text:
    A91A0538.
    GARCIA v. THE STATE.
    (409 SE2d 683)
   Beasley, Judge.

On appeal from his conviction of trafficking in cocaine, OCGA § 16-13-31, appellant contends that the trial court erred in denying his motion to suppress the contraband on which the prosecution was based.

As appellant was driving north on 1-75, a state trooper observed him speeding and changing lanes without signaling. The trooper followed him as he was exiting into a rest area, signaled for him to pull over, and asked to see his driver’s license and vehicle registration. Appellant produced an Illinois driver’s license and registration document, and the trooper then radioed his dispatcher to request a records check. While waiting for the results, he prepared traffic citations charging appellant with speeding and improper lane change and questioned him and a female companion about the nature and purpose of their travel. According to the trooper, appellant responded that he was unemployed and that he and his companion were returning to Chicago from a vacation in central Florida. The trooper testified that appellant denied having been south of Orlando and Tampa during their trip, but his companion indicated that they had been to Miami. The trooper stated that this discrepancy, combined with appellant’s “nervousness,” his “being unemployed but yet being able to take a vacation to ride around for a week in Florida,” and the fact that Miami and Chicago were “major [drug] distribution area[s],” caused the suspicion “that some crime was being committed.”

At this time, the radio dispatcher informed the trooper that there was a warrant outstanding on appellant for trafficking in cocaine. The trooper immediately handcuffed appellant and placed him in the back of the patrol car. Appellant protested that he had committed no crime and that a mistake had been made. The trooper then asked the dispatcher for particulars “to verify” that appellant was in fact the person named in the warrant. Based on the description related to him by the dispatcher, the officer determined that appellant was not in fact the person named in the warrant. He released appellant from the patrol car, unhandcuffed him, “apologized for his inconvenience,” returned his documents, and gave him the citations for speeding and improper lane change which he had earlier prepared.

The trooper testified that he considered appellant free to leave at this time although he did not tell him this. Rather, he asked him for permission to search his vehicle. Appellant responded by asking the trooper why he wanted to search the car, and the trooper replied “that we have had [a] problem, with weapons, large amounts of money and drugs being transported on the interstate.” Appellant assured the trooper that he did not have any drugs in the car and asked if he still wanted to search it. The trooper responded affirmatively, whereupon appellant asked what would happen if he refused. The trooper replied by asking: “Well, if you don’t want me to search your vehicle, would you mind going up the road and letting a drug dog check your car?”

Appellant thereupon consented both orally and in writing to a search of his vehicle. The ensuing search disclosed cocaine on the rear floorboard of the vehicle, hidden inside some dirty laundry. A pistol, which was later determined to have been stolen, was seized from the companion’s purse. Appellant testified that he had consented to the search only because he believed the trooper “was going to put the dogs on me” if he did not.

Appellant contends that his consent to the vehicle search must be considered the unlawful fruit of his “illegal” arrest on the outstanding warrant. It appears from the transcript that the information upon which the trooper based the arrest was the product of a records check predicated not merely on appellant’s name but also on his date of birth and social security number. “ ‘(W)hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.’ ” Hill v. California, 401 U. S. 797, 802 (91 SC 1106, 28 LE2d 484) (1971).

Appellant contends alternatively that his consent to search was not voluntary, but the record supports the trial court’s finding otherwise.

“[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances. . . .” Schneckloth v. Bustamonte, 412 U. S. 218, 248-249 (93 SC 2041, 36 LE2d 854) (1973). Accord Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975). “[T]he state [’s] . . . burden of proving that the necessary consent . . . was freely and voluntarily given ... is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U. S. 491, 497 (103 SC 1319, 75 LE2d 229) (1983).

On appeal, “the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Lego v. Twomey, 404 U. S. 477 (1972); . . .” Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975).

The court explained at some length the basis of its finding, noting that it was regrettable that the police car had no video camera to videotape the conversation in this instance. The court heard testimony from the trooper and defendant and rejected defendant’s version as “incredible, some of the most incredible testimony that I’ve ever heard given.”

The court considered significant that although defendant was born in Cuba, he had been in this country for over nine years, had two years of college studying medicine, was of such a mien that he later refused, in the environment of custody in a police station, to sign the form acknowledging that he had been advised of his rights under Miranda although earlier, standing on the side of the highway, he signed the consent to search form. This exhibited a degree of willpower to the court which was a factor in its finding of voluntary consent.

The consent form lists seven affirmations which the signer makes, some relating to facts about himself and some relating to rights of which “I . . . have been informed” prior to signing. Of particular import are the first three: “1. I have not been promised anything in exchange for consenting to this search. 2. I have not been threatened in any way to force or compel me to give this voluntary consent to search my vehicle. 3. I have the right to refuse the search of my vehicle.”

The officer expressly “asked for permission to search the vehicle” after appellant was released from handcuffs and given his driver’s license, car registration, and receipts for the traffic citations and court dates for appearance regarding the same. The short discussion between the officer and appellant about a search, which includes the officer’s straightforward answers to appellant’s questions, culminated in the officer’s asking whether, if appellant objected to a search, he would mind a check of the car by a drug dog.

The trial judge, who viewed and heard the witnesses, was authorized to find that the consent was obtained in a nonthreatening way from a person who was informed, equipped to refuse it, free to refuse it, and chose to grant it. “ ‘Voluntariness must be determined from all of the circumstances.’ ” Smith v. State, 184 Ga. App. 304, 306 (1) (361 SE2d 215) (1987). The evidence supported the finding that the consent was voluntary “ ‘and not the result of duress or coercion, express or implied.’ ” Id.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, Pope and Andrews, JJ., concur. Banke, P. J., and Cooper, J., dissent.

Banke, Presiding Judge,

dissenting.

There is no question that the appellant signed a consent form; however, there is nothing in the trooper’s testimony which would suggest that he did so “freely and voluntarily.” At the time he was asked to consent to the search, the appellant had been released from handcuffed confinement inside the trooper’s patrol car, but he had not been informed that he was free to leave. Compare Donner v. State, 191 Ga. App. 58 (380 SE2d 732) (1989). His responses to the trooper’s request, as recounted by the trooper himself, clearly manifested a reluctance on his part to give his consent. Under these circumstances, by asking the appellant if he would “mind going up the road and letting a drug dog check your car” in answer to his inquiry regarding what would happen if he refused to consent to the search, the trooper obviously was insinuating that this was his only other option, which is precisely how the appellant says he interpreted it. For these reasons, I would hold that the state failed to meet its burden under Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983), of showing that the appellant’s consent “was in fact freely and voluntarily given,” rather than the product of “mere submission to a claim of lawful authority.” 460 U. S. at 497.

Decided July 16, 1991

Reconsideration denied July 30, 1991

Collins & Eddings, Michael R. Eddings, Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

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


source: Caselaw Access Project

author: Sognier, Chief Judge. Andrews, Judge,

license: Public Domain

text:
    A91A0559.
    HAIRE v. CITY OF MACON.
    (409 SE2d 670)
   Sognier, Chief Judge.

Clayton Monroe Haire brought suit against the City of Macon and Georgia 4-H Clubs Foundation, Inc. (“4-H Club”) seeking damages for injuries he incurred when he slipped and fell at a 4-H Club hog show held at a facility owned by the City. Haire dismissed 4-H Club without prejudice. The trial court granted the City’s motion for summary judgment, and Haire appeals.

We reverse. The evidence established that the show appellant was attending was held in a building constructed prior to 1900 which was being used as a show barn. It was appellant’s first visit to the barn, and he had never before traversed the ramp on which he fell. It is uncontroverted that the ramp had been built more than 30 years before appellant’s fall and had not been altered since 1959. The ramp, which filled the doorway connecting two buildings, was 12 feet wide, 15 inches at its highest point, and 67 inches long. The ramp was constructed of smooth surfaced concrete at a steep slope and had no handrail. There were no signs warning pedestrians about the ramp. Although the ramp was under a roof, at the time of appellant’s fall it had mud, water, and straw on it.

Appellant testified that the hog show was crowded with people and that he was walking six to twelve inches behind his mother. He stated that he was looking straight ahead when he saw his mother slip and then slipped himself on his first step on the ramp, although he did not know he was on a ramp until he was falling. Appellant testified that although the amount of mud and water was “usual” for a hog show, the mud and water on the ramp made it very slippery. He also testified that he knew he was in a barn and had to be careful. Appellant acknowledged that there was nothing in the area that distracted his attention.

It is uncontroverted that prior to appellant’s accident, the City had received no notification that anyone had fallen or been injured in any way while using the ramp.

Appellant produced the affidavit of his expert witness, John Hutchinson, who averred that the ramp was a hazardous condition presenting an unreasonable and unacceptable risk of serious injury to persons using the ramp and that it constituted such a hazardous condition even without the presence thereon of mud, water, or other foreign substances. He gave four reasons: (1) the ramp’s slope was too steep because it was a rise of one inch for every four and one half inches, and any slope greater than one inch for every eight inches was not safe for pedestrians; (2) the surface of the ramp was too smooth and slick for safe use by pedestrians; (3) the ramp had no handrails and being in excess of 88 inches wide should have had handrails on both sides and intermediate handrails; and (4) there were no markings or other signs to warn pedestrians that they were approaching a ramp. In his deposition, Hutchinson explained that he applied Southern Building Code standards promulgated in 1986 to the ramp and did not know what standards were in effect at the time the ramp was constructed. However, he testified that in his professional opinion, the ramp “was so out of the norm of ramps that you see in the ’70s and the ’80s and, now, in the ’90s, . . . that I guess I was just — my gosh, I was just overwhelmed.” In his opinion the ramp was so bad that he could easily see it as a cause of an accident and was “very surprised” when told there had been no other accidents.

Appellant contends the trial court erred by granting appellee’s motion for summary judgment because genuine issues of material fact remain whether appellee was negligent in maintaining a ramp that was too steep, too smooth, and lacked handrails and warnings. Appellant bases his claim on common law negligence, having conceded in his brief that he has no negligence per se claim arising from the ramp’s noncompliance with any building codes because the building was a legal noncomplying use and not in violation of any applicable statutory provision. See Garnett v. Mathison, 179 Ga. App. 242 (1) (345 SE2d 919) (1986).

“For appellant to recover under a common law negligence theory, there must have been a defective condition on appell[ee]’s premises, which defect was the cause of appellant’s fall and of which appellee had superior knowledge. [Cit.] The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Punctuation and citations omitted.) Id. at 242-243 (2). “ ‘(A)n owner or occupier of land is liable to invitees for injuries they sustain as a result of his failure to warn them of dangers which he was aware of, or in the exercise of reasonable care should have known. (Cits.) However, a person is not expected to foresee and warn against dangers which are not reasonably expected, and which would not occur except under exceptional circumstances or from unexpected acts of the person injured. (Cit.)’. . . [Cit.]” Zellers v. Theater of the Stars, 171 Ga. App. 406, 407 (319 SE2d 553) (1984).

In Zellers, although the defendant had controlled an auditorium for six weeks a year for over 13 years, no one had ever been injured therein by plate glass breaking in the auditorium doors. Because of the lack of injuries, we held that the defendant had no actual knowledge that the doors of the auditorium, by containing plate glass rather than safety glass, were dangerous, id. at 407-408 (1), and that in the absence of injuries caused by the plate glass, there was no evidence to show or indicate that defendant had a duty to inspect the premises to discover and warn of the existence of the dangers of plate glass doors. Id. at 408 (2). However, “ ‘[o]n motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt.’ [Cit.] The movant has the burden to prove the non-existence of any genuine issue of material fact (OCGA § 9-11-56), and in so determining, the court will treat the respondent’s paper with considerable indulgence. [Cit.]” Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). Hutchinson testified that in his professional opinion the ramp was a hazardous condition, deviating so far from the established norm that it was “overwhelming” and that “absolutely” it could easily be seen as the cause of an accident. There is thus some evidence in the record from which it could reasonably be inferred that despite the absence of prior accidents, the ramp in issue was so obviously a defective condition that its danger was visible and should have been discovered by the exercise of ordinary care even without the type of inspection that could distinguish plate glass from safety glass, as in Zellers, supra, or a slight deviation in the height of risers, as in Chisholm v. Fulton Supply Co., 184 Ga. App. 378, 379 (361 SE2d 540) (1987), and accordingly was a danger appellee reasonably could have foreseen and expected.

“ ‘The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. (Cit.) The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact. (Cits.) In the instant case it is clear that such issues exist.’ [Cit.]” Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (380 SE2d 314) (1989). Given the conflict between Hutchinson’s testimony concerning the obviously hazardous condition of the ramp and the inferences to be drawn from the absence of prior accidents, a question of fact exists here whether the ramp was a defective condition which appellee, in the exercise of ordinary care in keeping its premises safe in the more than 30 years it has owned the premises, knew or should have known would cause injury to an invitee. OCGA § 51-3-1.

We have reviewed the evidence in the record regarding whether appellant’s fall was due to a defect in the ramp itself or to the mud and water on the ramp and do not agree with appellee that the evidence so clearly established that appellant slipped only because of the mud and water that it was entitled to summary judgment as a matter of law. Likewise, in view of appellant’s total lack of familiarity with the barn and his testimony regarding the severely crowded conditions in the building, we cannot agree with appellee that as a matter of law, the ramp was a patent defect or that appellant failed to exercise ordinary care on his own behalf. “Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them except in plain and indisputable cases. It was not incumbent upon appellant to exercise that degree of care which would have absolutely prevented his injuries.” (Citations and punctuation omitted.) Wall v. Southern R. Co., 196 Ga. App. 483, 485 (2) (396 SE2d 266) (1990).

Judgment reversed.

McMurray, P. J., Banke, P. J., Carley, Pope and Cooper, JJ., concur. Birdsong, P. J., Beasley and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

The majority correctly states that the true ground of the owner’s liability to an invitee in slip and fall cases is the owner’s superior knowledge of a condition or hazard that was the proximate cause of the invitee’s injury. Thus, “if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations and punctuation omitted.) Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990).

In the present case the alleged hazard was an inclined ramp which had existed unaltered on the premises for over 30 years. During that time there is no evidence that the City as owner had any notice of any fall or injury on the ramp prior to the present incident. In order to establish that the City had the necessary knowledge of a condition or hazard that caused his injury, appellant produced an expert witness who testified that the ramp, because of its steep slope, smooth surface, lack of handrails, and slippery condition at the time of the accident, constituted a patently obvious hazard of which the City was or should have been aware. Given that the appellant’s own expert produced evidence that the ramp was an obvious defect or hazard, the appellant was in the position of having to explain why, by the exercise of ordinary care, he did not see it, and have as much knowledge of the patent hazard as the City.

Although appellant testified in his deposition that he slipped and fell because mud and water on the ramp made it slippery, he also stated that he did not see the ramp or any mud and water before he fell taking his first step onto the ramp. He explained that he was walking about six to twelve inches behind his mother in crowded conditions looking straight ahead, and that the people around him prevented him from seeing. He knew muddy conditions existed at the hog show requiring that he be careful in walking. As the majority notes, he also testified there were no “distractions” which diverted his attention.

The majority concludes that because appellant was not familiar with the area, and was in crowded conditions, they cannot as a matter of law agree that the ramp was a patent defect, or that appellant failed to exercise ordinary care. There is no evidence tending to show that the ramp was anything other than a long-standing patently obvious and observable condition on the premises. In other words, it was a structural condition whose presence was both obvious, static and discernible to those exercising ordinary care. Harmon v. Reames, 188 Ga. App. 812, 815 (374 SE2d 539) (1988). This is not a latent defect case where the invitee claims that, despite his knowledge of the observable conditions, he could not fully appreciate the inherent danger. Compare Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986). Rather, appellant claims he was prevented from seeing the patent hazard because he was walking in a crowd.

Decided July 11, 1991

Reconsideration denied July 30, 1991

Adams & Hemingway, William P. Adams, Rentz & Shepard, Danny S. Shepard, for appellant.

Chambless, Higdon & Carson, Thomas F. Richardson, Robert E. Little, for appellee.

I cannot agree with the majority that a question of fact remains as to whether appellant exercised ordinary care under these circumstances. Although an invitee is not required to inspect the premises to discover latent defects, nor even to observe every patent defect, neither is the owner an insurer of the invitee’s safety, and “[t]he invitee must also exercise ordinary care for his own safety and must by the same degree of care avoid the effect of the owner or occupier’s negligence when it becomes apparent to him, or in the exercise of ordinary care [he] should have learned of it.” Amear v. Hall, 164 Ga. App. 163, 167 (296 SE2d 611) (1982); Fowler v. Campbell, 191 Ga. App. 872 (383 SE2d 163) (1989). Appellant cannot recover on the basis of the City’s superior knowledge of the condition or hazard, if his lack of equal or superior knowledge was caused by his failure to exercise ordinary care to discover the condition or hazard. The exercise of ordinary care does not require an invitee to continuously scan the floor for possible defects, but depends on all the circumstances at the time and place. Pinkney v. VMS Realty, 189 Ga. App. 177, 178 (375 SE2d 90) (1988). Only when the facts are so plain and palpable that they demand a finding as a matter of law that one has failed to exercise ordinary care for one’s own safety will summary judgment be appropriate. Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (352 SE2d 212) (1986).

Here, appellant was in an unfamiliar area on a floor he knew to be muddy and slippery. Moving in a crowd of people, which, by his own admission, prevented him from seeing the floor in front of him, he nevertheless proceeded, and was looking straight forward when he stepped onto the ramp covered with mud and water, and fell. Proceeding blindly under these circumstances is, as a matter of law, failure to exercise ordinary care for one’s own safety. Accordingly, I would affirm the trial court’s grant of summary judgment to the City.

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

       Appellant does not suggest or rely upon the theory that a lesser degree of caution under the circumstances was sufficient to constitute ordinary care because he was distracted by somethign attributable to the proprietor. Compare, e.g., Magee v. Federated Dept. Stores, 187 Ga. App. 620 (371 SE2d 99) (1988).


author: Cooper, Judge.

text:
    A91A0581.
    WALKER et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.
    (409 SE2d 529)
   Cooper, Judge.

Appellants, Sharon Walker and David Walker, filed a medical malpractice action against the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital seeking to recover damages for the death of their newborn child. Appellee moved for summary judgment claiming that the action was barred by the doctrines of charitable immunity and sovereign immunity. Appellants how appeal the ruling of the trial court granting summary judgment to appellee based upon appellee’s charitable immunity defense.

1. In Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (1), 347 (404 SE2d 796) (1991), we held that “hospital authorities established pursuant to the Hospital Authorities Law are entitled to the defense of governmental immunity except to the extent there has been a waiver under the constitutional provision.” Because appellee is a hospital authority established pursuant to the Hospital Authorities Law and because the record does not reveal there has been a waiver of governmental immunity, we must conclude that appellants’ action is barred by the doctrine of sovereign immunity. Notwithstanding this determination, we will also address herein appellants’ argument that appellee was not entitled to the defense of charitable immunity and therefore the grant of summary judgment to appellee was in error.

2. The record in this case indicates that appellee designated the appellant patient, Sharon Walker (hereinafter, “appellant”), as a “full pay patient” at the time she was admitted, this designation being shown by an “X” status in her admission record. At the time of her admission, appellant was employed and had health insurance coverage under a self-insurance plan provided by her employer. However, appellant had applied for this coverage while she was pregnant and the president of her employer stated that he assumed pre-existing conditions were not covered under the plan. Further, appellant did not request dependent care coverage on her application for insurance. The record also indicates that tentative patient classifications may be made by appellee in emergencies and any initial classification may be subsequently changed due to special circumstances. Subsequent to appellant’s stay at the hospital, her insurance plan became insolvent and was unable to pay its debts, although some money was paid by the insurer to appellee on appellant’s account. As stated by the trial court, “[w]hile there is some dispute as to the amount of payment which has occurred, there is no dispute that the total payments have been less than $2000 on a bill in excess of $30,000.” Appellants personally have made no payment on the bill and we agree with the trial court that there is no evidence in the record that appellants are finandally able to pay the bill.

“As a charitable institution, Grady [Hospital] is generally entitled to the defense of charitable immunity. [Cits.] ‘There is an exception to this general rule, however: a charitable hospital may be liable for negligence to a paying patient.'’ [Cits.]” Fulton-DeKalb Hosp. Auth. v. Fanning, 196 Ga. App. 556 (1) (396 SE2d 534) (1990). In Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887) (1918), the Supreme Court of Georgia considered several criteria in the determination of whether or not an individual was a paying patient. This court recently applied the Morton criteria in Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 168 (384 SE2d 205) (1989) where we determined that a charitable institution may not assert the immunity against a person who “(1) enters the hospital under an agreement to pay for services, (2) is able to pay for services, and (3) does pay for services.” Further, where a non-paying patient, who in the end becomes the recipient of the hospital’s charity, claims he was able to pay and was not a charity patient, he or his personal representative has the burden of proving it. Fanning, supra at 560. Despite appellant’s “X” classification at the time of her admittance, appellant has not shown that she entered the hospital under an agreement to pay for services. Appellant’s classification was a tentative one, made when appellant was admitted during the onset of premature labor. In such circumstances, a hospital cannot initially verify the insurance coverage and income of the patient. Thus, the status may be subsequently changed in special circumstances. Given the fact that appellant’s insurance was obtained during her pregnancy and that her dependents were not covered in any event, we cannot say that, due to her initial classification by the hospital, she was admitted under an agreement to pay. Secondly, appellant submitted no evidence to show that she or her husband have the ability to pay the hospital bill and thirdly, it is undisputed that most of the large bill remains unpaid. According to the case law, appellant has not proven that she comes within the paying patient exception to the charitable immunity granted to appellee, and consequently we find no genuine issue of material fact on this question.

Appellee is also granted immunity under OCGA § 51-1-29.1, which provides: “(a) Without waiving or affecting and cumulative of any existing immunity from any source, unless it is established that injuries or death were caused by gross negligence or willful or wanton misconduct:

“(1) No health care provider . . . who voluntarily and without the expectation or receipt of compensation provides professional services ... for and at the request of a hospital . . . , which [hospital] does not expect or receive compensation with respect to such services from the recipient of such services; or

Decided June 28, 1991

Reconsideration denied July 30, 1991

Finch, McCranie, Brown & Thrash, Thomas W. Thrash, Jr., for appellants.

Alston & Bird, Geoffrey H. Cederholm III, Robert D. McCallum, Jr., for appellee.

“(2) No licensed hospital . . . which requests . . . services under the circumstances provided in paragraph (1) of this subsection shall be liable for damages or injuries alleged to have been sustained by the person nor for damages for the injury or death of the person when the injuries or death are alleged to have occurred by reason of an act or omission in the rendering of such services.”

Although we have discovered no cases interpreting this statute, the legislature stated that the statute was enacted “to provide immunity from civil liability to certain health care providers or other entities providing professional services without compensation or the expectation thereof. . ...” Ga. L. 1987, p. 887. As stated above, it was not shown that appellee expected to be paid for its services and it is clear that the hospital did not receive any compensation from appellant, the recipient of those services.

Based upon our discussion herein, we conclude that the trial court did not err in granting summary judgment to appellee on the basis of the hospital’s charitable immunity.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0723.
    DEAN v. THE STATE.
    (409 SE2d 667)
   Banke, Presiding Judge.

After having pled guilty to an indictment charging him with possession of cocaine with intent to distribute and having been sentenced to five years’ probation as a first offender pursuant to OCGA § 42-8-60 et seq., the appellant was again arrested for possession of cocaine with intent to distribute some two months later. He waived his right to a trial by jury following his indictment for this second offense; and after denying his motion to suppress the cocaine and cash which had been seized from his person at the time of his arrest, the trial court found him guilty of that offense. In addition, the court found him to be in violation of the first-offender probation he had received for the prior offense. At the subsequent sentencing hearing, the court adjudicated him guilty of the prior offense, sentenced him to five years’ imprisonment on that conviction, and then, considering itself bound to do so by the language of OCGA § 16-13-30 (d), sentenced him to life imprisonment for the second offense. This appeal followed. Held:

1. The trial court did not err in denying the appellant’s motion to suppress. The arresting officers had been instructed by their supervisor to investigate certain premises for illegal gambling and drug activity. After locating the house, a duplex with an unusually large number of cars parked in front of it, the officers walked to the front door, where, through a sheer curtain covering a window in the door, they were able to observe several men seated inside rolling dice, with piles of money situated beside them on the floor. One of the officers then walked over to another window a few feet away, which was also partially covered by a curtain, and by looking through a separation in the curtain was able to obtain an unobstructed view of the same activity. He then knocked on the front door. The man who opened the door recognized the officer and shouted his name, whereupon the appellant, who was among those present inside, ran to a bathroom. The officer pursued and apprehended him and discovered the evidence in question inside his jacket pocket during the ensuing search of his person.

“Where a police officer enters upon private property only to the extent of knocking on outer doors, the Fouith Amendment is not violated. Gilreath v. State, 247 Ga. 814, 819 (279 SE2d 650) (1981). . . . After all, such an officer is merely taking the same route as would any guest or other caller.” State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). Under the circumstances, we hold that the officers were entitled to look through the front door of the house and that, having done so, they acquired probable cause to believe the crime of gambling (OCGA § 16-12-21) was being committed therein. If this was not sufficient in and of itself to authorize the officers to arrest the appellant, his subsequent flight upon seeing them unquestionably established probable cause for his warrantless arrest and the ensuing warrantless search of his person. See State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989); Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975); Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989).

2. The appellant contends that the trial court violated both his federal constitutional right to due process and his federal constitutional right to be free from cruel and unusual punishment by sentencing him under the mandatory provision of OCGA § 16-13-30 (d), which provides as follows: “Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to [specific controlled substances, including, but not limited to cocaine] shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” (Emphasis supplied.) The appellant argues that the trial court construed this language in a way that he could not have anticipated by treating his commission of the second offense both as the basis for the revocation of his first-offender probation, which, in turn, resulted in his conviction of the original offense, and as the “second or subsequent offense” for which the statute mandates life sentence. We find this contention to be without merit. At the time he received first-offender probation for the original offense, the appellant was advised that if he violated the conditions of his probation, an adjudication of guilt would be entered against him based on his guilty plea, and he would be sentenced as provided by law for that offense. As a result of his commission of a subsequent offense, his probation was revoked, and he was convicted and sentenced for the original offense. Thereafter, a conviction and sentence was entered on the second offense. Under these circumstances, the later conviction clearly constituted a “conviction of a second or subsequent offense” within the contemplation of the statute.

Decided July 16, 1991

Reconsideration denied July 30, 1991

Bobby J. Lindsey, for appellant.

We have previously held that the intent of the General Assembly in enacting § 16-13-30 (b) was “to deter repeat offenders of certain drug crimes enumerated in OCGA § 16-13-30 (b) and to segregate persons who have two convictions of such offenses from the rest of society for an extended period of time.” Mays v. State, 200 Ga. App. 457 (408 SE2d 714) (1991). See also Grant v. State, 258 Ga. 299, 300 (368 SE2d 737) (1988). Indeed, in Mays, supra, we construed the statute in such a manner as to permit a defendant to be sentenced to life imprisonment on a prior offense, for which he had received first-offender treatment, following his conviction of a subsequent offense. We cannot accept that, having received first-offender probation for this previous cocaine offense and having committed the same crime again some two months later, the appellant in the present case stood in the same position with respect to the latter offense as if he had fully complied with the terms of his first-offender probation and had been discharged from all criminal liability for the original offense. The appellant’s argument that to impose a life sentence against him under these circumstances is to violate his Eight Amendment right to be free from cruel and unusual punishment is clearly without merit. See Grant v. State, supra; Rummel v. Estelle, 445 U. S. 263 (100 SC 1133, 63 LE2d 382) (1980).

Judgment affirmed.

Carley and Beasley, JJ., concur.

Willis B. Sparks III, District Attorney, Sharon T. Ratley, Thomas J. Matthews, Assistant District Attorneys, for appellee.


author: Beasley, Judge.

text:
    A89A2267.
    BROADFOOT et al. v. AARON RENTS, INC. et al. CITIZENS & SOUTHERN NATIONAL BANK v. BROADFOOT et al. AARON RENTS, INC. et al. v. BROADFOOT et al.
    A89A2268.
    A89A2269.
    (409 SE2d 870)
   Beasley, Judge.

Pierre Merlot, Marie Merlot, and Broadfoot as trustee in bankruptcy for La Privilege, Inc. d/b/a Pierre’s Rue de Paris, sued Aaron Rents, the Citizens & Southern National Bank (C & S) and other named parties not involved here. The complaint alleged that all parties breached their respective duties by negligently failing to discover and to correct an inherent defect in a brick veneer wall on a building which collapsed in 1985 and severely damaged the adjoining premises rented by the Merlots for their restaurant business, causing the immediate close of the restaurant and the Merlots’ eventual bankruptcy. All plaintiffs included attorney fees in the prayer for damages, and the Merlots also claimed punitive damages against only the four parties no longer involved.

At the close of plaintiffs’ case as to liability, all defendants moved for directed verdicts. They were granted on all causes in favor of the other defendants, and to Aaron Rents and C & S on plaintiffs’ claims of punitive damages, attorney fees and the Merlots’ damages individually for mental anxiety and damage to their credit and reputation. The judgments entered in favor of the other four defendants were subsequently amended to specify that the motion of one party (Abco) for directed verdict was denied as to punitive damages and attorney fees, but granted as to all other claims of the Merlots against all of the defendants.

After judgments were entered on these rulings and certified as final, plaintiffs voluntarily dismissed the case against Aaron Rents and C & S and subsequently renewed it against these two defendants. Plaintiffs also appealed the judgments based on the directed verdicts, and both Aaron Rents and C & S filed cross-appeals from the trial court’s refusal to direct verdicts on the issue of liability.

On the first appearance of these appeals in Broadfoot v. Aaron Rents, 195 Ga. App. 297 (393 SE2d 39) (1990), this court held that both the main appeal (A89A2267) and the two cross-appeals (A89A2268, A89A2269) were moot as a result of plaintiffs’ voluntary dismissal and refiling of the lawsuit. Two judges dissented, taking the view that because the directed verdicts became immediately effective, these rulings were not obviated or negated by plaintiffs’ subsequent dismissal of the case and thus neither the appeal nor the cross-appeals were moot.

On grant of certiorari the Supreme Court reversed “as to the main appeal,” agreeing with the dissent that plaintiffs’ only recourse was to appeal the judgments as to punitive damages, attorney fees, and individual damages because those issues could not be relitigated in the renewed action. The case was remanded to this court for review on the merits.

Dismissal of C & S’ and Aaron Rents’ cross-appeals was affirmed “[b]ecause the cross-appeals, unlike the main appeal, were directed toward issues which were not resolved by the trial court and which were in fact renewed by the second filing. . . .” Broadfoot v. Aaron Rents, 260 Ga. 836, 837, fn. 2 (401 SE2d 257) (1991).

1. In their briefs appellants’ arguments that the trial court’s final judgment on the claim for punitive damages and attorney fees was improper were addressed only to the grant of directed verdict to another defendant, Richards. Thus it is unnecessary to consider this issue as only.our rulings made in regard to Aaron Rents and C & S “were not obviated or negated by appellant’s subsequent voluntary dismissal and renewal of the case. . . .” Broadfoot v. Aaron Rents, 195 Ga. App. 297, 300, supra. Besides, there is no enumeration of error complaining of the directed verdict in favor of Aaron Rents and C & S on the issues of punitive damages and attorney fees. Thus there is nothing for us to review in this regard at this stage.

2. The Merlots alleged in enumeration of error 3, that as a result of the appellees’ negligence, they suffered mental and emotional pain and pecuniary losses incurred through damage to personal family antiques, lost profits from their restaurant business, expenses of cleaning up debris and remodeling and redecorating the building, expenses of transporting property to protect it while the restaurant was closed, legal expenses and attorney fees for defending creditor suits and bankruptcy costs, expenses to store and protect property pledged to the corporation in bankruptcy, and medical expenses for physical afflictions, insomnia and rashes caused by the stress of the situation. The Merlots also contend that they suffered mental pain and suffering because their ability to earn a living was totally destroyed. Consequently, they contend that a directed verdict excising these damages was error.

Noting that “[a]s a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence[,]” Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984), Aaron Rents and C & S contend that the trial court did not err in directing verdicts and entering judgments in their favor for such alleged mental and emotional pain and suffering as a matter of law. Appellants respond that in OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989), the Supreme Court recognized that compensable mental suffering may arise from trespass upon real property where “mental injury flowing from a trespass” is sought to be compensated. Id. at 667. They argue that the Merlots suffered not only a trespass upon their property from the falling bricks and the physical afflictions arising from mental distress which required medical attention, but also pecuniary loss and injury to reputation.

However, the Supreme Court in OB-GYN also “reiterate[d] the rule that for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury might not be physical. An injury to the reputation would be such an injury.” Id. at 667. Thus, as now clarified by the Supreme Court, “the impact which will support a claim for damages for emotional distress must result in a physical injury.” OB-GYN Assoc. v. Littleton, 259 Ga. at 666 (2A).

(a) The Merlots suffered no physical impact or injury of any kind when the bricks collapsed in 1985 and caused damage to their restaurant. It is clear from their testimony that their alleged mental anguish did not result from shock or fright at the trespass, but was a consequence of their worry and distress over the failure of their business and subsequent bankruptcy. The following principles apply. “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. “[D]amages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” OCGA § 51-12-9.

(b) Nor can Mr. and Mrs. Merlot state a claim for pecuniary loss as they did not own the property where the restaurant was located. A Georgia corporation, La Privilege, Inc., held a leasehold interest in the building and operated the Rue de Paris Restaurant, so the alleged negligence resulted in direct injury only to La Privilege, Inc. The Merlots were merely stockholders and employees of the corporation and they made no allegation that the appellants’ negligent act interfered with any employment rights or interests, so as to give rise to a personal cause of action. See Willis v. Ga. Northern Ry. Co., 169 Ga. App. 743 (314 SE2d 919) (1984). The pecuniary losses suffered personally by the Merlots were the destruction of antiques and family possessions, lost wages and profits from the business as shareholders, and clean-up and storage expenses, but such damage to personal property does not authorize recovery for mental suffering. Kuhr Bros, v. Spahos, 89 Ga. App. 885, 890 (81 SE2d 491) (1954); OB-GYN Assoc. v. Littleton, 259 Ga. at 666.

3. Likewise, Pierre Merlot has alleged no cognizable claim for damage to his credit reputation which can be attributed to the brick collapse. To the contrary, there was evidence that the restaurant had been in financial trouble from the day it opened and had consistently lost money. After the business failed, Pierre Merlot’s personal lines of credit were terminated by the bank because La Privilege, Inc., was unable to pay its loans. Although Merlot’s credit card had been can-celled after the bankruptcy and was refused while dining with friends, a companion who was present on that occasion testified that in his view Merlot’s reputation was not injured by the incident. Thus again, any lowering of Pierre Merlot’s credit reputation was not proximately caused by the wrongful conduct complained of. “The conduct of [Aaron Rents and C & S] could have done nothing more than give rise to the occasion which made [appellants’] injuries possible. Other circumstances preponderated in causing [their] injuries. Accordingly, [appellees’] conduct was, at best, a remote cause of [appellants’] injuries. See OCGA §§ 51-12-8; 51-12-9.” Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (3) (341 SE2d 250) (1986). See also, Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394 (3, 4) (106 SE2d 45) (1958). Therefore the directed verdict against him on this issue of damages was correct.

4. In light of the above, there was no error in the trial court’s refusal to allow testimony that the Merlots’ immigration status prevented them from acquiring other jobs in order to mitigate their damages, as asserted in the sixth enumeration.

5. As to enumeration 5, the trial court also properly rejected evidence of “mitigation of damages” expenses sought by Broadfoot for La Privilege, Inc., for expenditures made to replace light fixtures, chandeliers, flowers and redecorating the restaurant after it reopened. Assuming he can establish liability against Aaron Rents and C & S in the trial of the case as renewed, Broadfoot would then be able to recoup for damage to La Privilege’s leasehold and property, as well as remodeling and replacement costs, which would permit a double recovery. At any rate, the court allowed this evidence of expenses to be proffered for later consideration, but this did not occur because the suit was voluntarily dismissed.

Decided July 8, 1991

Reconsideration denied July 31, 1991.

Greene, Buckley, Derieux & Jones, Frank C. Schenck, Smith, Currie & Hancock, S. Gregory Joy, Glower W. Jones, for Aaron Rents.

Hurt, Richardson, Garner, Todd & Cadenhead, A. Paul Cadenhead, C. Michael Johnson, Martha M. Glisson, Homer A. Houchins, Jr., Kenneth L. Karlberg, for Broadfoot.

Fortson & White, Bruce H. Beerman, Beth H. Parodies, for C & S Bank.

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J,, Carley, Pope, Cooper and Andrews, JJ., concur.

       Although it appears from the Supreme Court’s opinion that only Broadfoot as trustee for the corporation was before it, the petition and grant of certiorari covered all three plaintiffs and we consider the remand in that light.

       There was no evidence whatsoever with regard to Marie Merlot’s credit reputation and apparently no claim concerning it. Enumeration 4 complains that the directed verdict on this issue, which embraces both Merlots, was error. The argument and citation of authority address only Pierre Merlot. That is all we consider.


author: Sognier, Chief Judge. Carley, Judge, Andrews, Judge,

text:
    A91A0045.
    SOUTHERN GENERAL INSURANCE COMPANY v. HOLT et al.
    (409 SE2d 852)
   Sognier, Chief Judge.

Bridget Holt was found liable to Geneva Fortson for $82,000 in damages for personal injuries she caused Fortson in an automobile accident. After Holt’s insurer, Southern General Insurance Company, paid the $15,000 limit under Holt’s policy, Holt obtained a release from the balance of the judgment against her by assigning Fortson her claim against Southern General for compensatory damages arising from its negligent and bad faith failure to settle Fortson’s claim against Holt within her policy limits, but retained her claim against Southern General for punitive damages arising from that tort. Holt and Fortson (represented by her trustee in bankruptcy) then brought suit against Southern General seeking compensatory and punitive damages for the alleged bad faith failure to settle. Holt also asserted a claim against Southern General for intentional infliction of emotional distress and sought damages to her peace, happiness, and feelings under OCGA § 51-12-6. A jury awarded $83,000 to Fortson as compensatory damages and $100,000 to Holt as punitive damages on the bad faith failure to settle within policy limits claim, and awarded $25,000 to Holt as compensatory damages on the intentional infliction of emotional distress claim. Southern General appeals.

1. We note initially that the propriety of Holt’s assignment to Fortson of the compensatory damages aspect of her claim against Southern General for its bad faith failure to settle was not raised by any party to this appeal. Accordingly, we intimate no opinion whether that assignment was valid under OCGA § 44-12-24 as involving a right of action which involves “directly or indirectly, a right of property.” Id.; see American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 835 (278 SE2d 719) (1981).

2. Appellant contends the trial court erred by denying its motions for directed verdict because the facts of the case sub judice do not present an issue for the jury concerning a negligent and bad faith failure to settle. “A directed verdict is authorized when ‘there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’ OCGA § 9-11-50 (a). Further, the evidence must be construed most favorably to the party opposing the motion. [Cit.] ‘ “The standard of appellate review of the trial court’s denial of a motion for directed verdict is the ‘any evidence’ standard.” ’ [Cit.]” Foreman v. Eastern Foods, 195 Ga. App. 332, 333 (393 SE2d 695) (1990).

The transcript reveals that appellee Holt drove her car through a stop sign on June 19, 1987, striking appellee Fortson’s vehicle. Holt’s liability for the collision was uncontroverted, and appellant promptly paid Fortson’s property damage claim. On July 27, 1987, appellant’s claims representative wrote Fortson’s attorney, Charles Gower, requesting information concerning Fortson’s medical expenses and special damages for evaluation in regard to a settlement of her personal injury claim. By letter dated October 7, 1987, Gower offered to settle the claim for $30,000, informing appellant that Fortson had incurred $1,926 in medical expenses, $5,184 in lost wages, and that a nerve block procedure might be necessary at an expense of approximately $7,500. The October 7, 1987 offer to settle was withdrawn by letter dated October 13, 1987, which also notified appellant that Fortson had been hospitalized and that she might have a ruptured disc. By letter dated October 19, 1987, Gower informed appellant that Fortson was still hospitalized and had been told that she definitely had a ruptured disc. Gower requested appellant reveal its policy limits in order to facilitate settlement. Appellant refused that request in its letter dated October 28, 1987 and requested further medical information to substantiate Fortson’s condition.

On November 2, 1987, Gower made an offer to settle Fortson’s claim against Holt at the policy limits upon proof of those limits, contingent upon appellant’s acceptance of the offer within an arbitrary period of ten days. Gower enclosed the office notes of Fortson’s physician and informed appellant that her medical expenses then exceeded $10,000 (enclosing two bills totalling $6,516 and an estimate of $4,000 for the hospital bill) and her lost wages exceeded $5,000. On November 9, 1987, Gower sent another letter, enclosing a copy of the lawsuit he intended to file on behalf of Fortson, and reiterated his offer of settlement at the policy limits within ten days of the November 2nd letter. Gower wrote again on November 10, 1987, enclosing a copy of Fortson’s hospital bill for $4,335.50. By overnight delivery, Gower sent a letter dated November 12, 1987, which extended the offer of settlement at the policy limits through the close of business on November 17, 1987, and enclosed Fortson’s complete medical record from her hospitalization, including x-rays related to surgery done to treat the injuries.

It is uncontroverted that appellant did not communicate with Gower during the settlement offer period to accept, reject, counteroffer, or request an extension of time. It is also uncontroverted that appellant did not contact Holt to inform her that Fortson was considering bringing suit against her, that Fortson had given appellant documents indicating her injuries might exceed the policy limits, or that an offer to settle within policy limits had been made by Fortson’s attorney.

On November 18, 1987, Gower wrote to appellant noting the passage of the deadline for settlement and the absence of any response by appellant to the offer, and informing appellant that Fortson would no longer settle for the policy limits. Two days later, on November 20th, appellant’s representative contacted Gower by telephone and offered to settle at the policy limit. That offer and a repeat offer to settle on the same terms, which was made subsequent to the filing of Fortson’s action, were rejected.

“It is no longer open to question in this State that the claim of an insured under an automobile liability policy for damages on account of the bad faith tortious refusal of the insurer to settle a liability claim against [her] within the policy limits resulting in damage to [her] in the form of a judgment in excess of the policy limits being returned against [her] is a legitimate charge against the insurer upon which recovery may be had by the insured. [Cits.]” Shaw v. Caldwell, 229 Ga. 87, 91 (189 SE2d 684) (1972). See McCall v. Allstate Ins. Co., 251 Ga. 869 (310 SE2d 513) (1984). In deciding whether to accept an offer to settle a claim within policy limits, the insurer “must accord the interest of its insured the same faithful consideration it gives its own interest . . . .” (Emphasis deleted.) Great American Ins. Co. v. Exum, 123 Ga. App. 515, 519 (181 SE2d 704) (1971). “[I]t is for the jury to decide whether the insurer has or has not so acted.” Id. See also National Emblem Ins. Co. v. Pritchard, 140 Ga. App. 350 (1) (231 SE2d 126) (1976).

The evidence adduced at trial thus showed that Holt’s liability for Fortson’s injuries arising out of the collision was uncontroverted, as appellant acknowledged by promptly paying Fortson’s property damages; that appellant, while conducting no investigation itself, was kept informed that Fortson had suffered bodily injury as a result of the collision and that her physical condition was deteriorating; and that four and a half months after the collision, Fortson’s attorney extended an offer to settle Fortson’s claims within the policy limits on November 2nd for a duration ultimately extended to November 17th, an offer which appellant never communicated to Holt. While the time period set by Gower was arbitrarily brief, appellant never contacted Gower to request an extension even for the two days which the evidence demonstrated was all the extra time appellant needed before it could accept the offer.

Notwithstanding the above evidence and persuasive foreign case law indicating that appellant’s behavior in failing to inform Holt of the settlement offer (see State Farm &c. Ins. Co. v. Smoot, 381 F2d 331, 338 (5th Cir. 1967); Riske v. Truck Ins. Exchange, 490 F2d 1079, 1085 (8th Cir. 1974)) and failing to settle when the insured’s liability was uncontestable (compare Hall v. Preferred Acc. Ins. Co., 204 F2d 844, 848 (5th Cir. 1953)), demonstrates bad faith or negligence in the refusal to settle a claim within policy limits, appellant argues a verdict in its favor was demanded on the bad faith failure to settle because it breached no duty owed to Holt. Specifically, appellant argues it was not required to take into consideration the arbitrary time limit set by Gower for acceptance of the settlement offer but instead was entitled to evaluate and process that offer according to its established internal operating procedures, which it asserts the evidence showed it followed here with all due haste.

First, looking to an insurer’s obligation to consider an arbitrarily time-limited settlement offer, because a person injured by an insurance company’s policyholder occupies no contractual or fiduciary relationship with the insurer or the insured, see Jones v. Southern Homes Ins. Co., 135 Ga. App. 385, 389 (2) (217 SE2d 620) (1975), that person can set any time for acceptance of a settlement offer, even an unreasonable and arbitrary time. However, an insurer need not be governed by such time limit. See Martin v. Hartford Acc. &c. Co., 39 Cal. Rptr. 342, 347 (1964). Rather, the issue is whether the insurer acted in good faith or bad faith, and that is to be determined by the circumstances of each case. Id.

In order to act in a manner consistent with its duty to give equal consideration to the interests of the insured, Exum, supra; United States F. & G. Co. v. Evans, 116 Ga. App. 93, 96-97 (156 SE2d 809), aff’d 223 Ga. 789 (158 SE2d 243) (1967), we hold that an insurer may not fail to give appropriate consideration to a settlement offer which may reduce the financial burden upon the insured merely because the settlement offer is of limited duration. Although there may be situations in which, given the valid business concerns of the ordinary prudent insurer, the time restriction in a settlement offer may be so unreasonable under the circumstances of the claim that as a matter of law an insurer could not appropriately consider it, a determination of the reasonableness or unreasonableness of the time in the offer will usually be a question for the trier of fact. See Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695, 702 (3) (58 SE 200) (1907); accord J. L. v. State of Ga., 147 Ga. App. 818, 819 (250 SE2d 559) (1978). That determination will necessarily be based on the fact that for an insurer, which must weigh the risks and rewards related to a settlement offer, the impending expiration of a time-limited offer is but one of many elements to be given appropriate consideration. Accordingly, in considering whether an insurer’s failure to accept a settlement offer was negligent or in bad faith, the trier of fact must determine whether the time period provided in the offer was sufficient under the circumstances to enable the insurer to complete its evaluation and processing of the offer.

In the case sub judice, the evidence established that the settlement offer was processed under appellant’s internal operating procedures whereby all claims were handled in the order of their arrival at appellant’s place of business, with no special consideration or priority given to any claim, regardless whether the claim was contested, whether the claim involved an insured or a party injured by an insured, or whether the claim involved a time-limited offer to settle within policy limits. Based on this evidence of its methods of evaluating and processing claims, appellant argues that a verdict in its favor was demanded because it was uncontroverted that under these procedures appellant could not have appropriately considered the settlement offer within the time restraints set by Gower.

We reject appellant’s argument that an insurer’s conduct must be viewed exclusively within the context of the scale of its operations and the internal procedures it has promulgated in order to conduct its business in the fashion it prefers, regardless of the impact those claims procedures may have upon its insureds’ interests. The law imposes upon the insurer the duty to “ ‘exercise diligence, intelligence, good faith, and honest and conscientious fidelity to the common interest of the insured as well as itself in determining whether to accept or reject an offer of settlement. While the insurer may properly give consideration to its own interest, it must in good faith give at least equal consideration to the interest of the insured, and if it fails to do so, it acts in bad faith. [Cits.]’ ” Smoot, supra at 338. See also McCall, supra at 871 (1), and Evans, supra at 97. Given that duty, to accept appellant’s argument would be to authorize insurers to place greater importance on their own interests in the regulation of internal business operations than they place on the interests of their policyholders. This we decline to do. In carrying out its duty to give appropriate consideration to settlement offers of limited duration, an insurer cannot justify its failure to give equal consideration to its insureds’ interests by relying on internal operating procedures promulgated by the insurer when the effect of such procedures is to prevent the insurer from giving the settlement offer that consideration.

“A verdict shall be directed only when the evidence demands — as distinguished from merely seeming to preponderate towards — a certain verdict.” Morris v. Futch, 193 Ga. App. 132, 133 (1) (386 SE2d 905) (1989). The transcript reveals evidence from which the jury could have found that appellant was adequately informed that Fort-son’s claim was a policy limits case prior to the expiration of the settlement demand and that appellant was provided with sufficient medical records to document that Fortson’s bodily injuries exceeded Holt’s policy limits. There was evidence that appellant’s failure to act timely on the offer was the result of appellant’s rigid adherence to internal procedures, and that the effect of those procedures, with their lack of recognition of the relative weights of differing claims, was to elevate appellant’s interest in the uniform management of its claims process over Holt’s interest in having a claim exposing her to financially ruinous liability settled within her policy limits. This evidence, in addition to the inferences the jury could have drawn from appellant’s failure to request an extension of time from Gower, authorized the jury to find that appellant’s failure to respond to the settlement offer prior to its November 17, 1987 expiration constituted a breach of the duty it owed its insured. See Grumbling v. Medallion Ins. Co., 392 FSupp. 717 (Ore. 1975); Andrews v. Central Surety Ins. Co., 271 FSupp. 814 (SC 1967).

Although after considering the closely contested facts adduced by the parties, the jury in the case sub judice might have found in favor of the insurer, as did the jury in DeLaune v. Liberty Mut. Ins. Co., 314 S2d 601 (Fla. App. 1975), quoted at length by the dissent, and the trial court in the bench trial in Clauss v. Fortune Ins. Co., 523 S2d 1177 (Fla. App. 1988), applying as we must the “any evidence” rule, we cannot hold as a matter of law that there was “ ‘not more than a scintilla’ ” of evidence, Jiffy Store v. Bishop, 190 Ga. App. 716, 717 (379 SE2d 602) (1989) to support the jury’s verdict here. Therefore, as the transcript contains some evidence in support of appellees’ claim and as the evidence with all reasonable deductions did not demand a verdict for the insurer, OCGA § 9-11-50 (a), the trial court did not err by denying appellant’s motions for a directed verdict.

Appellant also argues, citing Adduci v. Vigilant Ins. Co., 424 NE2d 645, 649 (Ill. App. 1981), that its acceptance of the expired offer to settle Fortson’s claim within Holt’s policy limits constituted an absolute defense to any liability since there was absolutely no evidence at trial as to why the settlement offer, which was good on November 17, 1987, was unavailable to the insurer two days later. But see Martin, supra at 346 (rejecting insurer’s argument that its purported acceptance of an expired offer constitutes an “absolute defense” to a charge of bad faith failure to settle within policy limits). Appellant’s argument, relied upon by the dissent, challenges the proposition that appellant’s breach of its duty was the proximate cause of Holt’s injury (i.e., the verdict in excess of the policy limits), and is based on the assertion that appellant was not liable because it was Fortson’s action in rejecting appellant’s untimely acceptance of the expired offer to settle that caused Holt’s injury, not appellant’s action in failing to respond timely to that offer.

We do not agree with this argument that an insurer’s so-called “acceptance” of an expired offer which the injured party then rejects serves to absolve the insurer from all damages suffered by the insured as a result of the insurer’s earlier bad faith failure to settle. It is well established law in Georgia that “ ‘[t]he causal connection between an original act of negligence and injury to another is not broken by the “intervening” act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrong-doer.’ [Cit.]” National Upholstery Co. v. Padgett, 111 Ga. App. 842, 849 (143 SE2d 494) (1965). See also Union Carbide v. Holton, 136 Ga. App. 726, 729 (222 SE2d 105) (1975) (no proximate cause where there has occurred “an independent, intervening act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. [Cit.]” (Emphasis supplied.))

An injured party’s rejection of an insurer’s untimely “acceptance” of an expired settlement offer does not break the chain of causation because it is a reasonable and foreseeable effect of the insurer’s failure to settle pursuant to the terms set forth in the offer that the untimely or otherwise nonconforming “acceptance” will be refused, either on reasonable grounds, such as the injured party’s decision to pursue a greater recovery from the insured or, given the adversarial positions occupied by the parties, on wholly unreasonable grounds. Since the injured party is within his or her rights and breaches no duty owing the insurer or the insured by rejecting a nonconforming “acceptance,” it follows that the “intervening act,” i.e., the rejection of the late acceptance, would not be sufficient in and of itself to cause the injury to the insured. See Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395) (1902). At best, the insurer’s “acceptance” of an expired offer may constitute evidence that the insurer, realizing its error, attempted to minimize the damages it may have caused its insured. Accordingly, this argument presents no meritorious basis for reversing the trial court’s denial of appellant’s motions for a directed verdict.

3. Appellant contends the trial court erred by denying its motion to dismiss the complaint. “The familiar rule regarding motions to dismiss for failure to state a claim is that they should not be granted unless the complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. [Cits.]” Property Pickup v. Morgan, 249 Ga. 239, 240 (290 SE2d 52) (1982). Applying the above standard to appellees’ complaint, the trial court did not err by denying the motion to dismiss. See Ledford v. Meyer, 249 Ga. 407, 408-409 (2) (290 SE2d 908) (1982).

4. We find no error in the trial court’s refusal to give a requested charge on the effect of appellees’ failure to exercise ordinary care to avoid the consequences of appellant’s negligence. Appellant’s argument in support of this enumeration is addressed solely to Fortson, who appellant maintains was unreasonable as a matter of law in refusing to accept appellant’s tardy settlement offer. As discussed in Division 2, supra, we reject any suggestion that Fortson was ever under any duty to compromise her claim against Holt or otherwise shelter Holt from the effect of appellant’s negligence. Insofar as Fortson stands in the shoes of Holt as her assignee, but see Division 1, supra, we note that Holt was unable to avoid the negligence of appellant since the settlement offers were not communicated to her.

5. We agree with appellant that the trial court erred by denying its motions for directed verdict as to Holt’s claim for compensatory damages for intentional infliction of emotional distress. “The tort of intentional infliction of emotional distress is recognized in this state where the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff. Claims for intentional infliction of emotional distress have been upheld by this court when the threats on which those claims were based were outrageous and egregious.” (Citations and punctuation omitted.) Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). See Georgia Farm &c. Ins. Co. v. Mathis, 197 Ga. App. 324 (398 SE2d 387) (1990). “[I]t is not enough that [the defendant’s] conduct in a given situation is intentional or that it is wilful and wanton. In order to warrant recovery . . . the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. [Cits.]” Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

Viewing the evidence in the light most favorable to Holt, see Gordon, supra at 518 (1), it is clear that Holt’s evidence failed to establish that appellant’s actions rose to the requisite level of outrageousness and egregiousness. Holt’s claim accused appellant of no conduct more egregious than not acting to prevent a lawsuit from being filed and a judgment in excess of policy limits from being obtained against her. Although Holt testified she had never been sued before and that she and her husband had no assets to satisfy Fort-son’s judgment against her, Holt nevertheless knew she was responsible for Fortson’s injuries because she admitted she caused the accident which was the basis of Fortson’s suit. Holt stated she cried when her husband telephoned her in December 1987 to tell her the suit had been filed and that she was later unable to put the matter out of her mind. Holt testified she was not informed about the settlement offer and appellant’s untimely response, and the transcript does not reflect when she became aware that appellant’s bad faith failure to settle exposed her to a judgment in excess of her policy limits. Trial was had on Fortson’s suit in July 1988, although Holt did not testify in person (a videotaped deposition was used) and within two months thereafter, Holt assigned her claim against appellant to Fortson. The only other evidence submitted was Holt’s testimony that she has not driven a car since her accident with Fortson because the lawsuit made her afraid she would be sued again.

This court has held that the preparation and filing of legal pleadings is not sufficient as a matter of law to sustain a party’s subsequent cause of action for intentional infliction of emotional distress against the one who had filed suit against him, Savell, Williams, Cox & Angel v. Coddington, 176 Ga. App. 179, 180-181 (2) (335 SE2d 436) (1985), even where the lawsuit proceeds to trial and the party is subjected to “severe cross-examination” during the proceedings. East River Savings Bank v. Steele, 169 Ga. App. 9 (311 SE2d 189) (1983). Based on the facts and holdings in these cases, neither the filing and litigation of Fortson’s suit nor the entry of a judgment against Holt in excess of her policy limits constituted acts so outrageous or egregious that they naturally gave rise to the intense feelings of humiliation, embarrassment, fright or extreme outrage necessary to cause severe emotional distress. Moses, supra.

As to Holt’s crying, anxiety over the trial, and her reluctance to drive, we have held that “the severity of the emotional distress allegedly produced by the defendants] conduct is also a factor in determining liability for mental distress. [Cit.] The law will intervene only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. [Cit.] It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. [Cit.]” Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 587 (1) (a) (385 SE2d 719) (1989). We find as a matter of law that a reasonable person could have endured the degree of distress generated by the lawsuit and judgment thereon, and thus hold that Holt’s alleged emotional distress did not meet the above severity requirement. See Moses, supra at 226.

Moreover, as an alternate basis for reversing the denial of appellant’s motions for a directed verdict on the emotional distress tort, it appears that while the complaint asserted two separate torts which, had they both been proven, would have authorized recovery of compensatory and punitive damages under OCGA §§ 51-12-4; 51-12-5.1 on the bad faith failure to settle claim and also damages under OCGA § 51-12-6 on the separate claim of intentional infliction of emotional distress, the transcript reveals that no independent evidence was adduced to support Holt’s claim for damages for her emotional distress but rather that she relied exclusively on the facts used to establish the claim for both compensatory and punitive damages for appellant’s bad faith failure to settle within policy limits. Thus, the evidence actually presented at trial established only one tort, that of appellant’s bad faith failure to settle. It follows that because the jury awarded actual damages for this tort, the “entire injury” was not exclusively to Holt’s peace, happiness, or feelings, OCGA § 51-12-6, and accordingly, Holt was not entitled to recover those damages. Id.; see Mallard v. Jenkins, 186 Ga. App. 167, 168 (366 SE2d 775) (1988); see also Alford v. Oliver, 169 Ga. App. 865, 869 (7) (315 SE2d 299) (1984). Thus, the award of both punitive damages and damages for Holt’s wounded feelings constituted an impermissible double recovery. See Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975).

Accordingly, the trial court erred by denying appellant’s motions for a directed verdict on the intentional infliction of emotional distress claim.

6. Appellant contends the trial court erred by denying its motions for a directed verdict as to the punitive damages based on its tortious failure to settle within policy limits. Appellant’s liability for this tort arose on November 17, 1987, the last day appellant could have accepted Gower’s offer to settle Fortson’s claim against Holt within the policy limits. OCGA § 51-12-5.1 applies to causes of action arising on or after July 1, 1987. Id. at (h). We note that the procedures set forth in OCGA § 51-12-5.1 (d) were not followed in the case sub judice. Compare McClure v. Gower, 259 Ga. 678, 684 (3) (385 SE2d 271) (1989). There is no indication in the record that either party requested that the punitive damages be bifurcated from trial of the main issue or that any objection was made to the trial court’s failure to do so. However, we need not here decide whether parties can waive the requirements of OCGA § 51-12-5.1 (d) because none of appellant’s enumerations of error can be construed as raising this matter, compare Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 656-657 (3) (402 SE2d 753) (1991), and thus we have no jurisdiction to consider this issue. See generally Sanders v. Hughes, 183 Ga. App. 601, 604 (4) (359 SE2d 396) (1987).

Unlike OCGA § 51-12-5, which has been held as prohibiting juries from awarding punitive damages for the purpose of punishing a defendant, see WHM, Inc. v. Thomas, 260 Ga. 654, 655-656 (1) (398 SE2d 196) (1990), OCGA § 51-12-5.1 expressly authorizes a jury to award punitive damages because of aggravating circumstances “in order to penalize, punish, or deter a defendant.” Id. at (a). Where, as here, compensatory damages for the tortious behavior are awarded by the jury, see Sikes v. Foster, 74 Ga. App. 350, 355 (39 SE2d 585) (1946), rev’d on other grounds, 202 Ga. 122 (42 SE2d 441) (1947), an award of punitive damages is authorized “in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

Applying that standard to the facts at hand, we hold the trial court did not err by denying appellant’s motions for a directed verdict on the punitive damages. Affirmative evidence was adduced that appellant failed to accord Fortson’s time-limited settlement offer any special consideration under its internal operating procedures, even though it knew or should have known that its failure to act on the offer might leave Holt personally liable for a judgment in excess of her policy limits; that appellant failed to write or even telephone Gower to seek an extension of the deadline, even though recognizing that the result of its decision to follow its internal procedures eliminated the possibility of evaluating and processing the settlement offer within the time limit; and that appellant failed to inform Holt about the suit Fortson was considering, about the documents Fortson had submitted indicating her injuries exceeded $15,000, and about the offer to settle the claim for the $15,000 policy limits, thereby depriving Holt of any opportunity she might have had to negotiate her own agreement with Fortson.

The evidence established that every aspect of appellant’s conduct in this case was deliberate and intentional, and was the conscious and calculated result of appellant’s decision to give greater importance to its interests in its internal operating procedures than it gave to the interests of its insureds. The evidence adduced at trial established that rather than alter its internal operating procedures to accommodate time-limited settlement offers, appellant deliberately gambled with its insureds’ interests, betting their exposure to a verdict in excess of the policy limits against either the injured party’s acceptance of appellant’s untimely response to the settlement offer or the injured party’s inability to prove damages in excess of the policy limits at trial. By pursuing this course of action appellant had everything to gain and nothing of its own to lose: it would benefit financially if the injured party’s claim proved bogus or insignificant; it would be responsible only for the policy limits if the claim proved valid. The only interests at risk in the case at bar were Holt’s, whom appellant kept ignorant of the gamble it was taking with her financial future. From this evidence, the jury was authorized to conclude that appellant had acted with an entire want of care to the consequences to Holt, and that punitive damages were necessary to penalize or punish this behavior.

Further, in view of the insistent testimony by appellant’s employees that appellant “met [its] legal obligations” by handling the settlement offer in a manner that placed paramount importance on its internal business operations notwithstanding the negative impact on its insureds’ interests, and the evidence indicating that appellant’s actions in the case at bar were not unique to Holt but reflected appellant’s treatment of all similarly positioned insureds, the jury was entitled to conclude that appellant was so convinced its tortious behavior was acceptable that it would continue in its behavior unless the jury, through its verdict, could convince it otherwise. From this evidence, the jury was authorized to conclude that in order to deter appellant from continuing to act with conscious indifference to the consequences to its insureds, punitive damages were necessary.

The jury found appellant liable for $83,000 as actual damages for its tortious behavior and for $100,000 in punitive damages, an amount well within the maximum set by OCGA § 51-12-5.1 (g) and which, unlike the situation in Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) (1988) (construing OCGA § 51-12-5), does not reflect an absence of any rational relationship between the offense and the punishment and does not meet the standard set forth in Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 766 (386 SE2d 120) (1989) to render it an unconstitutional deprivation of property. Therefore, because these damages were authorized by the evidence and OCGA § 51-12-5.1, the trial court properly denied appellant’s motion. See generally Jones v. Padgett, 186 Ga. App. 362, 364-365 (5) (367 SE2d 88) (1988); Bowen v. Waters, 170 Ga. App. 65, 67 (316 SE2d 497) (1984). See also Smoot, supra at 338-339 (3); Miller v. Elite Ins. Co., 161 Cal. Rptr. 322, 332-333 (1980).

7. Finally, appellant contends the trial court erred by denying its motion to disqualify counsel for appellees. The record reveals that appellant filed its motion the Friday before the Monday the jury trial began. The trial court found that the disqualification of Gower was not appropriate under the circumstances. We affirm.

Appellant argues that Gower’s knowledge of the underlying settlement negotiations made him an essential witness for his clients so that the trial court erred by not disqualifying him as counsel for Fort-son and Holt in the case sub judice pursuant to certain provisions of the Georgia Code of Professional Responsibility, 252 Ga. 581 (1984). The issue raised concerns whether Gower’s proper role in the case at bar was as advocate or witness, two roles which are fundamentally inconsistent. Ethical Consideration 5-9. See Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985). Directory Rule 5-102 provides that “[w]hen a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court on behalf of his client.”

“The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel. [Cit.]” Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985). The Supreme Court considered the inconsistency of an attorney serving both as witness and advocate in Cherry v. Coast House, Ltd., 257 Ga. 403 (359 SE2d 904) (1987). In that case there was a “virtual certainty” that Rolleston, a party to the case as well as Cherry’s attorney in her claim for tortious interference with a contract, would be called upon to testify “not only as a witness for himself because of his position as a party but also as a witness on behalf of Mrs. Cherry because he was present without his client at the closing which is at the heart of this case.” Id. at 405 (3). That case presents facts in marked contrast to those present in the case sub judice, where Gower’s activities were restricted to settlement negotiations conducted entirely by correspondence, where there was no question regarding the contents or authenticity of that correspondence, and where appellant had admitted receipt of the correspondence in its answer. Rather than being “crucial” to the case, id., Gower’s testimony could only have added to the evidence presented through exhibits admitted at trial. “It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative.” EC 5-10.

“ ‘[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.’ ” Cherry, supra at 405 (3). We find no error in the trial court’s denial of appellant’s motion.

Finally, pretermitting both the issue whether the mere potential for a violation of DR 7-106 (C) (3) constitutes an appropriate basis for disqualification of counsel and the issue whether any comments by Gower could possibly be construed as violative of that directory rule, the transcript reflects that despite the trial court’s explicit direction to appellant to object and demand a ruling if any comments by Gower during the trial were inappropriate, appellant failed to timely object to any specific instance where Gower allegedly violated this rule. Thus, it waived its right to contest this issue on appeal. See Coffee v. Silver, 195 Ga. App. 247, 248 (2) (393 SE2d 58) (1990).

Judgment affirmed in part; reversed in part.

McMurray, P. J., Banke, P. J., Pope and Cooper, JJ., concur. Beasley, J., concurs in the judgment only. Birdsong, P. J., Carley and Andrews, JJ., concur in part and dissent in part.

Carley, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1, 2, 3, 4, 5, and 7 of the majority opinion. However, I cannot concur with Division 6 in which the majority finds no error in the trial court’s denial of appellant’s motions for directed verdict as to punitive damages. As noted by the majority, Holt’s entitlement to punitive damages must be determined in accordance with OCGA § 51-12-5.1 because the cause of action arose after July 1, 1987. This amendment “changes the burden of proof from a preponderance of the evidence to clear and convincing evidence.” Cobb & Eldrige, Ga. Law of Damages (3d ed.), § 4-1, p. 62. It is my opinion that, as a matter of law, it was not “proven by clear and convincing evidence that the [insurer’s] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Accordingly, the trial court erred in failing to direct a verdict as to punitive damages.

Andrews, Judge,

concurring in part and dissenting in part.

1. I join in Divisions 1, 3, 4 and 5 of the majority opinion.

2. I respectfully dissent from the majority’s conclusion in Division 2 because basic elements of Fortson’s bad faith excess verdict claim were missing from this case. In order to avoid a directed verdict, basic tort law principles dictate that Fortson introduce evidence that Southern General breached a duty owed to Holt, and that such breach was the legal cause of harm to Holt. Although I agree with the majority’s conclusion that Holt was harmed, I disagree with the majority’s conclusion that the jury was authorized to find that a duty was breached, and that such breach was the proximate cause of Holt’s harm.

From my review of the record, I do not find that there was legally sufficient evidence that Southern General breached its duty to Holt to submit this issue to a jury. The duty an insurer owes to its insured in deciding whether to accept an offer of settlement within policy coverage is to “accord the interest of its insured the same faithful consideration it gives its own interest. . . .” Great American Ins. Co. v. Exum, 123 Ga. App. 515, 519 (181 SE2d 704) (1971); U. S. Fidelity &c. Co. v. Evans, 116 Ga. App. 93 (156 SE2d 809) (1967). Here, if Southern General, either through bad faith or negligence, failed to accord the same faithful consideration to Holt’s interests as it did to its own interests, Southern General would have breached its duty. See generally Home Ins. Co. v. North River Ins. Co., 192 Ga. App. 551, 556 (385 SE2d 736) (1989).

Construing the evidence in favor of Fortson, the opponent of the motion for directed verdict, a jury would have been authorized to find that, as of the date of expiration of the offer, Fortson’s attorney had provided information to Southern General indicating that the claim would exceed the limits of its policy coverage. The majority interprets this information as evidence of “failing to settle when the insured’s liability was uncontestable.” In rejecting an excess verdict claim under similar facts, the Fourth District Court of Appeals of Florida stated: “Since when does one party to a lawsuit have to accept at face value the medical information furnished by the other party without even an inquiry? The evidence here shows that appellee, its adjusters, and its counsel proceeded with all due haste to determine and evaluate their position, and they almost made plaintiff’s unreasonable deadline.” DeLaune v. Liberty Mut. Ins. Co., 314 S2d 601 at 603 (Fla. Dist. Ct. App. 1975).

Contrary to the majority’s implication, DeLaune, supra, did not simply uphold a jury verdict for the insurer applying an “any evidence” rule. Rather, the court held, “the evidence fails to prove any negligence, must less negligence rising to the level of bad faith. ...” DeLaune, supra at 602. DeLaune expresses the majority, and I believe better reasoned, analysis as to arbitrary time-restricted offers. See also Adduci v. Vigilant Ins. Co., 424 NE2d 645 (Ill. App. 1981); American Mut. Ins. Co. of Boston v. Bittle, 338 A2d 306 (Md. Ct. Spec. App. 1975); Clauss v. Fortune Ins. Co., 523 S2d 1177 (Fla. Dist. Ct. App. 1988); Baton v. Transamerica Ins. Co., 584 F2d 907 (9th Cir. 1978); Bailey v. Hardware Mut. Cas. Co., 322 FSupp. 387 (W.D. La. 1969); but see Andrews v. Central Surety Ins. Co., 271 FSupp. 814 (S.C. 1967).

The majority opinion, sub silentio, adopts a rule that an insurer is required to give the insured’s interests paramount consideration. This rule was specifically rejected in National Emblem Ins. Co. v. Pritchard, 140 Ga. App. 350 (231 SE2d 126) (1976).

Decided July 16, 1991

Reconsideration denied July 31, 1991

Freeman & Hawkins, Paul M. Hawkins, Edward M. Newsom, Michael J. Goldman, for appellant.

Kelly, Denney, Pease & Allison, Allen C. Levi, Charles A. Gower, for appellees.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, amicus curiae.

Additionally, assuming for purposes of this decision that Southern General’s failure to accept the policy limits offer prior to the close of business on November 17, 1987, would authorize a jury to find that it had, through bad faith or negligence, breached its duty to Holt at that time, there is no evidence that the breach was the legal cause of Holt’s damage.

Three days after the expiration of the policy limits offer to settle expired, Southern General offered to settle for the policy limits. This offer remained “on the table” through the entry of the verdict against Holt some seven months later. Thus, it was incumbent upon Fortson to prove that the legal cause of Holt’s harm was attributable to Southern General, rather than to Fortson, or Fortson’s attorney. “No facts sufficiently indicate why [Fortson] found it impossible to accept the offer at [another] time, so as to fairly place the blame for failure of settlement upon [Southern General].” Adduci, supra at 649.

Under the majority opinion, policy limits are meaningless in the face of a “Holt letter.” I cannot agree.

3. Because of my disagreement with the majority’s conclusion in Division 2, I necessarily must dissent from the majority’s conclusion in Division 6.

4. In light of my conclusion regarding Division 2, I believe that attorney Gower’s proper role in the case sub judice would be that of a witness, rather than of an advocate. Therefore, I respectfully dissent from Division 7 of the majority opinion.

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

       In order to address this argument, however, we note the necessity of overlooking the fact that appellant never requested an extension of time from Gower.

       “In appearing in his professional capacity before a tribunal, a lawyer shall not . . . assert his personal knowledge of the facts in issue, except when testifying as a witness.”

       The majority also concludes “that appellant’s behavior in failing to inform Holt of the settlement offer . . . demonstrates bad faith or negligence in the refusal to settle a claim within policy limits. . . .” However, the majority fails to discuss how this might have contributed to Holt’s harm.