Senior Appellate Judge Harold R. Banke concurs specially.

Judge Harold R. Banke,

concurring specially.

On motion for reconsideration, I have been persuaded that the punitive damages award in this case was untenable as the product of an inflamed jury. Accordingly, I cannot concur with the portion of Division 8 of the opinion that even reluctantly approves of the amount of the punitive damages awarded.

This case demonstrates in dramatic fashion the inadequacy of the current method of determining punitive damages in Georgia. Under OCGA § 51-12-5.1, punitive damages are awarded solely to punish, penalize, or deter the defendant. The size of an award of punitive damages is generally left to the “enlightened conscience” of the jury, and the jury’s award will not be disturbed on appeal unless it is so excessive or inadequate as to shock the “judicial conscience.” Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 766 (386 SE2d 120) (1989).

The United States Supreme Court has indicated that punitive damages must be reasonable in amount and rationally serve the purpose for which they are awarded; in applying that standard, it approved a review process that compared the punitive damages award to the compensatory award. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21 (111 SC 1032, 113 LE2d 1) (1991). However, our own Supreme Court has rejected the concept of proportionality where the punitive damages award is intended as a deterrence. Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613 (409 SE2d 501) (1991).

As a result, there is a great dearth of objectivity in the analysis or evaluation of punitive damages awards in Georgia. Our law provides much platitude and little guidance for determining an award of punitive damages. See Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. at 616. So long as the subjective exercise of a jury’s or a judge’s “conscience” remains the operative standard in assessing or reviewing an award of punitive damages, questions of excessiveness or inadequacy will continue to arise in cases involving punitive damages.

In the instant case, the trial was conducted in an ostensibly inflamed atmosphere, with counsel repeatedly introducing the inflammation by frequent reference to other incidents of post-collision fuel-fed fires, in violation of the order on the motion in limine by not first showing the requisite similarity. The motion for reconsideration suggests that this court is either irrational or subhuman. The merits of this case deserve more level-headed consideration than that advocated by Moseley’s counsel.

Inasmuch as the award for punitive damages in this case necessarily falls with the reversal of the judgment on the various evidentiary grounds, the opinion’s analysis of the propriety of the punitive damages is dictum, or perhaps even advisory. Nevertheless, to the extent that any discussion of this issue is appropriate in this appeal, upon further reflection I conclude that the amount of punitive damages awarded should not be upheld in this case because it was the product of an inflamed, rather than enlightened, jury.

Decided June 13, 1994

Reconsiderations denied July 14, 1994.

King & Spalding, Griffin B. Bell, Frank C. Jones, Byron Attridge, Chilton D. Varner, Philip E. Holladay, Jr., for appellant.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Robert D. Cheeley, Patrick A. Dawson, Albert M. Pearson III, Andersen, Davidson & Tate, Gerald Davidson, Jr., for appellees.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr., G. Conley Ingram, amici curiae.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0831.
    DOUGHERTY, McKINNON & LUBY, P.C. et al. v. GREENWALD, DENZIK & DAVIS, P.C. et al.
    (447 SE2d 94)
   Smith, Judge.

Dougherty, McKinnon & Luby, P.C. (DM&L), formerly Dougherty, McKinnon & Greenwald, P.C. (DM&G), a professional corporation of certified public accountants in Columbus, Georgia, and other persons and entities not relevant here, brought this action against Greenwald, Denzik & Davis, P.C. (GD&D), a competing accounting firm formed by former DM&G employees. DM&L sought to recover certain liquidated damages required under the terms of an employment termination agreement and other damages. The defendants answered denying the enforceability of the agreement and moved for summary judgment on this issue, which was granted. This appeal was filed in the Supreme Court, which transferred it to this court under the authority of Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993). The sole issue presented by this appeal is the enforceability of certain terms in the agreement executed by the shareholder/employees of DM&G.

The agreement provides for repurchase of the shareholder/employee’s stock in the corporation upon termination of employment. It also provides that “if a shareholder/employee terminates his employment with DM&G by reason other than his death, normal retirement or total and permanent disability, the entitlement of such shareholder/employee to receive the entire repurchase price payable hereunder for his . . . capital stock should be limited due to the possibility of such shareholder/employee becoming a competitor of and taking from DM&G the representation of one or more of its clients, and, in fact, such shareholder/employee should pay to DM&G compensation in the form of liquidated damages for his taking from DM&G of one or more of its clients.” It provides that if a shareholder/employee leaves DM&G for any reason other than death, retirement, or permanent and total disability and performs services for DM&G clients within three (3) years after leaving DM&G, liquidated damages must be paid. The damages are equal to 125 percent of the amount billed by DM&G to each such client for the fiscal year immediately prior to the year of termination or the year the client is taken, whichever is later.

DM&G shareholder/employees Richard Greenwald and Richard Denzik and non-shareholder/employee Charles Davis left DM&G on April 19, 1991. They formed a competing corporation, GD&D, in Columbus, and began their new accounting practice. A number of DM&G clients left DM&G and are now clients of GD&D, causing a substantial drop in DM&L’s revenue.

1. DM&L contends the trial court erred in ruling that the provisions of the agreement in issue constitute a covenant not to compete because the agreement does not prohibit competition; on the contrary, competition is expressly permitted and anticipated. They argue that the payment of liquidated damages is not a penalty for competition, but rather a recognition that the corporation must repurchase the departing accountant’s stock and will suffer damages that are difficult to calculate. They analogize the liquidated damages provision to the purchase of a business. We do not agree.

The public policy of Georgia regarding this matter may be discerned from the language in Art. Ill, Sec. VI, Par. V (c) of the Georgia Constitution of 1983, which provides that “[t]he General Assembly shall not have the power to authorize any contract or agreement which may have the effect of or which is intended to have the effect of defeating or lessening competition. . . ,” In carrying out this policy, “[i]t is the legal effect of a contractual provision, not the parties’ specified manner of enforcement of the provision, that determines enforceability vel non [of a contract]. Notwithstanding the fact that a liquidated damages provision represents the parties’ agreement as to compensation for a breach of contract, if the underlying contract itself violates some principle of law, the liquidated damages provision cannot be enforced. See OCGA § 13-6-7. Pursuant to OCGA § 13-8-2 (a) (2), contractual provisions ... in general restraint of trade are, as a matter of law, unenforceable. . . . [T]he mere fact that such a provision may happen to be couched in terms of liquidated damages, rather than as the personal covenant of the contracting party, will not suffice to render it enforceable. [Cits.]” Club Prop. v. Atlanta Offices-Perimeter, 180 Ga. App. 352, 353 (1) (348 SE2d 919) (1986).

The agreement calls for payment not of a “purchase price” but of a severe penalty, triggered simply by the fact of competition. The penalty exacted for competition will be set off against, and is likely to eliminate, the net effect of the stock repurchase provision. Its effect, therefore, is at least to give pause to those employee accountants who may consider competing against the corporation. Like the provision under review in Club Prop., it has the ultimate effect of securing the promisors’ agreement that they will not compete with DM&G for three years unless a steep price is paid. This has the effect of lessening competition, and it was intended to have such effect; absent the terms of the agreement appellees would be free to compete without “purchasing” the right to do so and without any conditions. “We can perceive no meaningful difference between such an agreement and the covenant of an individual that he will not compete for another’s business customers.” Id. at 354 (2).

2. Although contracts in general restraint of trade are void as being against public policy, restrictive covenants in employment contracts are considered to be only in partial restraint of trade. They will be upheld if the restraints imposed are reasonable, founded on valuable consideration, reasonably necessary to protect the interest of the party in whose favor they are imposed, and not unduly prejudicial to the public interest. W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). Determination of the reasonableness of the restraint is a question of law for the court. Id. As a “ ‘helpful tool’ in examining the reasonableness” of the restraint, a three-element test has evolved. Id. This involves consideration of whether the restraint is “ ‘strictly limited in time and territorial effect and [is] otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.’ [Cit.]” Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 377 (297 SE2d 473) (1982). Because we have determined that the provisions at issue here are not functionally different from a covenant not to compete in an employment contract, we apply this test and find that the restraint in this contract is unreasonable and unenforceable.

(a) This restraint prohibits former employee accountants from performing services for any and all former clients of DM&G regardless of whether they performed services for or had a business relationship with these clients while employed at DM&G. Because of the nature of the professional-client relationship, appellees would have gained some degree of trust, confidence, and rapport with clients for whom it performed services at DM&G, and DM&G has a legitimate need to protect itself from the risk that an employee accountant may later use such a relationship to appropriate or “pirate” such clients for their own benefit. Singer, supra, 250 Ga. at 377. However, the restraint here provides DM&G with greater protection than needed. The former employees have no unfair competitive advantage regarding customers with whom they did not work and had no business relationship while employed at DM&G. Id. at 377-378. The restriction is therefore overbroad.

(b) The restraint is overbroad in another way as well. It prohibits not only solicitation of former DM&G clients but also acceptance of any work from such clients regardless of who initiated the contact. This is an unreasonable restraint as well, because in addition to overprotecting DM&G’s interest, it “unreasonably impacts on [appellees] and on the public’s ability to choose the professional services it prefers. [Cit.]” Singer, supra at 377.

(c) Finally, the restriction is not limited geographically or territorially. In Fuller v. Kolb, 238 Ga. 602 (234 SE2d 517) (1977), the Supreme Court held that a similar restriction prohibiting an employee accountant from performing services for any client of the employer for a two-year period was overbroad and unreasonable because of the absence of such a territorial limitation. Id. at 603-604. In doing so, the court disapproved a prior case, Kirshbaum v. Jones, 206 Ga. 192 (56 SE2d 484) (1949), in which a restriction without a territorial limitation was upheld.

Recently, the Supreme Court harmonized Fuller and Kirshbaum in W. R. Grace & Co. v. Mouyal, supra, 262 Ga. at 467, n. 3, noting that a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographical terms. The rationale for this rule is that such a broad restriction “does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, [and therefore] is otherwise unreasonable and overbroad in its attempt to protect the employer’s legitimate interest in keeping the employee from taking advantage of the goodwill generated during his employment with the employer to lure employer customers away. The Kirshbaum holding is applicable to restrictive covenants limited to employer clients serviced by the former employee during his tenure with the employer.” Id.

Because we find that the restraint in the termination agreement is, in effect, a covenant not to compete, and because it was unreasonable in several respects, it is unenforceable. Consequently, the trial court properly granted summary judgment to appellees on this issue.

Decided June 30, 1994

Reconsideration denied July 14, 1994

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, Forrest L. Champion, Jr., for appellants.

Buchanan & Land, Clay D. Land, Benjamin A. Land, for appellees.

Judgment affirmed.

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

       In this regard, see Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (405 SE2d 253) (1991). In Jackson & Coker, the Supreme Court held that OCGA § 13-8-2.1, enacted in 1990 and relating to restrictive covenants ancillary to employment contracts, was unconstitutional as being in conflict with the Georgia Constitution of 1983, Art. Ill, Sec. VI, Par. V (c). The court held that OCGA § 13-8-2.1, which provided that contracts that restrain competition “in a reasonable manner” and are not unconscionable are not against public policy and all courts shall enforce them, was “an effort by the General Assembly [to] breathe life into contracts otherwise plainly void as being impermissible” under the Constitution. 261 Ga. at 372.


author: Blackburn, Judge.

text:
    A94A1610.
    WILLIAMS v. SOUTHERN DRAYAGE, INC. et al.
    (446 SE2d 758)
   Blackburn, Judge.

Appellant, Norman Lee Williams, was injured in a motor vehicle accident when the automobile he was operating was struck by a tractor-trailer owned by Southern Drayage, Inc. (“Southern”), while being operated by Charles Armstrong. At the time of the accident, Van-liner Insurance Company (“Vanliner”), insured Southern, and Williams brought this action for personal injuries against Southern, Armstrong and Vanliner. Williams’ complaint seeks to recover damages for his injuries directly from Vanliner under OCGA § 46-7-12 (e), commonly referred to as Georgia’s direct action statute. The trial court granted summary judgment for Vanliner and this appeal followed.

The record shows that at the time of the accident, Southern was a motor common carrier engaged solely in interstate commerce in this state. Southern was operating under a registration permit and identification stamps required for solely interstate carriers pursuant to OCGA § 46-7-16 (a). Vanliner contends that because Southern was a common carrier engaged solely in interstate commerce and because Southern was not required to, and did not possess, a certificate of public convenience and necessity from the Georgia Public Service Commission, Williams may not maintain a direct action against Van-liner under OCGA § 46-7-12 (e). We disagree and reverse.

Chapter 7 of Title 46 of the Official Code of Georgia applies to motor carriers operating in this state. Article 1 of Chapter 7 applies to motor common carriers, and Article 2 of Chapter 7 applies to motor contract carriers. OCGA § 46-7-12 (e) from Article 1 and OCGA § 46-7-58 (e) from Article 2 are identical and provide: “It shall be permissible under this article for any person having a cause of action arising under this article in tort or contract to join in the same action the motor carrier and its surety, in the event a bond is given. If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action, whether arising in tort or contract.” (Emphasis supplied.) These statutes allow a motorist injured in a collision with a truck operated by a motor carrier engaged in intrastate commerce to join the carrier and its liability insurer, whether the carrier be a common carrier or a contract carrier. See Westport Trucking Co. v. Griffin, 254 Ga. 361, n. 1 (329 SE2d 487) (1985).

In Westport, our Supreme Court addressed the issue of whether a motorist injured in a collision with a truck operated by a motor contract carrier engaged solely in interstate commerce may join the motor carrier’s liability insurer in the motorist’s suit for personal injuries. 254 Ga. 361. The Court held such a motorist could join the liability carrier, specifically finding that OCGA § 46-7-58 (e) applies to interstate as well as intrastate carriers. Id. at 363-364.

As the provisions of the Official Code of Georgia regulating motor contract carriers and motor common carriers are virtually identical, we find the rationale in Westport controls the outcome of the case at bar. Accordingly, we find OCGA § 46-7-12 (e), which is identical to OCGA § 46-7-58 (e), also applies to interstate as well as intrastate carriers, and therefore, Williams may maintain a direct action against Vanliner. See Westport, supra; see also Harper Motor Lines v. Roling, 218 Ga. 812, 816-817 (130 SE2d 817) (1963); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828 (1) (360 SE2d 280) (1987); Kimberly v. Bankers &c. Ins. Co., 490 FSupp. 93 (N.D. Ga. 1980) (under almost identical facts, holds Ga. Code Ann. § 68-612, now OCGA § 46-7-12 (e), allows direct actions against insurers of interstate common carriers).

Vanliner’s reliance on Johnson v. Woodard, 208 Ga. App. 41 (429 SE2d 701) (1993), to support the proposition that OCGA § 46-7-12 (e) does not allow direct actions against insurers of interstate carriers is misplaced. Johnson involved the issue of whether OCGA § 46-7-12 (e) applies to a collision involving a Georgia resident and an intrastate carrier holding a certificate of public convenience and necessity, where the collision occurred in another state, and does not address the issue presented in the instant case. Accordingly, the trial court erred in granting Vanliner’s summary judgment motion.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided June 28, 1994

Reconsideration denied July 14, 1994

C. Lawrence Jewett, Jr., for appellant.

Dennis, Corry, Porter & Gray, William E. Gray II, J. Steven Fisher, Stephanie F. Goff, for appellees.


author: Birdsong, Presiding Judge.

text:
    A94A1639.
    In the Interest of A. M. C., a child.
    (446 SE2d 760)
   Birdsong, Presiding Judge.

This is an appeal by A. M. C. of her judgment of conviction of the status offense of unruliness. OCGA § 15-11-2 (11), (12). The petition of unruly conduct avers that A. M. C., being in the custody and control of the Department of Family & Children Services in Gwinnett County was unruly in that she did leave her place of residence without permission and failed to return and is therefore considered to be a runaway.

A. M. C. and four other girls surreptitiously exited a rest room at a movie theatre and fled from the custody of DFCS staff personnel who were awaiting them outside the facility. The complaint filed in juvenile court reflects that the movie theatre (offense situs) was a strip shopping center in Covington, Georgia. We take judicial notice that Covington, Georgia, is not located in Gwinnett County, but that Lawrenceville, Georgia, is so located. See Collins v. State, 172 Ga. App. 100 (2) (321 SE2d 823). At the time of the offense, A. M. C. was in legal custody of DFCS of Gwinnett County but residing in a DFCS shelter home in Conyers, Georgia, located in Rockdale County. The mother and father of A. M. C. resided in Norcross and Lilburn, Gwinnett County, Georgia, respectively. At the hearing, A. M. C., who was represented by an appointed counsel/guardian ad litem, admitted to being a runaway. The office of the counsel/guardian ad litem is in Lawrenceville.

At the hearing, appellant made a motion to dismiss based on a claim of improper venue and the Juvenile Court of Gwinnett County in effect denied that motion but expressly granted appellant’s request to reserve appeal rights thereto.

Appellant’s sole enumeration is that the Juvenile Court of Gwinnett County erred in assuming jurisdiction over an unruly child case where “the incident complained of occurred in Rockdale County.” Held:

Appellant has abandoned all issues not reasonably included in the enumeration, or for which there is no argument or citation of authority in appellant’s brief, including any constitutional challenge to OCGA § 15-11-15.

Delinquency and unruliness are among those proceedings in juvenile court that are quasi-criminal in nature. Quire v. Dept. of Family &c. Svcs., 242 Ga. 85, 87 (249 SE2d 538). However, Georgia Constitution 1983, Art. VI, Sec. II, Par. VI, pertinently provides that “[a]ll other civil cases, except juvenile court cases as may otherwise be provided by the Juvenile Court Code of Georgia, shall be tried in the county where the defendant resides.” The effect of this constitutional provision appears to be to classify all juvenile cases for purposes of venue in the broad category of civil cases, and to allow all juvenile cases to be tried in the forum provided by the Juvenile Court Code of Georgia. See In the Interest of S. H. & I. W., 163 Ga. App. 419 (294 SE2d 621); see also In the Interest of R. A. S., 249 Ga. 236 (290 SE2d 34). Art. VI, Sec. II, Par. VI is implemented by OCGA § 15-11-15 as to proceedings conducted under Article 1 (Juvenile Proceedings), Title 15, OCGA, Chapter 11. With certain statutory exceptions not here applicable, OCGA § 15-11-15 provides: “A proceeding under this article [juvenile proceeding] may be commenced in the county in which the child resides. If delinquent or unruly conduct is alleged, the proceeding may be commenced in the county in which the acts constituting the alleged delinquent or unruly conduct occurred.” The first sentence in this Code section in effect adopts as a permissible alternative a basic venue rule similar to the primary venue rule for “other civil cases” set forth in Georgia Constitution 1983, supra. The second sentence in the Code section provides an additional or supplemental venue rule in delinquent or unruly conduct cases.

An appellate court should interpret statutory provisions in a manner squaring with common sense and reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). Construing OCGA § 15-11-15 in pari materia with Georgia Constitution 1983, Art. VI, Sec. II, Par. VI, it appears that, under current statutory venue provisions, a juvenile proceeding for delinquency or unruly conduct, commenced under Article 1 of Title 15, OCGA, Chapter 11, may be tried either in the county where the child resides or in the county where the unruly or delinquent conduct occurred. Barring waiver of the venue requirement, there appears to be no statutory or constitutional authorization to try such juvenile cases in any other judicial forum in this state.

In the Interest of S. H. & I. W., 163 Ga. App. 419, supra (termination of parental rights) and In the Interest of C. R., 160 Ga. App. 873 (288 SE2d 589) (deprivation action) are factually distinguishable and not controlling. Compare Quire, supra at 87, n. 6.

The juvenile proceeding against A. M. C. was not brought in the county where the unruly conduct was averred to have been committed. The issue thus remains whether it was brought in the county where the juvenile resides. In determining where a juvenile resides for purposes of venue under OCGA § 15-11-15, we conclude it is generally the legal residence that controls. See In the Interest of S. K. L., 199 Ga. App. 731, 735 (2) (c) (405 SE2d 903). “One’s legal residence for the purpose of being sued in this state is generally the same county as his or her domicile.” Sorrells v. Sorrells, 247 Ga. 9, 11 (274 SE2d 314). When A. M. C. was placed in the legal custody of DFCS in Gwinnett County, a rebuttable legal presumption arose that A. M. C. obtained a Gwinnett County legal residence for purposes of determining venue under OCGA § 15-11-15. See S. K. L., supra at 735 (2) (c); see also OCGA § 19-2-4. There exists insufficient evidence in the record to rebut this presumption. Mere change of physical custodians or of housing location would not per se result in a change of the legal residence of A. M. C. See S. K. L., supra. The trial court did not err in denying the motion to dismiss for improper venue.

Decided June 28, 1994

Reconsideration dismissed July 14, 1994

Edgar J. Perkerson III, for appellant.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Judge.

text:
    A92A2374.
    ADCOCK v. THE STATE.
    (447 SE2d 346)
    Decided July 14, 1994.

      Lanser, Levinson & Paul, Christopher G. Paul, for appellant.

      Darrell E. Wilson, District Attorney, Brett W. Ladd, Assistant District Attorney, for appellee.
   Andrews, Judge.

Our judgment in this case at 208 Ga. App. 346 (430 SE2d 606) (1993) has been reversed by the Supreme Court on certiorari. Adcock v. State, 263 Ga. 759 (438 SE2d 910) (1994). Accordingly, our judgment is vacated ánd the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Presiding Judge. Birdsong, Presiding Judge, Smith, Judge, Blackburn, Judge,

text:
    A94A0789.
    In the Interest of T. A. W., a child.
    (447 SE2d 136)
   Beasley, Presiding Judge.

On October 27,1993, T. A. W. was adjudicated delinquent and in need of treatment and rehabilitation as a result of his attempt to burglarize a church. A motion for new trial or in the alternative, motion for reconsideration asserted that the petition was against the weight of the evidence and that the decision was inconsistent with T. A. W.'s best interests. In denying the motion, the trial court held that it lacked the authority to consider the merits of the motion because of the decisions of this court in In the Interest of J. O., 191 Ga. App. 521 (382 SE2d 214) (1989), and In the Interest of M. A. L., 202 Ga. App. 768 (415 SE2d 649) (1992), cert. denied, 202 Ga. App. 906 (1992), but noted that a state constitutional provision gave juvenile courts such authority.

In the sole enumeration of error, T. A. W. asserts that the trial court erred because Art. VI, Sec. I, Par. IV of the Georgia Constitution of 1983 authorizes the juvenile courts to grant new trials.

We do not have jurisdiction to decide the question. Acceptance or rejection of appellant’s view that the provision of the State Constitution is self-executing requires a construction of it, which has not heretofore been undertaken by the Supreme Court of Georgia. The issue is whether this constitutional provision recognizes an inherent power of any court of record, including juvenile courts, to grant a new trial on legal grounds or otherwise vest such a power as a matter of constitutional right. To put it conversely, does this constitutional provision merely recognize the discretionary power of the legislature to expressly provide by statute which courts of record may exercise such a power? The construction of the Constitution, as opposed to its application, is within the exclusive appellate jurisdiction of the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1). “This court has no jurisdiction to resolve such an issue.” Kolker v. State, 193 Ga. App. 306, 307 (1) (387 SE2d 597) (1989), aff’d Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990); see Duncan v. State, 206 Ga. App. 407 (1) (425 SE2d 307) (1992).

In determining that the issue requires construction and not only application, we have considered the following. There is some authority for holding that a statute is unnecessary and that the patent omission of juvenile courts from OCGA § 5-5-1 is overridden by a combination of the last sentence of the Constitution’s Art. VI, Sec. I, Par. IV and OCGA § 15-11-65 (b). That is to say, since the juvenile courts are courts of record, they are given the constitutional power to grant new trials and no legislative act was necessary to extend that power to them.

One analogy is found in Daughtry v. State, 115 Ga. 819, 821 (42 SE 248) (1902). The Court ruled that “under the constitution of this State the superior court has jurisdiction to correct the errors of all [inferior judicatories] by writ of certiorari. Civil Code § 5846. The fact that the act does not refer to this right does not deprive the superior court of its constitutional power to review by certiorari the judgments of the court in question.”

Another instance is the “transfer rule.” Although there is no appellate decision to the effect that the “new trial” provision in self-executing, the transfer provision in Paragraph VIII, which is also a principle of judicial procedure and administration, did not require legislation to be effected. Instead, the Supreme Court adopted Uniform Transfer Rules after the Constitution was passed, “to implement” the constitutional mandate. 251 Ga. 893. This action, effective April 1, 1984, was pursuant to its authority in Art. VI, Sec. IX, Par. I. It also provided for transfer in Uniform Superior Court Rule 19, effective July 1, 1985. 253 Ga. 829 (1985).

In Long v. Bruner, 171 Ga. App. 124, 125 (2) (318 SE2d 818) (1984), this court did not regard the constitutional transfer provision as self-executing but instead applied the Uniform Transfer Rules retroactively. When the trial court dismissed rather than transferred the case due to improper venue, the 1983 Constitution was in effect but the Uniform Transfer Rules were not. By the time of this court’s review, the rules were in effect, so the judgment was reversed with direction to follow them.

Yet in White Repair &c. Co. v. Oviedo, 188 Ga. App. 672, 674 (3) (373 SE2d 784) (1988), we regarded the transfer provision as self-executing, citing it and a pre-rule case (Edwards v. Edmondson, 173 Ga. App. 353, 355 (326 SE2d 550) (1985) (physical precedent)), as sole authority without mentioning the Uniform Transfer Rules which were already in effect. Also in Weitzel v. Griffin & Assoc., 192 Ga. App. 89 (383 SE2d 653) (1989), the Constitution was regarded as the authority requiring transfer rather than dismissal; no mention is made of the rules.

The Supreme Court, in Bosma v. Gunter, 258 Ga. 664 (373 SE2d 368) (1988), transferred an appeal to the superior court on the strength of the constitutional provision alone. It had no transfer rules, so in this instance the provision was regarded as self-executing. We did the same in MacLellan v. Munford, 189 Ga. App. 789 (377 SE2d 702) (1989), transferring an appeal from this court to the superior court and citing Bosma.

In other cases since the rules were adopted, both they and the Constitution are cited as authority for transfer. See, e.g., Tampa Motel Mgmt. Co. v. Stratton of Fla., 186 Ga. App. 135, 137 (2) (366 SE2d 804) (1988) (physical precedent), applying the Constitution and USCR 19.1; Douglas v. Gilbert, 195 Ga. App. 796, 799 (395 SE2d 9) (1990), applying the Constitution and the Uniform Transfer Rules; Womack Indus. v. Tifton-Tift County Airport Auth., 199 Ga. App. 237 (1) (404 SE2d 618) (1991), considering the interplay between the constitutional provision, USCR 19, and the Civil Practice Act requirements for filing an answer; and Lewis v. Jarvis, 207 Ga. App. 246 (427 SE2d 596) (1993), citing as authority for transfer rather than dismissal the Constitution, the CPA § 9-11-12, the Uniform Transfer Rules, USCR 19.1, and UStCR (A).

Whether the Supreme Court would construe the “new trial” provision as self-executing, so as to empower juvenile courts to entertain motions for new trial is for it, not this court, to say. That is a matter of constitutional construction. Unlike the subject of transfer, there is long-standing legislation authorizing the grant of new trials, but it does not embrace juvenile courts. OCGA § 5-5-1. There is another statutory method to challenge a juvenile court order. OCGA § 15-11-42. See In the Interest of J. O., supra; In the Interest of M. A. L., supra; In the Interest of C. M., 205 Ga. App. 543 (423 SE2d 280) (1992).

If OCGA § 5-5-1 is to be regarded as legislation which implements the constitutional provision, just as court rules have implemented the transfer provision, then it would control and the decisions starting with In the Interest of J. O., supra, would be correct. If it is unnecessary legislation because the constitutional provision is self-executing, then the 1986 amendment to OCGA § 5-5-1 was also unnecessary and may be more restrictive than the Constitution allows with respect to probate courts. Probate courts, too, are courts of record. OCGA §§ 15-9-39; 15-9-40; 15-9-41. Greene v. Woodard, 198 Ga. App. 427, 428 (401 SE2d 617) (1991).

The juvenile court is one of limited jurisdiction, and the Constitution provides that its jurisdiction shall be “as provided by law.” Art. VI, Sec. Ill, Par. I. From this also it would appear that statute, not Constitution, governs whether it may grant new trials. See West v. Hatcher, 219 Ga. 540, 542 (134 SE2d 603) (1964).

The current constitutional provision regarding new trials differs from the previous Constitution, which had provided only that “The Superior, State, and City Courts may grant new trials on legal grounds.” 1976 Ga. Const., Art. VI, Sec. IV, Par. VI. The 1983 Constitution states that “Each superior court, state court, and other courts of record may grant new trials on legal grounds.” 1983 Ga. Const., Art. VI, Sec. I, Par. IV. The change was made by the Legislative Overview Committee, as the Select Committee on Constitutional Revision had omitted the sentence-contained in the prior Constitution altogether. State of Georgia Select Committee on Constitutional Revision 1977-1981, Transcript of Meetings, Art. VI, Vol. III, Proposed Draft October 27, 1980. It is evident that it had been omitted intentionally as a matter of judicial procedure, which was already in existence and needed only amendment, more appropriately dealt with by law. It did not state a constitutional principle, that is, a precept of the State’s basic aspirations and tenets. Leaving the subject to legislation alone would be in keeping with the philosophy to streamline the Constitution and omit matters which could be dealt with by the General Assembly, which could change it from time to time as need arose, and which were not of such significance that they deserved the vote of the entire voting public. State of Georgia Select Committee on Constitutional Revision 1977-1981, Transcript of Meetings, Legislative Overview Committee, Vol. III, August 7, 1981, p. 27. The Legislative Overview Committee returned it to the draft in a revised form. Id. at August 7, 1981, pp. 24-32 and August 12, 1981, pp. 106-108, 180-186.

That is what was adopted and remains today. What it means, vis-á-vis OCGA § 5-5-1, requires construction which has not yet been resolved by the Supreme Court of Georgia. Thus the case must be transferred to it.

Case transferred to the Supreme Court of Georgia.

Andrews, Johnson, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., Birdsong, P. J., and Smith, J., concur specially. Mc-Murray, P. J., and Blackburn, J., dissent.

Birdsong, Presiding Judge,

concurring specially.

Pretermitting the issue of a juvenile court’s authority to grant a new trial is the question of this court’s jurisdiction to dispose of the matter by attempting to construe the provisions of Ga. Const. of 1983, Art. VI, Sec. I, Par. IV, as a matter of constitutional first impression. Such a determination perforce includes consideration as to the meaning and scope of the cited provision. For example, does this constitutional provision recognize an inherent power of any court of record, including juvenile courts, to grant a new trial on legal grounds or otherwise vest such a power as a matter of constitutional right, or, conversely, does this constitutional provision merely recognize the discretionary power of the legislature to provide expressly by statute which courts of record may exercise such a power? “This court has no jurisdiction to resolve such an issue.” Kolker v. State, 193 Ga. App. 306, 307 (1) (387 SE2d 597), aff’d Kolker v. State, 260 Ga. 240 (391 SE2d 391); see Duncan v. State, 206 Ga. App. 407 (1) (425 SE2d 307). I concur with the majority that this case must be transferred to the Supreme Court. Id.; Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).

Smith, Judge,

concurring specially.

I agree that this case must be transferred, but do so by taking what I consider to be a more conservative approach to the question at hand. Specifically, I choose to give appellant the benefit of every legal doubt.

I assume, without deciding, that the juvenile court has inherent authority as a court of record to grant new trials, and that no statutory provision is necessary to give effect to this constitutionally derived authority. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. OCGA § 15-11-65 (b). Since appellant has sought review in this court rather than the Supreme Court, I likewise assume that the constitutional provision in question is plainly worded and not subject to construction. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). With these assumptions made, it becomes clear that our holdings in the cases cited by the dissent must be overruled or, in the alternative, that the statutes referenced in those cases must be declared unconstitutional to the extent they conflict with Art. VI, Sec. I, Par. IV. However, in my view only the Supreme Court may properly decide between these alternatives.

The dissent’s position appears to be that giving effect to the former alternative is somehow within our jurisdiction based on the common sense notion that this court should have plenary power to correct its own errors in prior opinions, regardless of their nature. However, giving appellant the benefit of every doubt serves only to demonstrate that the constitutionality of OCGA §§ 5-5-1 and 15-11-42, as those statutes have been interpreted by this court, has “been drawn into question.” Such cases are clearly within the exclusive jurisdiction of the Supreme Court. Art. VI, Sec. VI, Par. II (1). It is for this reason that I conclude this case must be transferred to the Supreme Court. It is for the same reason that I see no need to raise the much thornier question whether this is even a case requiring “constitutional construction.” See Spires v. Kim, 203 Ga. App. 302 (416 SE2d 780) (1992); Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986).

I am authorized to state that Chief Judge Pope joins in this special concurrence.

Blackburn, Judge,

dissenting.

I respectfully dissent.

The juvenile courts of this state have the authority to entertain motions for new trial. I do not agree with the majority that this court lacks appellate jurisdiction to consider the question presented herein because this question involves the application of a clear and unambiguous constitutional provision and statute to a given set of facts, rather than an actual construction of the constitutional provision as the majority maintains. As this court has previously held in Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986), we have the authority to address such an issue.

Under our state’s constitution, “[e]ach superior court, state court, and other courts of record may grant new trials on legal grounds.” Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. “The juvenile court is a court of record. . . .” OCGA § 15-11-65 (b). Hence, our juvenile courts have the authority to entertain and grant motions for new trial based upon errors of law.

Decided July 14, 1994.

Suzan G. Littlefield, Edwards & McLeod, Jennifer McLeod, for appellant.

Barry H. Wood, for appellee.

In recent decisions of this court, beginning with In the Interest of J. O., 191 Ga. App. 521 (382 SE2d 214) (1989), which was subsequently relied upon in both In the Interest of M. A. L., 202 Ga. App. 768 (415 SE2d 649) (1992), cert. denied, 202 Ga. App. 906 (1992), and In the Interest of C. M., 205 Ga. App. 543 (423 SE2d 280) (1992), cert. denied, 205 Ga. App. 900 (1993), we held that juvenile courts are without power to grant motions for new trial based upon the language contained in OCGA § 5-5-1, wherein the legislature expressly granted this power to “superior, state, and city courts.” The issue of the juvenile court’s constitutional authority as a court of record to grant motions for new trial was not raised or addressed in the cases cited.

Upon consideration of Art. VI, Sec. I, Par. IV, of the Constitution of Georgia of 1983, I conclude that the juvenile courts of this state have the authority to consider motions for new trials for the correction of errors of law. To the extent that our prior decisions in In the Interest of J. O., In the Interest of M. A. L., and In the Interest of C. M., could be interpreted in a manner inconsistent with this holding, they should be overruled.

Accordingly, the juvenile court’s denial of T. A. W.’s motion for new trial should be reversed, and the case should be remanded to that court for consideration of the merits of the motion.

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

       It is noteworthy that rules made by the judicial branch govern transfer, an item of administration of the judicial highway, whereas law enacted by the legislative branch governs motions for new trial, also an item of administration.


text:
    A94A1055.
    DIXON v. BARNES.
    (446 SE2d 774)
   Andrews, Judge.

We granted Dixon’s application for an interlocutory appeal from the trial court’s order denying his motion to dismiss Barnes’ medical malpractice complaint for failure to timely file the expert affidavit required by OCGA § 9-11-9.1 and granting Barnes an extension of time to file the affidavit.

Because the statute of limitation expired within ten days of the filing of her complaint on May 24,1993, Barnes relied upon the provisions of OCGA § 9-11-9.1 (b) allowing forty-five days after the filing of the complaint to supplement the pleadings with the required expert affidavit. After no expert affidavit was filed within the 45-day extension period which expired on July 8, 1993, Dixon moved for dismissal on July 28, 1993. On August 26, 1993, seven weeks after the forty-five-day period had expired, Barnes proffered an expert affidavit and moved for an extension to file the affidavit for “good cause.” Concluding that Barnes had shown “good cause” because her treating physician refused “at the last minute before filing the complaint . . . to execute an affidavit,” the trial court denied the motion to dismiss and granted an extension of time for filing the affidavit pursuant to OCGA § 9-11-9.1 (b). Despite the fact that the motion for extension had not been filed within the original 45-day extension period, the trial court ruled that Barnes justifiably relied on language in Emory Clinic v. Wyatt, 200 Ga. App. 184 (407 SE2d 135) (1991), and Brake v. Mintz, 193 Ga. App. 662 (388 SE2d 715) (1989), indicating that a motion for an extension could be considered and granted for good cause even if filed after the expiration of the initial 45-day extension.

1. Appellant claims the motion seeking additional time to file the affidavit was untimely filed after the initial 45-day extension and that the trial court erred by considering the motion.

After providing for an automatic 45-day extension for filing the required expert affidavit, OCGA § 9-11-9.1 (b) further provides that “[t]he trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” In both the Brake and Emory Clinic cases cited by the trial court, the plaintiffs invoked the 45-day extension of time in which to file an expert affidavit pursuant to OCGA § 9-11-9.1 and subsequently moved, before the end of the 45-day period, for the trial court to further extend the time for “good cause.” In Brake, supra at 664, the plaintiff argued that the extension provisions of OCGA § 9-11-9.1 (b) should be construed together with OCGA § 9-11-6 (b). Under § 9-11-6 (b) the trial court may: (1) extend the original period of time “for cause shown” if a request is mailed before the expiration of the original period, or (2) if a motion for additional time is filed after the expiration of the original time period, enter an order “permitting] the act to be done where the failure to act was the result of excusable neglect.” In holding that OCGA § 9-11-6 (b) was not applicable, we stated that “OCGA § 9-11-9.1 is a subsequently enacted statute which by its terms does not distinguish between motions made within or made without the 45-day extension period. It merely provides that ‘on motion, after hearing and for good cause’ the filing period may be extended for whatever length of time the trial court determines justice requires. We read ‘for good cause’ in § 9.1 (b) to establish a higher standard than that in § 6 (b) of ‘for cause shown.’. . . We do not find that these two provisions conflict (although, if conflict exists, § 9.1 (b) as the latter, and therefore true, expression of the legislature would prevail [R]ather [we] read OCGA § 9-11-9.1 (b) as carving out one limited exception to the application of OCGA § 9-11-6 (b).” (Citations and punctuation omitted.) Id. at 664-665. In Emory Clinic, supra at 184-185, although the plaintiff moved for an extension within the original 45-day period, defendants argued that the plaintiff failed to secure a ruling on the extension within the 45-day period. We stated that “[n]othing in OCGA § 9-11-9.1 (b) specifically provides that either the motion for an extension of time or the order thereon must necessarily be filed before the initial 45-day period has expired.” Id. at 185.

The statements in Brake, supra and Emory Clinic, supra, indicating that a motion to extend the initial 45-day period may be considered under the “good cause” standard when filed after the 45-day period has expired are dicta and will not be followed. By providing in § 9-11-9.1 (b) that “[t]he trial court may, on motion, after hearing and for good cause extend such time . . . ,” we believe the Legislature intended that any motion to extend the initial 45-day period must be filed before the expiration of such period.

The extension of time provisions enacted by the Legislature in OCGA § 9-11-6 (b) are instructive in this regard. Under § 9-11-6 (b) (1), upon request for enlargement of the time to do an act made before expiration of the initial time period, the trial court, “for cause shown,” is authorized to “order the period extended.” (Emphasis supplied.) Under section (b) (2) of the statute, if a request for enlargement of time to do an act is made after the expiration of the initial period, the trial court, for “excusable neglect,” may “permit the act to be done” (Emphasis supplied.) The distinction is important for two reasons. First, this language shows that a request for an extension of a period of time under the statute refers to an enlargement of the initial time period prior to its expiration, whereas a request for enlargement of the permitted time to do an act after the initial period has expired refers, not to an extension of the applicable period, but to permission to do an act outside the applicable period. Secondly, the Legislature distinguished extension requests from requests for additional time after expiration of the specified period by applying a higher “excusable neglect” standard to the latter. Accordingly, we conclude the language of OCGA § 9-11-9.1 (b) authorizing the trial court to apply a single “for good cause” standard to “extend” the applicable 45-day period refers to requests for extensions prior to the expiration of the applicable period.

We find this view of the extension provisions of OCGA § 9-11-9.1 (b) consistent with the intent of the statute requiring the prompt filing of an expert affidavit along with the complaint and the elimination of frivolous malpractice claims. 0-1 Drs. Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708) (1989). Moreover, since under OCGA § 9-11-9.1 (c), the defendant need not answer the complaint until 30 days after the filing of the expert affidavit, “[w]here the plaintiff fails to file the affidavit within the 45-day period or fails to obtain a ruling on a motion to extend that period, the defendant is left in a state of uncertainty regarding when to file an answer or even whether filing an answer will be necessary. We do not agree . . . that it is proper or fair to leave a defendant dangling for an indeterminable period after a plaintiff files a complaint alleging professional malpractice before the defendant can adequately answer the negligent act or omission claimed to exist.” Brake, supra at 666.

Nevertheless, we agree with the trial court’s conclusion that in this case, given the statements made in Brake and Emory Clinic regarding motions filed after expiration of the 45-day period, it would be unfair to dismiss the plaintiff’s complaint on the basis that the request for additional time to file the affidavit was made after the 45-day period expired, without considering whether there was good cause for the requested extension of time to file the affidavit. See Harrell v. Lusk, 263 Ga. 895 (439 SE2d 896) (1994); Lutz v. Foran, 262 Ga. 819, 824 (427 SE2d 248) (1993).

2. Appellant argues that the trial court abused its discretion in finding that the plaintiff showed “good cause” for the additional time granted to submit the expert affidavit. The trial court concluded in its order that “[p]laintiff has shown good cause, but only as it relates to the difficulties regarding refusal of [plaintiff’s treating physician to sign an affidavit. . . . [T]he Court accepts that [p]laintiff’s counsel was led by the [plaintiff’s treating physician to believe that there were facts sufficient to raise a colorable claim and that at the last minute before filing the complaint the physician refused to execute an affidavit.” Based on these findings, the trial court found good cause and allowed the plaintiff additional time to file the expert affidavit, which was filed along with the motion for additional time on August 26, 1993, an additional seven weeks after the initial forty-five-day period had expired.

In addition to the facts recited by the trial court, which related to efforts to obtain the affidavit before the complaint was filed, the only other evidence offered which could have supported the trial court’s détermination of “good cause” was a general statement by plaintiffs counsel that he “in good faith attempted to contact several other physicians to obtain the requisite affidavit in this matter to no avail.” The plaintiff gave no explanation to justify the failure to obtain the required affidavit during the forty-five-day extension period or during the seven-week delay in filing the affidavit following the expiration of the initial forty-five-day period. We find that the plaintiff in this case failed to produce any evidence showing a reasonable effort was made to obtain the expert affidavit after the complaint was filed. See Brake, supra at 665-666. Although a trial court has broad discretion in determining whether or not “good cause” exists to grant a requested extension, there must be some evidence to support the court’s exercise of discretion. Archie v. Scott, 190 Ga. App. 145, 147 (378 SE2d 182) (1989). In this case, the trial court abused its discretion in finding there was “good cause” to grant the requested extension.

Shaw, Maddox, Graham, Monk & Boling, David F. Gulden-schuh, for appellant.

Davidson & Strain, William E. Davidson, Jr., for appellee.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur.

       After oral argument, appellant informed this court that the parties had reached an agreement to settle the case. It appears that appellee contends otherwise. Since we cannot conclude that the issues raised in the appeal have become moot, appellant’s motion to enforce the settlement or for a remand to the trial court is denied. See Dept. of Human Resources v. Chambers, 211 Ga. App. 763, 765 (441 SE2d 77) (1994); compare Burkett v. Dunlap, 9 Ga. App. 671 (72 SE 65) (1911); American Cyanamid Co. v. Carter, 164 Ga. App. 538, 539-540 (298 SE2d 276) (1982).