text:
    A97A2358.
    In the Interest of H. L. W. et al., children.
    (493 SE2d 637)
   Blackburn, Judge.

On April 11, 1995, the juvenile court entered an order finding that H. L. W. and K. A. W., the natural children of Sunny Wilson (their mother), were deprived and awarding temporary custody of the children to their paternal grandmother, Rachel Wilson. The grandparents subsequently petitioned to terminate the mother’s parental rights. A trial was held on March 26, 1997, following which the juvenile court entered an order terminating the mother’s parental rights and awarding permanent custody to the grandparents. The mother appeals this decision, claiming that the evidence was insufficient to support the termination.

“Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ For purposes of this case, a finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-8Í (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) Id.

On appeal, the mother does not contest the juvenile court’s findings that the children are deprived and that lack of proper parental care and control is the cause of the deprivation. However, she contends that there was not clear and convincing evidence that such deprivation was likely to continue or that it would cause serious harm to the children. She also contends that there was insufficient evidence that termination of her parental rights was in the children’s best interests.

The evidence was sufficient to authorize the court to find that the cause of the children’s deprivation was likely to continue. In its April 11, 1995 deprivation order, the court found that the children were without proper parental care, that the mother had periodically abandoned the children to the care of their grandmother, that the mother abused cocaine, and that the mother had no visible means of support or a stable living arrangement. The court also found that the mother was involved in an abusive relationship with her boyfriend which had exposed the children to domestic violence. At one point, the boyfriend had pushed the mother and children out of a car at 4:00 a.m. on the side of Interstate 85, breaking the mother’s ankle and forcing the children to wait in the rain until a passing truck stopped. At the termination trial, there was evidence that Thomas beat the mother and “french kissed” one of the children.

In the deprivation order, the court ordered that the children were to have no contact with the boyfriend, Randy Thomas. Nevertheless, the evidence at the termination trial showed that a year and a half later, in October 1996, the mother attended several parenting classes with Thomas. When asked why Thomas was attending the classes, the mother told a DFCS caseworker that “he was probably going to be around the children if she got the children back.” The mother testified at trial that Thomas attended the classes because “he was going to be in my life with my children.”

The mother testified at trial that she no longer lived with Thomas. However, the court noted in its order that she had testified similarly at the March 1995 deprivation hearing, although she admitted at trial that she had in fact lived with Thomas through the summer of 1995. The mother testified that she lived with Thomas again from January 1996 until January 1997, at which time she and Thomas were arrested in a stolen vehicle on possession of cocaine charges. The children’s grandmother testified that the children continue to be afraid of Thomas. Given the mother’s prior false testimony, her continued association with Thomas after the court’s order that he have no contact with the children, her history of moving into and out of Thomas’ residence, and the fact that she was living with Thomas less than three months prior to trial, the court was authorized to disbelieve the mother’s claims that her relationship with Thomas was completely severed.

In addition to her relationship with Thomas, the record reveals that, prior to the termination hearing, the mother exhibited only intermittent interest in her children. After the deprivation hearing, the mother had no contact with the children or their grandparents from June 1, 1995 until late August 1995. Rachel Wilson testified that she did not know where the mother was during this time, and that the children were very upset by the mother’s disappearance and thought she was dead. During this period, the mother failed to appear at a citizen’s review panel meeting in June. The mother testified that she was not notified of this meeting; however, she also testified that she had given the court her sister’s address for notice purposes, but that she did not tell her sister where she was staying because she was mad at her for testifying against her previously. The mother also failed to appear at a second citizen’s review panel meeting in December, telling the grandmother that she overslept.

On February 11, 1996, the mother failed to show up for K. A. W.’s birthday party, although she had said she was coming. She left presents for K. A. W. outside the grandparents’ house the next day, but did not come inside or speak to K. A. W. The mother had no further contact with the children or their grandparents until a citizen’s panel review meeting on March 20, 1996. At the meeting, the mother told the children she would , come see them at the grandparents’ house later that day, but did not show up. At the panel review meeting, visitation was scheduled for every Saturday. After showing up for such visitations on the first three Saturdays, the mother did not appear for any further Saturday visitations. She saw the children only two or three times from April 18, 1996 until August 14, 1996.

In August 1996, Diane Wickman, a parenting aide assigned by DFCS, began supervising visitation between the mother and the children on Monday afternoons. After several weeks of visitation, the mother failed to show up at the scheduled meeting place on October 28 and November 11, 1996. Wickman testified that the mother’s failure to show up caused the children to believe she must be dead.

After the mother’s failures to appear, Wickman tried to contact the mother, but the mother did not return her telephone calls. Wickman went to the scheduled meeting place without the children on November 18, 1996, but the mother again did not show up. The mother testified at trial that she did not return Wickman’s calls because she had heard “through the grapevine” that Wickman was in favor of termination and that she was wasting her time.

After seeing the children in an unsupervised visit around Christmas 1996, the mother did not attempt to see the children again until March 1997, shortly before the termination trial. Given the mother’s total failure to maintain consistent contact with the children, and her indifference to the effect of her actions upon the children, the trial court was authorized to find that the mother was guilty of mental and emotional neglect of the children. “Deprivation of love and nurture is equally as serious as mental or physical disability.” In re Levi, 131 Ga. App. 348, 352 (206 SE2d 82) (1974).

In addition to her failure to show interest in her children, the record shows that the mother has failed to comply with court-ordered conditions for reunification. In its deprivation order, the court directed that a reunification case plan be developed. This case plan required the mother to complete a drug and alcohol evaluation and treatment program. Although the mother testified that she underwent drug and alcohol evaluations, she has failed to complete any of the recommended treatment. The case plan also required the mother to complete a parenting program. The mother attended four out of the twelve parenting classes, but failed to appear for the remainder.

Additionally, the court found that the mother had' failed to obtain stable employment as required by the deprivation order. From the summer of 1995 until January 1996, while living with her sister, the mother was paid $40 per week for watching her sister’s children. Prior to January 1997, when Randy Thomas was arrested, the mother worked occasionally with Thomas as a plumber’s helper, but never received a paycheck in her own name. The mother testified that she obtained employment three weeks prior to trial in Clarks-ville, Tennessee, where she had moved in with her mother. However, she testified that, under the terms of her probation on a forgery conviction in Jackson County, Georgia, she would have to return to Georgia if she was unable to pay a $900 fine in 60 days. The mother has failed to provide any monetary support for the children since custody was awarded to the grandparents.

The court also found that the mother had failed to obtain stable living arrangements, as required by the deprivation order. She lived in Lawrenceville with Randy Thomas until the summer of 1995, at which time she moved in with her sister in Duluth. In January 1996, after her sister asked her to leave because of her drug problems, she moved back in with Thomas in his trailer in Pendergrass, Georgia. After Thomas was arrested on drug charges, she moved back in with her sister for a short period. In March 1997, she moved in with her mother in Clarksville, Tennessee. However, she indicated that her mother would probably not remain in Clarksville for more than six months.

Although the mother contends she is now willing to take steps to be a proper parent, “judging the credibility of her good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702) (1997). “[T]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.” (Punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). Accordingly, we find that there was sufficient evidence to support the trial court’s determination that the cause of the children’s deprivation was likely to continue.

There was also sufficient evidence to support the trial court’s determination that continued deprivation was likely to result in serious physical, mental, emotional, or moral harm to the children, ánd that termination was in the children’s best interests. There was evidence that the children were devastated when their mother would repeatedly fail to see them as expected, and that many times they believed their mother must be dead. There was testimony that the children remained terrified of Randy Thomas, with whom the mother continued to have a relationship long after entry of the deprivation, order. There was evidence that the children had developed a deep bond with their grandparents, who provided a loving, nurturing, and stable home environment. “[T]he juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” In the Interest of M. L., supra at 117 (2). Accordingly, the juvenile court did not err in terminating the mother’s parental rights. See In the Interest of J. L. Y., 184 Ga. App. 254, 255 (361 SE2d 246) (1987).

Decided November 6, 1997.

Sherriann H. Hicks, for appellant.

Kutner & Bloom, Jeanney M. Kutner, Mary B. James, for appel-lee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A2436.
    HOME INSURANCE COMPANY v. SUNRISE CARPET INDUSTRIES, INC.
    (493 SE2d 641)
   Eldridge, Judge.

On April 19, 1990, plaintiff-appellant Home Insurance Company (“Home Indemnity”) issued to defendant-appellee Sunrise Carpet Industries, Inc. (“Sunrise”), a policy of workers’ compensation insurance and employer’s liability insurance for the policy period from March 26, 1990, to March 26, 1991. The policy covered employees of Sunrise who were employed at the plant located on Highway 411 North and at the office-warehouse located on Duvall Road. Sunrise had additional clerical employees, as well as a truck driver.

The information page of the insurance policy provided: “The premiums for this policy will be determined by our manuals of rules, classifications, rates and rating plan. All information required below is subject to verification and change by audit.” (Emphasis in original.) The “information required below” consisted of four classifications of Sunrise employees, the rates for each classification, and estimated payroll for each classification. The classifications were: (1) carpet or rug manufacturing; (2) loose-leaf ledger or notebook manufacturing; (3) store: wholesale; and (4) clerical office employees. The policy was issued on April 19, 1990, and contained Item 4, infra.

Item '4 Est. Total Rate per Est.

Remun. $100 Premium

Classifications Code No. ANNUAL of Remun. ANNUAL

Carpet mfg. 2402 $1,155,000 8.18 $94,479

Loose-leaf mfg. 4251 $ 308,921 5.78 $17,856

Store, wholesale 8018 $ 223,650 4.46 $ 9,975

Clerical office 8810 $1,346,852 .59 $ 7,946

The initial total estimated annual premium was $182,074 after all discounts and factors were calculated. The policy obligated Home Indemnity to determine the proper classifications and actual exposure under the policy. Sunrise also agreed to pay all the premiums due as calculated by Home Indemnity, which it did during the policy period but disputed an excess premium imposed after the policy expiration. The policy provided that “[t]he final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy.”

The Manual of Rules, Classifications, Rates & Rating Plans (“NCCI Manual”), incorporated into the policy by reference, was to group employees by classification to reflect the common risk exposure of such classification. The standard exception classification for clerical office employees was code 8810 and the classification for truck drivers was code 7380. Classification codes 4251 and 8018 are not standard exception classifications. The reallocation of payroll among classifications is not a change or correction in classification under the NCCI Manual. NCCI Manual Rule IV (G) (2) conflicts with the policy provisions in that it does not allow a change in classification which will result in an increase in premiums except in section c, which reads “During the last 90 days of the coverage, corrections in classifications will not be effected except upon a renewal policy, if any.”

During a May 1990 audit Home Indemnity determined that classification codes 2402, 8810, and 7380 applied to Sunrise’s operations but made no changes until February 28, 1991. Following the audit, Home Indemnity finally issued an endorsement to the policy dated February 19, 1991, less than two months prior to the expiration date of the policy which caused an increase in the premiums, which reads as follows:

Class Code No. Est. Remun. Annual Rate/Remun. Est. Prem. Annual

Carpet mfg. 2402 $1,865,323 8.18 $152,583

Clerical 8810 $ 590,711 .59 $ 3,485

Drivers 7380 $ 13,537 7.76 $ 1,050

On February 28, 1991, Home Indemnity issued a new endorsement that reinstated the original April 19, 1990 classifications and payroll. On March 4, 1991, Home Indemnity issued an endorsement that replaced the February 28, 1991 endorsement and reinstated the classifications and payroll as they existed in the February 19, 1991 endorsement. At all times classification codes 2402 and 8810 wfere in the policy.

Sunrise was provided insurance coverage for the policy period, which expired on March 26, 1991. Nearly two months after the policy expiration date, Home Indemnity conducted yet another audit of the expired policy period. Home Indemnity determined that the estimated payroll (premium basis) for each classification had been incorrectly applied by it; it reallocated the payroll among classification codes 2402, 7380, and 8810; and it alleged that Sunrise owed an additional premium of $95,882 for the expired policy period. On May 28, 1991, Home Indemnity billed Sunrise for the excess premium. Home Indemnity then determined that Sunrise had made excess payments for the earlier policy period March 26, 1989 to March 26, 1990, and applied such excess payments to the current claimed excess premium due for the policy period March 26, 1990 to March 26, 1991, to reduce the alleged excess premium to $68,857. Sunrise made an immediate protest that Home Indemnity had misapplied the classifications to obtain the premium excess and refused to pay.

Home Indemnity hired an expert, Jack Morris, to review the matter. Morris’ opinion was that Home Indemnity had correctly calculated the excess premium in its May 28, 1991 audit, but he expressed no opinion as to the many other prior errors and miscalculations Home Indemnity made requiring the post-coverage calculation. He agreed that, in his opinion, Home Indemnity correctly applied the NCCI manual to the terms of the policy. Morris based his opinion upon the prior audit opinion of Robert E. Pomeroy, the NCCI classification inspection report, and the audit opinion of Robert B. Sellers.

Home Indemnity sued Sunrise on November 28,1994, for failure to pay the disputed excess premium. Sunrise answered timely. Home Indemnity moved for summary judgment, and Sunrise filed its cross-motion for summary judgment. On June 17,1997, the trial court filed its order which granted Sunrise’s motion for summary judgment and denied Home Indemnity’s motion for summary judgment. Home Indemnity timely filed its notice of appeal.

1. The first enumeration of error is that the trial court erred in granting Sunrise’s cross-motion for summary judgment. We do not agree.

NCCI Manual Rule IV (G) is in direct conflict with the policy provision allowing an audit at the end of the policy period to determine the classifications and allocations of the payroll to increase the premiums. “[Two] well known rules used in the construction of insurance contracts apply. Any ambiguities in the contract are strictly construed against the insurer as drafter of the document, Hulsey v. Interstate Life &c. Co., 207 Ga. 167 (60 SE2d 353) (1950); ... and insurance contracts are to be read in accordance with the reasonable expectations of the insured where possible, Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291 (265 SE2d 102) (1980).” Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983); Lieber Foods v. Nat. Investors Life Ins. Co., 143 Ga. App. 517 (239 SE2d 202) (1977). Ambiguity in an insurance contract is duplicity, indistinctiveness, or uncertainty of meaning or expression. Alley v. Great American Ins. Co., 160 Ga. App. 597 (287 SE2d 613) (1981). When two provisions of an insurance contract conflict or are repugnant to each other, the provision most favorable to the insured shall apply. U. S. Fire Ins. Co. v. Hilde, 172 Ga. App. 161 (322 SE2d 285) (1984); see also Cotton States Mut. Ins. Co. v. Crosby, 149 Ga. App. 450 (254 SE2d 485) (1979), rev'd on other grounds, 244 Ga. 456 (260 SE2d 860) (1979); McLendon v. Carolina Life Ins. Co., 71 Ga. App. 557 (31 SE2d 429) (1944). When the premium and method of premium calculation are ambiguous or contradictory, the method of calculation most favorable to the insured shall be applied. Davis v. United American Life Ins. Co., 215 Ga. 521 (111 SE2d 488) (1959).

“Although no Georgia cases have addressed an insurer’s duty to deal with the insured [with regard to retrospective premiums] in good faith, several other jurisdictions have imposed such a duty on the insurer. [Cits.] We are persuaded by the reasoning of these cases that because of the potential for conflict of interest, in dealing with retrospective premium policies, a duty is imposed upon the insurer to act reasonably and in good faith.” Benton Express v. Royal Ins. Co. of America, 217 Ga. App. 331, 332-333 (1) (457 SE2d 566) (1995). While this policy is not a retrospective premium policy, it has retroactive premium calculation provisions so that the same duties apply to the insurer, because the insurer has the power to change significantly the premiums due after the expiration of the policy. The insured provided with an estimated premium expects that if all factors remain the same that the final premium will fall within a reasonable range of such estimate; the insured relies upon the expertise of the insurer to provide a fair estimate and not to radically change the basis for such calculation. The insurer has the duty initially, throughout the coverage period, and finally on audit to make reasonable calculations, i.e., just trust me. Thus, the same duties of reasonableness and good faith apply.

Home Indemnity performed its first audit in May and June 1990 and determined that it needed to change the classifications of Sunrise’s work force in a fashion that would increase its premiums. Home Indemnity failed to timely advise Sunrise of this even though NCCI Manual Rule IV (G) makes the effective date of such increase the time when the insurer makes such determination. Instead, Home Indemnity waited until February 16, 1991, to give Sunrise notice through the change of endorsement. However, NCCI Manual Rule IV (G) (2) c. prohibited any such change in classification during the last 90 days of the policy, which expired on March 26,1991, and therefore the February 19; 1991 endorsement and the subsequent endorsements on February 28 and March 4, changing the classifications and increasing the premium, were void under the provisions of NCCI Manual Rule IV (G) (2) c. Therefore, the post-expiration policy audit could not change the classifications to increase the premium, but could leave the classifications and premium the same or change the classifications and decrease the premium. See NCCI Manual Rule IV (G) (2). The trial court correctly granted Sunrise’s cross-motion for summary judgment.

2. The second enumeration of error is that the trial court erred in denying Home Indemnity’s motion for summary judgment. We do not agree for the reasons set forth in Division 1.

Furthermore, the trial court correctly denied Home Indemnity’s motion for summary judgment because there is a jury question as to the weight and credibility of movant’s expert’s opinion, which was based upon the opinions of others as to the proper classifications, as well as other audit and accounting issues that are matters of opinion and interpretation contained in business records and the expert opinion of such employees. Summary judgment may not be based only upon opinion evidence, expert or lay opinion with a proper predicate, because such opinion evidence requires a factual determination by a jury whether to accept it in whole or in part and what weight and credibility to give the opinion. See Howard v. Walker, 242 Ga. 406, 407 (249 SE2d 45) (1978); Ginn v. Morgan, 225 Ga. 192, hn. 2 (167 SE2d 393) (1969); Standex Intl. Corp. v. Driver, 223 Ga. App. 645, 646 (478 SE2d 605) (1996); Cameron v. Moore, 199 Ga. App. 800, 802 (406 SE2d 133) (1991); Ga. Power Co. v. Sinclair, 122 Ga. App. 305, 308 (2) (176 SE2d 639) (1970); Dowis v. McCurdy, 109 Ga. App. 488, 490 (2) (136 SE2d 389) (1964).

Decided November 6, 1997.

Wimberly & Lawson, James L. Hughes, for appellant.

Hiñe & Niedrach, Edward Hiñe, Jr., Eli J. Richardson, for appel-lee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       Home Insurance Company acquired all the assets and liabilities of Home Indemnity Company by merger subsequent to the claim arising. To avoid confusion caused by the name of the insurer in the record, Home Indemnity will be used to identify the plaintiff-appellant.

       The estimated payroll is also known as the premium basis for each classification.

       Carpet or rug manufacturing, Noc. Code No. 2402.

       Loose-leaf ledger or notebook manufacturer, Noc. Code No. 4251.

       Store: wholesale, Noc. Code No. 8018.

       Clerical office employees, Noc. Code No. 8810.

       NCCI Manual Rule IV (A) and IV (B) (2).

       NCCI Manual Rule IV (B) (2).

       NCCI Manual Rule IV (G) (5).


author: Judge Harold R. Banke.

text:
    A96A1781.
    MORGAN v. GUARANTY NATIONAL COMPANIES.
    (493 SE2d 736)
    Decided November 7, 1997.

      Murray & Stewart, Larry E. Stewart, for appellant.

      Hawkins & Parnell, Kevin J. Bahr, Warner S. Fox, for appellee.
   Judge Harold R. Banke.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Morgan v. Guaranty Nat. Cos., 268 Ga. 343 (489 SE2d 803) (1997), our decision in Morgan v. Guaranty Nat. Cos., 223 Ga. App. 41 (477 SE2d 26) (1996), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: Pope, Presiding Judge.

text:
    A97A1527.
    In the Interest of T. D. W., a child.
    (493 SE2d 736)
   Pope, Presiding Judge.

T. D. W., a minor, was adjudicated delinquent on the offenses of leaving the scene of an accident, reckless driving, and aggravated assault, and appeals.

1. T. D. W. argues that the trial court denied his constitutional and statutory rights to counsel and that he was prejudiced. Concluding that T. D. W. did not knowingly waive his right to counsel, we reverse.

The record reflects that on March 12,1996, a complaint charging T. D. W. with the misdemeanor offenses of reckless conduct and leaving the scene of an accident arising from a March 11, 1996 incident was filed in juvenile court. On April 4, 1996, an intake conference was conducted at which a court service worker read T. D. W. his rights, and both T. D. W. and his mother signed an acknowledgement of rights form. The form, which correctly indicated that T. D. W. had been charged with reckless driving and leaving the scene of an accident, stated that T. D. W. had been informed of the importance of being represented by an attorney and had been informed of the possible dispositions which the court could order in the case. The form indicated that T. D. W. denied the charges and requested an attorney. Accordingly, T. D. W.’s application for a court-appointed attorney was completed, but his application was disapproved on April 10, 1996. Notations on the application, which is signed by a “judge or authorized representative,” indicated that T. D. W.’s application was rejected because his family was not indigent.

The delinquency petition was filed in juvenile court on April 25, 1996. On April 29 and May 13,1996, T. D. W. and his father appeared without counsel for the scheduled arraignments. Both times the arraignments were continued on motion by the State with no objection from T. D. W. or his father. An amended petition, adding the charge of aggravated assault, a designated felony under OCGA § 15-11-37, was filed on July 15, 1996. On that date, T. D. W. and his father appeared without counsel for the arraignment. The court read T. D. W. all of the charges, including the aggravated assault charge as a designated felony under OCGA § 15-11-37, and T. D. W. denied all charges. The court indicated that T. D. W.’s rights had been read to him on April 4, 1996, that he had denied the charges, that he wanted an attorney, and that his application for a court-appointed attorney had been rejected. The court gave T. D. W.’s father a sheet of instructions to use if he decided not to hire an attorney and instructed T. D. W.’s father that if he decided to hire an attorney, “it would be nice to have him within 30 days.” T. D. W. and his father were also given a “Notice Regarding Counsel,” which was signed by T. D. W.’s father and witnessed by the judge, which stated: “if you plan to retain an attorney, you should do so immediately and notify this Court as to the attorney’s name and address within thirty days.” The form then stated: “[i]f your child wishes to be represented by an attorney but you do not feel that you can afford one, you need to return to the reception area of the Juvenile Court immediately following this hearing and a juvenile court officer will meet with you and give you a form to determine if you are indigent.” The form concluded by stating that questions regarding attorneys should be directed to the court’s intake officers.

On August 27, 1996, T. D. W. and his father appeared without counsel for the adjudicatory hearing. The court made no inquiry regarding counsel or T. D. W.’s diligence in procuring representation and proceeded with the hearing. T. D. W.’s father handled the defense; the court adjudicated T. D. W. delinquent. On October 21, 1996, the court held a dispositional hearing, at which T. D. W. was represented by counsel. On this date, the court ordered T. D. W. to serve a minimum of 120 days in boot camp. On October 23, 1996, T. D. W. filed an application for appointment of counsel, and on October 25, the court entered an order appointing counsel for T. D. W.

The question of a voluntary and knowing waiver of a juvenile’s right to counsel depends on the totality of the circumstances, and the State has a heavy burden in showing that the juvenile understood and waived his right to counsel. Crawford v. State, 240 Ga. 321, 323-324 (240 SE2d 824) (1977); see generally OCGA § 15-11-30 (b). “In Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), the court held that where a defendant proceeds to trial and represents himself the record should reflect that the trial court made the defendant aware of the danger of proceeding without counsel. This is particularly true in juvenile cases as the state has a heavy burden in showing that the juvenile did understand and waive his rights.” (Citations and punctuation omitted.) In re B. M. H., 177 Ga. App. 478, 479 (339 SE2d 757) (1986); but see Burnett v. State, 182 Ga. App. 539 (356 SE2d 231) (1987) .

In this case, T. D. W. was non-indigent, and accordingly, we will apply the standards for waiving retained counsel. Though this Court has not explicitly addressed the issue of waiving retained counsel in a juvenile case, we conclude that the same standard as that used with retained counsel for adult offenders is appropriate. “For a non-indigent defendant, such as appellant, the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.” (Citation and punctuation omitted; emphasis in original.) Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992); see also Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990); Callaway v. State, 197 Ga. App. 606 (398 SE2d 856) (1990).

In the instant case, there is no indication that on the date of the adjudicatory hearing the court addressed the issue of T. D. W.’s representation. The record contains no evidence that the trial court attempted to ascertain whether T. D. W. or either of his parents acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney was attributable to reasons beyond T. D. W.’s control. Houston v. State, 205 Ga. App. at 704. The record should have reflected that the court inquired into T. D. W. and his father’s diligence in securing representation. Accordingly, we must vacate the adjudication of delinquency and the dispositional sentence and remand the case to the trial court for a hearing to determine the reason T. D. W. and his father appeared at the adjudicatory hearing without counsel. “If it appears that [T. D. W. and his father were] unable to obtain counsel despite diligent efforts, then a new [adjudicatory hearing] is warranted. If, on the other hand, after this hearing, the court determines that [T. D. W. and his father’s] failure to obtain counsel was attributable to [their] own lack of diligence, then no new [adjudicatory hearing] is demanded [and the adjudication of delinquency and dispositional sentence may be reinstated]. After this hearing and the entry of an order reflecting the judge’s findings, [T. D. W] is free to pursue whatever further remedies may be available to him, including the right to appeal directly from the judge’s order on this issue.” Hasty v. State, 210 Ga. App. 722, 724-725 (1) (437 SE2d 638) (1993). See generally Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469) (1995).

The instant case differs from Smith v. State, 211 Ga. App. 567 (440 SE2d 44) (1993), rev’d, 264 Ga. 634 (452 SE2d 90) (1994), in which our Supreme Court reversed this Court’s reversal of Smith’s conviction for simple battery. First, in Smith the defendant was not sentenced to actual imprisonment, whereas in this case T. D. W. was sentenced to confinement. Secondly, in Smith, the non-indigent defendant clearly understood and wished to avoid the danger of self-representation, but was unable to retain counsel due to the loss of his job. In this case, there is no indication from the record as to the reason T. D. W. and his father appeared for the adjudicatory hearing unrepresented. Moreover, it is not clear from the record that after the petition was amended to include the aggravated assault charge, which was a designated felony, T. D. W. or either of his parents was warned of the consequences of an affirmative finding on the newly added charge. Compare In the Interest of W. M. F., 180 Ga. App. 397, 399 (3) (349 SE2d 265) (1986); see also In re B. M. H., 177 Ga. App. at 478. Our conclusion is supported by the post-hearing conversation in which T. D. W. and his father demonstrated that they were unaware of the ramifications of the aggravated assault charge.

Decided November 7, 1997.

Mary Evans-Battle, for appellant.

Tommy K. Floyd, Robert E. Keller, District Attorneys, Elizabeth N. Scarbrough, Assistant District Attorney, for appellee.

2. T. D. W. also argues that the pertinent proceedings were not recorded as mandated by OCGA § 15-11-28 (b) and that the State erred in failing to hold an adjudicatory hearing within 60 days of the filing of the petition, as required by OCGA § 15-11-26 (a). These enumerations are without merit. See generally Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 408 (229 SE2d 66) (1976).

Judgment vacated and case remanded.

Johnson and Blackburn, JJ., concur.

       This charge was later corrected to be reckless driving.

       The Court implicitly addressed the issue in In the Interest of T. S., 211 Ga. App. 46 (1) (438 SE2d 159) (1993).


text:
    A97A2461.
    GENERALI — U. S. BRANCH v. SOUTHEASTERN SECURITY INSURANCE COMPANY.
    (493 SE2d 731)
   Eldridge, Judge.

Appellant Generali — U. S. Branch (“Generali”) is an insurer which paid an uninsured motorist claim to its insured based upon a written notice by appellee Southeastern Security Insurance Company (“Southeastern”) to its insured denying coverage for misrepresentations in the application for insurance. Upon learning that Southeastern did have coverage, Generali sued to recover the sum paid on the uninsured motorist claim.

On March 13, 1995, Southeastern’s insured rear-ended Gener-ali’s insured. In a letter dated March 23, 1995, Southeastern gave written notice to its insured, Aloma M. Bryan; Henry M. Kellum, the insured’s attorney; and Melissa Wirdner, Graward General Insurance, the insured’s agent, that coverage for the time of the collision was denied and the policy canceled because of misrepresentations in the insurance policy application.

Generali made no request of Southeastern regarding verification of coverage and relied upon the letter to Southeastern’s insured and Southeastern’s duty to amend the information under OCGA § 33-3-28 (d). Generali paid the uninsured motorist benefits to its insured.

Generali sued Aloma M. Bryan under its subrogation claim and Southeastern on a direct action in negligence and fraud for failure to amend its original statement denying coverage after Southeastern’s discovery that the facts stated in its denial of coverage were inconsistent with coverage; Generali asserted that it had relied to its detriment on the notice by paying the uninsured motorist benefits when Southeastern had coverage. Southeastern timely answered. On March 21, 1997, Southeastern filed a motion for partial summary judgment, based upon the lack of a right of subrogation for an uninsured motorist personal injury claim by Generali. On April 15, 1997, Generali filed a voluntary dismissal without prejudice as to defendant Bryan in order to make such motion moot. In Generali’s response to the partial motion for summary judgment, filed the same day, it argued that the motion had been rendered moot by its dismissal of Bryan and that its direct action against Southeastern was based, not on subrogation but on negligence and fraud; it argued this position in the brief. On June 12, 1997, after hearing oral argument on June 9, the trial court granted summary judgment. Generali filed a timely notice of appeal.

1. The first, second, and fifth enumerations of error are that the trial court erred in granting summary judgment on theories of liability outside the scope of the motion for partial summary judgment, because such motion was made moot by the dismissal of Bryan. We do not agree.

The trial court can grant sua sponte summary judgment under Georgia law. Solon Automated Svcs. v. Corp. of Mercer Univ., 221 Ga. App. 856, 859 (3) (a) (473 SE2d 544) (1996). In fact, the trial court can grant summary judgment to the “non-moving party provided that the grant is proper in all other respects. [Cit.]” Golston v. Gari-gan, 245 Ga. 450, 451 (1) (265 SE2d 590) (1980); see also Eiberger v. West, 247 Ga. 767, 770 (281 SE2d 148) (1981); Rasmussen v. Nodvin, 174 Ga. App. 203, 204 (1) (329 SE2d 541) (1985); Wiggins v. C & S Nat. Bank, 173 Ga. App. 761 (328 SE2d 222) (1985); Massey v. Consolidated Equities Corp., 120 Ga. App. 165, 167 (1) (169 SE2d 672) (1969). “Accordingly, we conclude that, while in most cases it is better practice to await a motion for summary judgment before entering it for a party, it was not erroneous under the circumstances of this case, where the issues were the same as those involved in the movant’s motion, hence the opposing parties had notice thereof, and where the nonmovant consented to the entry of summary judgment in his favor.” Cruce v. Randall, 245 Ga. 669, 671 (266 SE2d 486) (1980). “If the record demands such a judgment, it would be proper.” DeMudd v. Atlanta Metro Taxi-Cab Group, 172 Ga. App. 626, 627 (323 SE2d 910) (1984); see also Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 170 (1) (390 SE2d 257) (1990).

Thus, the trial court can grant summary judgment on any or all theories of liability, if justified by the record, although the movant asked only for a partial motion for summary judgment on less than all the theories of liability. The trial court had the inherent power to administer cases before the court and to deny at the hearing the oral motion for dismissal of the motion for partial summary judgment. Counsel intentionally rendered moot the pending motion by the voluntary dismissal without prejudice of the claim against Bryan in order to avoid the grant of partial summary judgment. At the scheduled hearing, the trial court then proceeded to decide, sua sponte, the remaining issues of liability as a matter of judicial economy on summary judgment.

The record fails to show that plaintiff made a motion in writing or gave prior notice, either oral or written, for the trial court to rule the partial motion for summary judgment moot prior to the hearing date and to remove the case from the motions calendar as moot. Plaintiff’s counsel should have done this and had 51 days within which to do so prior to the hearing. See USCR 6.

“However, care should, of course, be taken by the trial court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law. The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” (Citations and punctuation omitted.) Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., supra at 170. In this case, the plaintiff had such notice and opportunity, because the plaintiff raised in its brief in opposition to the summary judgment the theories of direct action that the trial court ruled upon.

Generali sought to avoid the motion for partial summary judgment as to the subrogation claim by dismissing its claim against the insured tortfeasor Bryan in order to make its claim against Southeastern moot; at the same time, Generali continued to assert its theories of direct action in the responsive brief in opposition to the motion. The hearing on the motion for partial summary judgment came on June 9, 1997, some 51 days following Generali’s response asserting its right to a direct action against Southeastern. The grant of the motion was not entered until June 12, 1997. Had plaintiff been without notice and truly surprised at the hearing by the issues raised, plaintiff could have requested to submit evidence after the hearing and prior to the ruling to perfect the record. Rasmussen v. Nodvin, supra at 204.

The record clearly shows that Generali had notice and ample opportunity to present its response to the motion prior to the hearing, as well as prior to the ruling. The issues presented in the motion went to the liability of Southeastern to Generali on subrogation, but Generali in its response asserted that the subrogation claim was moot and that it had rights of direct action. The trial court did not commit procedural error under the facts and circumstances of this case in treating a partial motion for summary judgment as a motion for summary judgment on all theories of liability and in refusing to deny the motion for partial summary judgment as moot.

2. The third enumeration of error is that the trial court erred in granting summary judgment. We do not agree.

(a) OCGA § 33-3-28 (d) creates no liability of an insurer to a claimant for failure to timely amend any previously furnished information from the insurer to the claimant, because failure to comply with the statute comes within the conduct subject to sanctions by the Insurance Commissioner as the exclusive regulatory remedy. OCGA §§ 33-3-19; 33-3-20. In passing Ga. L. 1989, p. 676, § 1, the General Assembly created OCGA § 33-3-28 as a regulatory statute. The caption, which identified and described the purpose of the act, states: “To amend Chapter 3 of Title 33 of the Official Code of Georgia Annotated, relating to authorization and general requirements for transactions of insurance, so as to provide that insurers who provide liability or casualty insurance coverage and the insured shall upon request of a claimant provide certain information to such claimant; to provide for related matters; to repeal conflicting laws; and for other purposes.” Thus, the legislative intent was directory only and was not intended to create any cause of action in a claimant against an insurer for non-compliance.

(b) The alleged violation of OCGA § 33-3-28 (d) did not give rise to an action based on negligence per se. “A statute may create a duty recognized by law requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks, the breach of which constitutes what is sometimes called ‘negligence.’ Prosser & Keeton on Torts, 5th ed., § 30 (1984).” Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 733 (333 SE2d 829) (1985). “In determining whether the violation of a statute or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. [Cits.]” Potts v. Fidelity Fruit &c. Co., 165 Ga. App. 546, 547 (301 SE2d 903) (1983); see also Central Anesthesia Assoc. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984), aff’d, 254 Ga. 728. OCGA § 33-3-28 was not passed to guard against a “risk” or “harm,” and an insurer has no duty to protect a claimant against any specific harm; the act is directory to the insurers to assist claimants in gathering information, only.

(c) Southeastern, in making the representation to its insured and others, did not intend to induce reliance within the professional standard set forth in Restatement of Torts 2d, § 552 (1977), and such reliance was not reasonably foreseeable, so that Generali did not have an action for negligent misrepresentation as a third party. See Robert &c. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983); see also Badische Corp. v. Caylor, 257 Ga. 131, 132 (356 SE2d 198) (1987); First Nat. Bank of Newton County v. Sparkmon, 212 Ga. App. 558, 559 (442 SE2d 804) (1994); Southeast Consultants v. O'Pry, 199 Ga. App. 125 (404 SE2d 299) (1991). Furthermore, no misrepresentation was in fact made; the alleged basis for the tort action was the failure to later inform interested parties of a change in position by Southeastern. Such facts and circumstances fall outside the ambit of Robert &c. Assoc. v. Rhodes-Haverty Partnership, supra at 681-682.

(d) There was no evidence in the record before the trial court that the notice to Southeastern’s insured was a material misrepresentation of fact, was made to induce reliance by Generali, or was made with the intent to mislead Generali. To the contrary, Generali contends that Southeastern’s act of fraud was in not timely correcting its prior notice stating that there was no coverage, in order to reflect that there was coverage. However, the statement was correct when made, so that failure to correct was not actionable fraud, deceit, or concealment as a matter of law. Further, Generali produced no evidence that it exercised reasonable diligence to protect itself from harm; Generali had it within its own power to directly inquire of Southeastern regarding coverage prior to making any uninsured motorist claim payment. Generali is unable to show in the record any evidence that creates a disputed issue of fact as to one or more essential elements of fraud on the part of Southeastern or the exercise of reasonable diligence on the part of Generali. See Eckerd’s Columbia v. Moore, 155 Ga. App. 4 (270 SE2d 249) (1980); Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127 (267 SE2d 635) (1980), rev’d on other grounds, 246 Ga. 411 (271 SE2d 811) (1980); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (16 SE2d 176) (1941).

(e) Generali lacked standing to bring any direct action against Southeastern in tort, because it was not directly harmed by any tor-tious act or omission by Southeastern and only indirectly suffered a loss. The right to bring a personal injury action, even for fraud, cannot be assigned or subrogated, except by statute. OCGA § 44-12-24; Allen v. Macon, Dublin &c. R. Co., 107 Ga. 838, 845-846 (3) (33 SE 696) (1899); see also Hayslip v. Speed Check Co., 214 Ga. 479, 482 (105 SE2d 455) (1958); Morehead v. Ayers, 136 Ga. 488 (71 SE 798) (1911); Southern R. Co. v. Malone Freight Lines, 174 Ga. App. 405, 409 (1) (330 SE2d 371) (1985); American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 835 (278 SE2d 719) (1981); James v. Emmco Ins. Co., 71 Ga. App. 196, 200 (30 SE2d 361) (1944). The cancellation notice went to Southeastern’s insured and to counsel for Generali’s insured; therefore, if any cause of action could arise, then it would be vested in either of these insured persons, who would have received a personal injury and not an injury to property that could not accrue to the benefit of Generali.

Decided November 7, 1997.

Steven E. Conner, Ronald W. Parnell, for appellant.

Hertz & Link, Houston D. Smith III, for appellee.

Thus, Generali has failed to create a material issue of fact as to the essential elements of any of his theories of direct action. Southeastern as a matter of law was entitled to summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

3. The issues of damages raised under enumerations of error 3 and 4 are controlled by Division 2, which finds that Southeastern was entitled to summary judgment as a matter of law.

Judgment affirmed.

Birdsong, R J., and Ruffin, J., concur.


author: Beasley, Judge. Smith, Judge,

text:
    A97A1651.
    MAYER v. WYLIE.
    (494 SE2d 60)
   Beasley, Judge.

Thongkham Mayer sued Rebecca Joy Wylie in Douglas County for damages caused by a car Wylie was driving. Wylie was granted summary judgment on the ground that judgment in a previous action between Mayer and the car insurer was res judicata. That doctrine did not apply because neither the subject matter nor the parties in the previous action were identical to those in the present action.

1. Mayer claims Wylie’s failure to raise res judicata as a defense in her answer waived the issue. See Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481 (3) (428 SE2d 381) (1993) (res judicata, an affirmative defense, waived if not asserted in timely-filed responsive pleading). “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised ... by motion for summary judgment there is no waiver.” (Citations and punctuation omitted.) McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (a) (341 SE2d 294) (1986).

2. “The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” (Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995). The defendant bears the burden of proving this defense. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (1) (458 SE2d 826) (1995).

Wylie submitted with her motion for summary judgment a statement of material facts (Uniform Superior Court Rule 6.5) setting forth that Georgia Farm Bureau Mutual Insurance Company had previously sued Mayer in DeKalb County to recover payments made to Wylie’s husband as owner of the car for damages arising out of the collision with Mayer’s car. Wylie did not state whether Georgia Farm alleged Mayer was negligent. Wylie did state Mayer had filed a counterclaim for damages to his car (again, the basis is unclear), which the DeKalb court dismissed on technical grounds. A dismissal on technical grounds cannot be res judicata. OCGA § 9-12-42; Woelper v. Piedmont Cotton Mills, 226 Ga. App. 337, 338 (1) (487 SE2d 5) (1997). Wylie also claimed the jury had rendered a verdict in Georgia Farm’s favor on the subrogation claim, which Wylie interprets as a conclusive finding she was not negligent. As proof, Wylie attached to her statement of material facts an uncertified copy of the single-sentence judgment on the verdict. She did not submit any sworn testimony to substantiate her allegations, nor did she submit any pleadings or transcripts from the DeKalb action.

“The identity between the cause of action or issues raised in the present suit and those adjudicated in the prior action cannot be uncertain, indefinite, or based upon inferences.” Glen Oak, Inc. v. Henderson, 258 Ga. 455, 458 (2) (a) (369 SE2d 736) (1988). The defense of res judicata “must be sustained by ‘clear proof.’ [Cit.]” Id. at 458, fn. 4. The defendant must introduce “those parts of the record of the prior proceeding, duly certified, which are necessary to prove the defense.” Boozer v. Higdon, 252 Ga. 276, 277 (1) (313 SE2d 100) (1984); see Waggaman, supra, 265 Ga. at 566 (3). Uncertified copies are insufficient. Roberts v. Porter, Davis &c., 193 Ga. App. 898, 901 (2) (389 SE2d 361) (1989). The record portions submitted must reveal which issues involved in the present suit were put in issue or might have been put in issue in the previous litigation. OCGA § 9-12-40; see Roberts, supra.

Wylie’s proof fails on three grounds. First, the allegations in her statement of material facts are unsworn and the copy of the judgment uncertified. Even though Mayer failed to challenge the contentions set forth in her statement, they “are not evidence for purposes of summary judgment, nor does any lack of response to such contentions amount to an admission of fact.” Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 275 (421 SE2d 780) (1992).

Second, even if the trial court could have accepted Wylie’s description of the prior action and its proceedings as proper evidence, the description is lacking in needed detail. Wylie must show the subject matter or cause of action in each suit is identical. Roberts, supra, 193 Ga. App. at 900 (1); see Lawson v. Watkins, 261 Ga. 147, 148-149 (1) (401 SE2d 719) (1991). Both parties agree that the issue in the DeKalb suit was whether Mayer should compensate Georgia Farm under the subrogation laws for money it paid to its insured arising out of the collision. But the basis for that claim is not specified. One might infer that the issue was whether Mayer was negligent, but this does not address whether Wylie was negligent. The jury verdict does not exclude the possibility that both Wylie and Mayer were negligent, and that Georgia Farm chose to sue only one of the tortfeasors. Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 176 (1) (358 SE2d 468) (1987) (plaintiff may choose to sue and recover fully from only one of the tortfeasors). In fact, the other tortfeasor would have been Wylie, the wife of the insured, and interspousal immunity would have prevented Georgia Farm as subrogee from recovering against Wylie. See OCGA § 19-3-8; New v. Hubbard, 206 Ga. App. 679 (426 SE2d 379) (1992).

Thus, even if the jury verdict were construed as finding Mayer negligent and were binding on this case, Mayer would be free to sue Wylie under a comparative negligence theory for the damages resulting to his car. Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997) (plaintiff whose negligence is less than defendant’s may recover diminished damages). Because the causes of action and issues are different, res judicata does not apply. See Allen v. King Plow Co., 227 Ga. App. 795 (490 SE2d 457) (1997).

The third reason Wylie’s proof fails is that the parties or their privies are not identical. Georgia Farm as subrogee of Wylie’s husband was a party to the DeKalb action, not Wylie. And Rebecca Wylie was not Georgia Farm’s privy. Privies are “ ‘defined as all persons who are represented by parties and claim under them, the term privity denoting a mutual or successive relationship to the same rights of property. . . .’ [Cits.]” Roberts, supra, 193 Ga. App. at 901. Wylie claims that her husband owned the car she was driving, and that he as the named insured under the policy with Georgia Farm received monies for damages to his vehicle from Georgia Farm. She does not assert any type of a relationship between herself and Georgia Farm, nor does she assert any right to the money paid to her husband for damages to his property. Georgia Farm as subrogee of Wylie’s husband, and therefore his privy, sought to recover for subrogation damages from Mayer. Wylie had no claim or interest in those monies, whether mutual or successive. See King Plow, supra at 797 (privy has such identity of interest that privy represented same legal right).

The trial court erred in granting summary judgment.

Judgment reversed.

McMurray, P. J, concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree with the majority that the trial court erred in granting summary judgment in favor of Wylie for the first reason stated: that Wylie failed to sustain her defense of res judicata by the “clear proof” required. But the additional grounds for reversal are dicta and unnecessary to the decision as presented. Of particular concern is the statement that there is no identity of party or privity between an insured and the subrogee insurer. Traditionally, a subrogee “stands in the shoes” of the insured and can pursue any cause of action assigned to it. “[Sjubrogation is a remedy recognized both in law and equity as a path of recovery whereby one is placed or substituted in the legal position of another. . . . The clear meaning of the language defining subrogation is that the subrogee is placed in the same position as the subrogor which includes the disabilities as well as the rights.” Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 308 (335 SE2d 681) (1985). Compare Miller v. Charles, 211 Ga. App. 386, 387 (1) (439 SE2d 88) (1993) (privity in subrogation of right to child support to DHR does not include child).

The majority draws a distinction between Wylie and her husband, another insured who received the earlier payments. But such a ruling still could create confusion in any case in which an incident such as this gives rise to multiple actions. A party to a subsequent suit growing out of the same incident as a subrogation claim already litigated or settled to judgment could attempt to reopen matters decided in that judgment by claiming that a different insured under the policy suffered the actual damage or accepted payment. We should not disturb this well-established area of law or decide an issue with such potential for far-reaching consequences until it is squarely presented.

Decided November 10, 1997.

Herman Pierre, Jr., for appellant.

Cobb & Walton, Bobby L. Cobb, for appellee.

       I note that the record contains no copy of the insurance policy in question, and we therefore are unable to determine with any certainty the exact status of Wylie or her husband under the policy, whether policyholder, named insured, or additional insured.


author: Andrews, Chief Judge.

text:
    A97A1699.
    SINGLETON et al. v. PHILLIPS et al.
    (494 SE2d 66)
   Andrews, Chief Judge.

Major Donna Phillips, an Army dentist, was involved in an automobile collision with Sebrina Singleton. Phillips sued Singleton for personal injury, and Phillips’ husband claimed loss of consortium. The plaintiffs also served their underinsured motorist carrier, United Services Automobile Association (USAA). Although USAA originally answered the suit in its own name and participated in discovery, the insurer later withdrew its answer. Despite its withdrawal, the trial court made USAA a party to the case and allowed the jury to know of USAA’s status as an additional defendant. The jury returned a verdict for the plaintiffs, awarding Major Phillips $2,817 in special damages and $80,000 in general damages and awarding her husband $17,183 for loss of consortium. We find the trial court erred by requiring USAA to remain a named party defendant and by failing to grant the defendants’ motion for partial directed verdict on Major Phillips’ claim that the collision prevented her promotion to lieutenant colonel.

1. Singleton and USAA claim the trial court erred by allowing the jury to consider whether Major Phillips’ injuries prevented her promotion to the rank of lieutenant colonel and consequent salary increase. We agree that the trial court should have granted the defendants a partial directed verdict on this claim.

“A trial court may direct a verdict in a party’s favor only if 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. [Cit.] We view that evidence in a light most favorable to [Major Phillips]. [Cit.]” (Punctuation omitted.) Niles v. Bd. of Regents &c. of Ga., 222 Ga. App. 59 (473 SE2d 173) (1996). Whether this “deprivation of promotion” claim is characterized as a claim for past lost wages, future lost wages, or diminution of earning capacity, Major Phillips was required to produce some evidence from which the jury could determine the collision caused this damage. “Lost wages and earnings are recoverable where the evidence shows the amount of the loss with reasonable certainty and the evidence permits the jury to determine the amount of the loss without speculation or guesswork. [Cit.]” Quiktrip Corp. v. Childs, 220 Ga. App. 463, 467 (5) (469 SE2d 763) (1996). A “loss of earning capacity” claim requires evidence of “the degree to which the disability or loss . . . may reasonably affect [Phillips’] future income.” Myrick v. Stephanos, 220 Ga. App. 520, 522 (2) (472 SE2d 431) (1996). Loss of future earnings, likewise, “is available where there is proof of loss of definite earnings that would have been received in the future but for an injury. . . .” Id. at 521.

In support of this claim, Phillips presented the testimony of her commanding officer, a colonel in the Army’s dental corps. The colonel stated that dental officers were considered for promotion every six years, and that receiving “excellent proficiency reports” and participating in certain courses and activities would increase an officer’s chances of promotion. One such “ticket punch” towards promotion, he testified, was the completion of a residency program. He also opined that the failure to pass physical fitness tests might affect an officer’s rating. Major Phillips testified that her injuries from the accident prevented her from participating in physical fitness training and that a scheduled surgery prevented her from enrolling in a residency program to which she had been accepted. These facts, she argued, allowed the jury to determine that the accident caused her to be denied the promotion and allowed the jury to award her resulting lost earnings. The trial court agreed.

The trial court erred because the witnesses’ theories as to why Major Phillips did not receive a promotion were purely speculative. Phillips continued to work full time as a dentist after the accident. Her commanding officer testified that promotions are made by a selection board whose members are sworn to secrecy, and he did not know the exact criteria on which that board relied. While these “ticket punches” were important steps on the path to promotion, the commanding officer agreed that officers who met those requirements were not always promoted. He further admitted that his opinions as to why Phillips was not promoted were “pure speculation” and his “guess.” It is clear from the commanding officer’s testimony that Phillips’ alleged inability to complete a residency would be but one of many factors affecting her eligibility for promotion. While Major Phillips stated that “someone” on the promotion board told her why she was not promoted, the record shows her knowledge constituted nothing more than hearsay without probative value. See Roger Budd Chevrolet Co. v. First State Bank &c. Co., 145 Ga. App. 167, 168 (1) (243 SE2d 332) (1978). Likewise, her theories and those of her husband as to why she was not promoted amount to nothing more than speculation, as neither of the Phillips was made privy to the board’s secret reasons for denying the promotion. Given the lack of testimony showing a causal connection between Phillips’ injury and her failure to obtain a promotion, the trial court should not have allowed the jury to consider this claim. “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Citations and punctuation omitted.) Niles, supra at 61. This evidence enabled the jury to do nothing more than guess.

2. The trial court further erred when it granted the Phillips’ motion to name USAA as a party defendant. When originally served in July 1994, USAA answered the suit in its own name, as allowed by OCGA § 33-7-11 (d), and thereby became a party to the case. See generally Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803, 804 (395 SE2d 282) (1990). Over the next months, it appears the insurer actively participated in discovery. In November 1995, however, USAA expressly withdrew its answer. When the plaintiffs moved to force USAA into the status of party defendant, the insurer responded that it had withdrawn its answer after determining no coverage questions existed. In February 1996, the trial court ordered USAA added as a party defendant, and the insurer’s presence in the case was made known to the jury at trial.

The trial court erred when it held that once USAA made its election to participate as a party, the insurer was required to remain a named party defendant through the trial of this case. OCGA § 33-7-11 (d) allows the uninsured or underinsured motorist carrier to elect to become a party to the case by filing an answer in its own name. Alternately, “[t]he insurer may elect to plead only in the name of the alleged tortfeasor, thereby obtaining an adjudication of tort liability without the potentially prejudicial injection into the case of the presence of insurance coverage.” Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980). It may also choose not to file any pleadings. See Hulsey, supra. The statute shows the choice to participate or not to participate is left to the insurer, but nothing in the statute prevents the insurer from changing its position during the course of litigation. Therefore, “[w]e see no reason ... to require an uninsured [or underinsured] motorist carrier to continue to proceed in its own name simply because it elected to do so initially.” Keenan v. Hill, 190 Ga. App. 108, 109 (1) (378 SE2d 344) (1989). In Hill v. Dem-ery, 219 Ga. App. 225, 228 (464 SE2d 831) (1995), a case that is physical precedent only, this Court found that even if an uninsured motorist carrier had become a party to litigation, once the insurer determined no contractual issues existed, it could elect to withdraw its answer prior to trial. The Demery analysis applies here.

Decided November 10, 1997

Ellis, Painter, Ratterree & Bart, Sarah B. Akins, for appellants.

Savage & Turner, Robert B. Turner, Robert S. Kraeuter, Howard E. Alls & Associates, Howard E. Alls, for appellees.

The trial court did not find, and the plaintiffs do not argue, that USAA’s decision to withdraw prejudiced the Phillips in any way. Keeping USAA in the case against its will, however, tended to prejudice the jury through the mention of insurance. See Moss, supra. Although the trial court reasons that “[n]o other Defendant in a civil case can unilaterally withdraw from an action,” neither can any other defendant “elect” not to participate in litigation without risking a default judgment. The legislature has given that choice to uninsured motorist carriers, and we see no reason here to hold that the insurer may not change its mind, especially when doing so does not prejudice the plaintiff.

3. To the extent our opinion does not address Singleton’s remaining enumerations, those enumerations are rendered moot by our decision.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       The insurer is also referred to in the record as “United States Automobile Association.”


text:
    A97A1706.
    DICKMAN et al. v. SOUTH CITY MANAGEMENT, INC.
    (494 SE2d 64)
   Judge Harold R. Banke.

Elizabeth Dickman and Andrew Dickman appeal the summary judgment awarded to South City Management, Inc. (“South City”) in their trip and fall case.

Viewed in the light most favorable to the Dickmans, the evidence was as follows. On an autumn evening, Elizabeth Dickman dined with her mother and some friends at South City Kitchen, owned and operated by South City. After dinner, Dickman started to leave the restaurant using the same staircase on which she had entered. According to Dickman’s testimony, as she began to use the staircase, it was “very, very dark,” and “nothing was visible.” As Dickman, then six months pregnant, started down the steps, her left high heel allegedly became caught or pushed through a brick or loose mortar. As a result, Dickman twisted her foot and fell, breaking her ankle. Dick-man attributed her fall to the darkness, the alleged missing mortar, and the absence of a handrail. However, it is undisputed that the stairs were equipped with a handrail and built with a nonskid surface. Dickman admitted that she elected to walk down the side opposite from the handrail. Dickman conceded that even if the lighting had been better, because she was not looking down, her heel would still have gotten caught.

South City offered evidence that it performed regular inspections of its premises. Chris Goss, the company president, testified that when he had conducted an operations check two days before the incident, he did not find any defect on the stairs. According to Goss, the steps were constructed in compliance with applicable code provisions and there had been no prior incident of a staircase fall. Under South City’s policies and procedures, employees were required to report any unsafe condition to the management. Goss attested that he did not observe any loose mortar before Dickman fell. The Dickmans presented no evidence that the mortar was loose before the heel of Mrs. Dickman’s shoe pushed through it. The Dickmans contest the summary judgment granted to South City. Held:

The Dickmans contend that the existence of material issues of disputed fact foreclosed summary judgment. They claim that a jury must resolve whether the condition of the steps constituted a danger or defect and whether South City should have known about the hazard. We disagree.

It is axiomatic that “[i]n everyday life, persons are required to negotiate the floors, steps and doorways of buildings.” Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 124 (1) (444 SE2d 341) (1994). Proof of a fall, without more, does not give rise to liability. Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). The true ground of liability is superior knowledge. There must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee. Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (2) (435 SE2d 764) (1993); Steinberger, 213 Ga. App. at 123 (1).

To establish South City’s negligence, the Dickmans had to show: (1) that South City had actual or constructive knowledge of the alleged defect, and (2) that Mrs. Dickman was without knowledge of the defect or for some reason attributable to South City was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Decided November 10, 1997

Johnson, Kayne & Penna, Christopher E. Penna, Derek A. Mendicino, for appellants.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, Monique R. Walker, for appellee.

To avoid summary judgment the Dickmans could not rest on the pleadings but had the burden to come forward with specific evidence that South City’s knowledge of the alleged peril was superior. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994); Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). This they failed to do. The Dickmans offered no evidence that South City had superior knowledge of the allegedly “dangerous condition.” It is undisputed that South City regularly inspected the stairs at issue and that no other person traversing the same stairs fell before or after this incident.

Further, when a person has successfully negotiated an allegedly dangerous condition on a previous occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom. Souder, 210 Ga. App. at 292 (1); Harpe v. Shoney’s, Inc., 203 Ga. App. 592, 593 (1) (417 SE2d 184) (1992); Rossano v. American Legion Post 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Even assuming arguendo that the step was defective, Dickman’s admission that she traversed the same area using the same staircase shortly before she fell is fatal to her claim as she cannot show South City’s superior knowledge. Steele v. Rosehaven Chapel, 223 Ga. App. 523, 524 (478 SE2d 596) (1996). Having successfully pierced an essential element of the Dickmans’ case, South City was entitled to summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991); OCGA § 9-11-56 (c).

Judgment affirmed.

Smith, J., concurs. McMurray, P. J., concurs in the judgment only.

       Andrew Dickman brought a loss of consortium claim.


text:
    A97A0979.
    CHICAGO INSURANCE COMPANY v. CENTRAL MUTUAL INSURANCE COMPANY.
    (494 SE2d 1)
   Andrews, Chief Judge.

Chicago Insurance Company (Chicago) appeals from the trial court’s order granting summary judgment to Central Mutual Insurance Company (Central Mutual) on Central Mutual’s claim for reimbursement for expenses incurred in defending the DeKalb Board of Realtors (DeKalb Board) in a suit alleging violations of the Sherman Anti-Trust Act and Fair Housing Act. Chicago argues on appeal that the trial court erred in finding it waived compliance with a provision in its policy with the National Association of Realtors (NAR) stating that it would provide coverage to the NAR’s member boards, of which the DeKalb Board was one, only if they were in compliance with all of the policies of the NAR. We agree and reverse the judgment of the trial court.

Chicago and Central Mutual both issued insurance policies which covered the DeKalb Board and its wholly owned subsidiary, the Metropolitan Multi-List, Inc. d/b/a Metro Listing Service (MML). Central Mutual issued two policies of insurance to the DeKalb Board and the MML, a Commercial Lines Policy and a Centralized Commercial Excess Liability Policy. Chicago’s policy was issued to the NAR, and the DeKalb Board and MML were covered under this policy as additional insureds.

Under the Chicago policy in effect from June 1, 1988 through June 1, 1989, Chicago agreed to defend and to pay claims expenses for any suits alleging anti-trust or fair housing violations. The policy also provided that the duty to pay claims expenses was conditioned upon the additional insureds’ compliance with the following provisions:

“Provided always that the coverage provided by this policy shall only apply to those insureds which:

A. Maintain their Governing Documents in full compliance with the:

1. Constitution and Bylaws of the Named Insured;

2. Policies adopted by the Board of Directors of the Named Insured; and

B. Adhere to and follow in their day-to-day activities the:

1. Constitution and Bylaws of the Named Insured;

2. Policies adopted by the Board of Directors of the Named Insured. . . .”

The NAR offered this insurance under the Chicago policy to its member boards as a means of encouraging their compliance with the NAR’s constitution, by-laws and policies. The NAR sent out a form letter to each board every year stating that only those boards whose governing documents conformed to the standards and policies of the NAR would be afforded insurance coverage under this policy.

In 1985, the NAR adopted a policy of requiring members to accept exclusive agency listings in their multiple listings service. In 1987, an NAR review of the DeKalb Board’s governing documents showed the DeKalb Board was not in compliance with this exclusive agency listing policy.

Accordingly, on July 7, 1987, Michelle Ribant of the NAR wrote the Executive Vice-President of the DeKalb Board, informing her of the DeKalb Board’s noncompliance with the exclusive agency listing policy. Shortly thereafter, when Laurene Janik of the NAR called Carolyn Ebert of the DeKalb Board to discuss this noncompliance, Ms. Ebert stated she was aware of the noncompliance and had brought it to the attention of the Board of Directors. Nevertheless, she said the Board of Directors voted on two occasions not to adopt this policy of the NAR and rejected any proposal to accept exclusive agency listings into the MML.

On December 22, 1988, Fletcher Thompson and the Empire Real Estate Board sued the DeKalb Board and the MML, alleging antitrust and Fair Housing Act violations. Thompson v. Metropolitan Multi-List, 934 F2d 1566, 1570 (11th Cir. 1991). The DeKalb Board notified Chicago of the suit, requesting coverage under the “Claims Expense” provision in its policy under which Chicago was obligated to pay $75,000 per claim per association.

Chicago referred the claim to the NAR for a determination as to whether the DeKalb Board and the MML were in compliance with the policies of the NAR. The NAR determined that the DeKalb Board and MML were not in compliance with the policy mandating that member boards accept exclusive agency listings into their multiple listing service. Because the DeKalb Board was not in compliance with this policy, Chicago denied coverage for the Thompson suit.

After being denied coverage by Chicago, the DeKalb Board made a claim under its insurance policies with Central Mutual and Central Mutual defended the claim subject to a reservation of rights. Central Mutual incurred attorney fees on behalf of the DeKalb Board and MML in the amount of $94,475 before gaining a ruling in its declaratory judgment action that it had no obligation to provide a defense under the policies issued to the DeKalb Board.

Central Mutual then filed the instant suit, seeking indemnification for expenses incurred on behalf of the DeKalb Board and the MML. Central Mutual alleged Chicago breached an agreement to pay a portion of the attorney fees incurred in defending the Thompson suit and also that Chicago breached its contract with its insured and Central Mutual was entitled to sue to enforce this contract as a third party beneficiary.

In ruling on both parties’ motions for summary judgment, the trial court found that Central Mutual had a right to enforce the Chicago policy and also that, although the DeKalb Board and MML had violated a condition precedent to coverage under the policy, Chicago, through the NAR, had waived compliance with this condition. This appeal followed.

1. Chicago correctly denied coverage to the DeKalb Board and the MML. It is undisputed that the DeKalb Board and the MML were not in compliance with one of the policies of the NAR, that of accepting exclusive agency listings. It is also undisputed that compliance with all of the policies of the NAR was a condition precedent to being afforded coverage under the Chicago policy.

The trial court found that Chicago had waived coverage through the NAR because when the policy was renewed on June 1, 1988, the NAR knew the DeKalb Board and MML were not in compliance with the exclusive agency listing requirement. The trial court relied on Boston Ins. Co. v. Barnes, 120 Ga. App. 585 (171 SE2d 626) (1969), in holding that Chicago should have refused to issue the policy since it knew the DeKalb Board could not comply with a condition precedent to coverage. Further, the trial court stated that, having once issued the policy with this knowledge, Chicago was estopped from denying coverage and was deemed to have waived the condition precedent. The court found that Chicago’s claim that it had no knowledge of whether the DeKalb Board was in compliance with the policies of the NAR was meritless, as the NAR was Chicago’s agent in this matter and it had knowledge, at the time the policy was issued, that the DeKalb Board was not in compliance with all of its policies.

But, Barnes is distinguishable from the instant case. In Barnes, we found the insurance company was estopped from relying on a provision in the policy denying coverage if the property had been vacant more than 60 days before the fire. Barnes, supra at 592. This holding was based on the following facts: The authorized agent was “(1) aware of the unoccupancy at the time the policy was written in the beginning, and again at the time it was renewed, and knew it was not going to be occupied as it was being remodeled, (2) the policies remained in his possession and the provisions thereof were outside the knowledge of the insured, (3) he had advised the insured that he was fully covered, and (4) he made the statement in his deposition that the failure to obtain a vacancy permit was his oversight. . . .” Id. Here, the facts are distinguishable in that the NAR notified the DeKalb Board that it was not in compliance with all of its policies and the DeKalb Board was aware that they must bring their procedures into compliance or be denied coverage.

The instant case is similar to a case distinguished by Barnes, Fire &c. Ins. Co. v. Fields, 212 Ga. 814 (96 SE2d 502) (1957). In Fields, the policy in question also contained a condition restricting coverage if the building was vacant more than 60 days. Likewise, the agent knew the premises were vacant at the time of renewal and also knew when the premium was paid that the premises had been vacant for more than 60 days. The agent also told the insureds they were covered and “not to worry about it.” Id. at 815. But, unlike Barnes, the facts did not show the agent had possession of the policy when he made these representations to the insured and the insureds were aware of the vacancy condition in the policy. Therefore, “the insureds were bound to know the rights of the insurer.” Fields, supra at 815. The court found “the knowledge of the agent as to vacancy of the premises, and his oral representations to the insureds that they were covered, did not estop the insurer from asserting a breach of the condition in the policy as to occupancy of the premises, nor would the receipt of the premiums by its agent with knowledge that the premises had been vacant for more than sixty consecutive days, and the retention of such premiums by the insurer, estop it from asserting its defense that the provision of the policy had not been waived in writing by it.” Fields, supra at 815.

Accordingly, even assuming for the purpose of argument that Central Mutual can show the NAR was acting as Chicago’s agent, the instant case falls within the facts as set out in Fields, supra. It is undisputed that the member boards were informed that compliance with NAR policies was a condition precedent to coverage under the policy issued by Chicago and it is also undisputed that the DeKalb Board knew of the NAR’s policy requiring the acceptance of exclusive agency listing agreements but chose not to comply with it, at least up until the time the Thompson suit was filed. Thus, as the court stated in Fields, the insured in this case was “bound to know the rights of the insurer.” Fields, supra at 815.

Therefore, we find that Chicago did not, by issuing the policy and accepting payment of the premium, waive the condition precedent requiring the DeKalb Board to be in compliance with the policies of the NAR. The trial court erred in granting Central Mutual’s motion for summary judgment on this issue.

2. In light of our holding in Division 1, we need not address the remaining enumeration of error.

Judgment reversed.

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

On Motion for Reconsideration.

Central Mutual filed a Motion for Reconsideration contending that Fields, relied upon by this Court in the holding above, has been disregarded in later Supreme Court decisions such as Christian v. Allstate Ins. Co., 239 Ga. 850 (239 SE2d 328) (1977) and Ga. Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176 (249 SE2d 588) (1978). These cases are not on point.

In Wall, the facts showed the insured was unaware that the endorsement did not provide coverage for ice and snow damage because he did not read the endorsement. The insured relied instead on the insurance agent’s representations that the endorsement did provide coverage for snow and ice damage. Wall, supra at 178. The court’s holding turned on whether the failure to discover a conflict in the terms of an oral contract as to what a policy is to contain and what it actually did contain was a jury issue. Accordingly, Wall is not applicable in this case.

In Christian, the insured, a family-owned corporation, informed the agent that some of the automobiles to be insured were titled in the name of individual family members and were sometimes driven for personal use. In spite of this, the insurance agent prepared a policy identifying the vehicles to be insured as owned automobiles of the company and providing that non-company owned automobiles would be provided coverage only when being driven on company business. The court does not state whether or not the insured was aware of the non-coverage; however, it held that, if the insurance company, with knowledge that some of the automobiles were non-company owned and also were driven for personal use, still collects premiums on each of these automobiles with this knowledge, then it is estopped from denying coverage on a vehicle as a non-owned vehicle. Christian, supra at 852-853. Again, that is not the case here. There is no insurance agent writing a policy and ignoring the requests of the insured.

In our original opinion we did not discuss the question of agency as ruled on by the trial court. However, in the interest of clarity, we now decide it and find that the NAR, as the named insured who paid the premium, cannot also be the agent of the insurance company. While it is clear that Chicago relied on the NAR to furnish information as to whether coverage would be denied additional insureds for failure to follow NAR policies, this was a condition precedent to coverage and one which only the NAR could determine. Accordingly, the NAR was required to furnish this information. Further, this was a determination that could be made only at the time of the loss because it was possible for member boards to come in and out of compliance with NAR procedures each time these boards voted to change their by-laws.

Decided October 2, 1997

Reconsideration denied November 12, 1997.

Gorby & Reeves, Michael J. Gorby, Blakely H. Frye, for appellant.

Long, Weinberg, Ansley & Wheeler, John C. Bonnie, J. Kenneth Moorman, for appellee.

The purpose behind the application of the principles of waiver or estoppel against an insurance company is to prevent the insurer from accepting payment for coverage which it knows it will deny. Brown v. Globe &c. Fire Ins. Co., 161 Ga. 849, 853 (133 SE 260) (1926). The NAR cannot be, simultaneously, an agent of the company accepting payment for a policy it does not intend to honor and the named insured paying for that same policy.

Motion for reconsideration denied.

       An exclusive agency listing is one in which the seller reserves the right to sell the property himself and not pay a commission to the listing agent.

       This suit arose as a result of a policy of the DeKalb Board restricting the use of its multiple listing service to member realtors. For years, African-Americans were not allowed to become members of the DeKalb Board, and as a result, formed their own real estate boards serving a predominantly African-American clientele. Empire, one of these predominantly African-American associations, claimed that its members could not afford to belong to both organizations and were forced to either give up their membership in Empire or be denied access to the multiple listing service. See Thompson, supra at 1569-1570.

       It should be noted that a similar suit, Presley v. Metropolitan Multi-List, was filed in federal district court against the DeKalb Board and MML on June 15, 1990, for which Chicago did provide coverage. At the time this second suit was filed, the DeKalb Board and MML had changed their policy on accepting exclusive agency listing agreements.

       We do not address this issue because it was not ruled on by the trial court and therefore was not briefed on appeal. Accordingly, there is nothing presented for our review.

       Although the DeKalb Board purchased optional, additional insurance under an endorsement to the policy, the original policy was procured and paid for by the NAR.


author: McMurray, Presiding Judge.

text:
    A97A1986.
    BIGGINS v. THE STATE.
    (494 SE2d 45)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of two counts of forgery in the first degree and one count of forgery in the second degree. The evidence adduced at his trial revealed that a tenant, Robin Mills, had been asked.to watch over the home, of 80-year-old Dorothy Raines (“the victim”), after the victim was incapacitated with a stroke. “Ms. Mills was letting people in the house that. . . she shouldn’t have been letting in the house. . . .” The victim’s checking account is a joint account with her sister, Grace Rivers Bevin. Only Ms. Bevin and Ms. Raines are authorized to sign checks on this account. Ms. Bevin also holds a durable power of attorney over her sister’s affairs.

Ms. Bevin identified State’s Exhibits 2, 3, and 4 as checks from the victim’s checking account at the Trust Company Bank of Savannah. Check number 988 was dated January 24, 1996 and drawn to the order of “Nolan Biggins” in the amount of $175. A notation on the bottom left side recites: “For roofing work.” The signature of the maker is ostensibly that of “Mrs. Dorothy R. Raines.” According to Ms. Bevin, she did not know defendant, she did not write that check, she never authorized it, and no roofing work'was done at her sister’s house at that time. Check number 991 from the victim’s account was also dated January 24, 1996. This was drawn to the order of “Nolan Biggins” in the amount of $175. The notation recites Yard work,” and is signed under the name “Mrs. Dorothy R. Raines” as the maker of the check. But the victim did not sign this check and Ms. Bevin did not authorize it. Defendant performed no yard work for the victim. Check number 996 is dated “1-25-1996,” and drawn to the order of “Nolan Biggins” in the amount of $175. It is also purportedly signed by the victim as the maker of the check, and contains the notation: “work.” Ms. Bevin confirmed her sister did not sign that check, and that Ms. Bevin never authorized it. Ms. Bevin discovered the problem when she examined a box of unused checks. “[W]hen [she] went through them, [she] found that fifty checks were missing, and the numbers were from . . . nine hundred and something through — almost to . . . one thousand.”

Tommy Thomson owns “Harry’s Liquorama on Pennsylvania and Capital,” in Savannah, Georgia. He identified defendant as the person who cashed State’s Exhibit 2, check number 988. Defendant showed Mr. Thomson some photograph identification and told him the check was for some roof repair. Mr. Thomson thought the victim “had a non listed [telephone] number at the time, and [Mr. Thomson] couldn’t reach her.” Defendant gave Mr. Thomson “a number of her daughter to call and verify the work had been done to the house.” Mr. Thomson called that number to verify “if work had been done ... at this address, 631 West 42nd Street, some roofing work had been done and they said Yes.’ ” After giving defendant the $175 less a small percentage for cashing, Mr. Thomson “got the check back in the mail, and it had been stamped ‘Payment Stopped.’ ” Mr. Thomson identified State’s Exhibit 5 as the identification card defendant used when he cashed check number 988.

Betty Milton, a Customer Service officer with Sun Trust Bank on Skidaway Road, identified defendant as the man who attempted to cash State’s Exhibit 3, check number 991. When defendant “asked [Ms. Milton] to approve this [check], [she] went to the computer and pulled the account up to make sure the funds were available. And at that time, [Ms. Milton] noticed that there was a caution on the account.” “It read to alert police or call [the bank] security man, and it had a little notation that checks had been stolen.” While Ms. Milton telephoned Mr. Poole, the bank security officer, defendant “took his ID from [Ms. Milton] and left the bank, and left the check in [her] hands.” Ms. Milton forwarded “the [video]tape that had his [defendant’s] picture on it. . . downtown to Mr. Poole.”

Defendant subsequently “called [back], stating that he had had an emergency page, he had to leave. He wanted to know if he came back to the bank, could we cash the check for him, and he was told that that would be no problem.” When defendant returned, Ms. Milton stalled for time by telling defendant that she “did not know where it [check number 991] was at that time,” awaiting the arrival of the police. Defendant inquired “if he could get her [the victim] to write another check, could [Ms. Milton] cash it for him, and [Ms. Milton] said that would be no problem.” Defendant then left the bank for a second time. Ms. Milton “was able to get the tag number off the car and . . . the color of the car. . . .” There were “[t]hree [occupants], including [defendant].” Corporal Devon Kennedy of the Savannah Police Department arrived after defendant left the second time. When defendant reentered the bank, he “had already gotten . . . ten or twelve feet inside the doorway of the bank, and as soon as we [Corporal Kennedy and another officer] stepped to the doorway and made eye contact, [defendant] looked surprised.” Defendant “immediately spun around and started walking back out of the bank.” Defendant was arrested in the parking lot. A search incidental to that arrest turned up defendant’s “parole ID card and another check on the account of [the victim]. That was check number [996]. It was in his back left pants pocket.”

Defendant’s amended motion for new trial was denied and this appeal followed. Held:

1. Defendant’s photographic identification card was issued by the Georgia Department of Corrections. Defendant moved in limine to preclude reference to “the fact that it was a prison ID. . . .” The denial of that motion is enumerated as error.

Generally, evidence of a criminal defendant’s bad character is legally irrelevant. OCGA § 24-2-2; Ledford v. State, 202 Ga. App. 694 (1), 695 (415 SE2d 693). The better practice, by far, is for the State’s Attorney to redact such arguable indications of extrinsic crimes on the State’s own initiative. Brewer v. State, 219 Ga. App. 16, 18 (3) (463 SE2d 906). See also Wilson v. State, 222 Ga. App. 818, 820 (476 SE2d 97) (Beasley, C. J., concurring specially). Nevertheless, in our view, this arguable evidence of legally irrelevant extrinsic crimes does not create reversible error in the case sub judice. “ ‘Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. [Johnson v. State, 260 Ga. 457 (2), 458 (396 SE2d 888).]’ ” Hayes v. State, 265 Ga. 1, 3 (4) (453 SE2d 11). Here, the photographic identity card defendant proffered was relevant to the identity of the perpetrator and to the credibility of the witnesses. There is no reference to any actual charge or conviction, nor does the card indicate that defendant is a parolee. We liken these circumstances to the admission of photographs from the so-called Rogue’s Gallery, which does not require a new trial. Cooper v. State, 182 Ga. 42 (2) (184 SE 716). Accord Sapp v. State, 222 Ga. App. 415, 418 (4) (474 SE2d 233) (fingerprint cards).

Decided November 3, 1997

Reconsideration denied November 12, 1997

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

2. Defendant urges the general grounds, arguing the checks were already filled out when he received them from Robin Mills.

“Both knowledge and intent to defraud may be proven by circumstantial evidence. [Cit.]” Crowder v. State, 218 Ga. App. 630, 631 (2) (462 SE2d 754). “ ‘ “Knowingly passing as genuine a forged instrument is conclusive of the intent to defraud.” Jordan v. State, 127 Ga. 278 (4) (56 SE 422) (1906).’ Matula v. State, 264 Ga. 673, 674 (2) (449 SE2d 850).” (Punctuation omitted.) Crowder v. State, 218 Ga. App. 630, 631 (2), 632, supra.

The evidence in the case sub judice was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that defendant is guilty beyond a reasonable doubt of forgery in the first degree as alleged in the first two counts of the indictment. Crowder v. State, 218 Ga. App. 630, 631 (1), 632, supra. The evidence is further sufficient to authorize the jury’s verdict that defendant committed forgery in the second degree as charged in Count 3, by his possession of a forged instrument with the intent to defraud.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Smith, J, concurs in the judgment only.