author: Smith, Judge.

text:
    A96A0069.
    DOE v. PRUDENTIAL-BACHE/A.G. SPANOS REALTY PARTNERS et al.
    (474 SE2d 31)
   Smith, Judge.

On a Sunday afternoon in December, Jane Doe was attacked after parking her car in the garage underneath her apartment building at Regency Square Apartments in Atlanta. After she exited her car and began walking away from it, a man approached her and demanded her purse. He threatened Doe with a knife, wrestled her to the ground, and shoved her over a nearby four-foot-high wall to the outside of the garage. After pushing her to a grassy area outside the garage and raping her, he fled, apparently taking her purse with him. These events occurred at midafternoon on a sunny day in December.

Doe brought this action against the owners/managers of Regency Square, alleging that Regency Square failed to maintain safe premises under OCGA §§ 51-3-1 and 44-7-14, failed to provide a premises free of latent defects, failed to provide adequate security, made fraudulent misrepresentations regarding the security at Regency Square, and failed to warn her of defects in the design of parking garages and security fences. Regency Square moved for summary judgment on all claims, which was granted by the trial court.

1. Doe contends the trial court erroneously granted summary judgment to Regency Square on her OCGA § 51-3-1 claim. We disagree. To prevail against a proprietor when one is injured by the criminal act of a third party, a plaintiff must show that the act was reasonably foreseeable. Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991).

(a) A plaintiff may prove that the criminal act was reasonably foreseeable through evidence of prior substantially similar crimes. Roe, supra, 261 Ga. at 765. In Roe, plaintiffs were sexually assaulted in their college dormitory. Id. at 764. The college had no knowledge of prior sexual assaults, and no evidence of other violent crimes against individuals was presented. Id. at 765-766. The Supreme Court concluded that the evidence was insufficient “to create a factual issue as to whether the college knew or should have known that its dormitory residents were at risk of a violent criminal sexual attack” and held that summary judgment on the college’s behalf was warranted. Id.

On motion for summary judgment, Regency Square submitted undisputed evidence that prior to Doe’s attack, there had been no physical attack against a person in the garages at Regency Square. Doe responded that during the five months before she began renting her apartment, twelve crimes were committed in the parking garages: nine thefts and three acts of vandalism. Relying on police incident reports, she also stated that 19 thefts were reported during the time she lived at Regency Square. She contended that she was informed of only two incidents.

We recognize that “substantially similar does not mean identical.” Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994), aff’d, 265 Ga. 235 (454 SE2d 507) (1995). In Matt, plaintiff was shot in the parking lot of a hotel. Evidence was presented that prior to the shooting, several crimes occurred in the parking lot including a robbery by force without the use of a weapon. Matt, supra, 212 Ga. App. at 792. The record of criminal incidents, including violent assaults, in parking lots of nearby hotels was also introduced. Id. at 792-793. We concluded that this evidence was sufficient to create a factual issue as to foreseeability of criminal conduct against the hotel’s guests. Id. at 795. Stating that a “free bite” analysis is not the test of foreseeability, we found no distinction between robberies by force and violence and armed robberies. Id. Similarly, in Shoney’s, Inc. v. Hudson, 218 Ga. App. 171 (460 SE2d 809) (1995), a restaurant patron was robbed in the restaurant’s parking lot. Id. Evidence was presented that prior to this incident, the restaurant knew about three prior acts of violence against employees of the restaurant and one act of violence against a person next door. Id. at 172. We found no distinction between crimes against employees and those against patrons and concluded that the prior incidents were substantially similar to the attack against the plaintiff. Id. at 173.

A distinction does exist, however, between crimes against property and crimes against persons. In Matt, we distinguished Roe, noting that the prior crimes in Roe were not violent crimes against persons but were “offenses against property or public morals which would not put the college on notice that it was reasonable to expect a sexual attack on a dormitory resident.” 212 Ga. App. at 795. This distinction was also recently acknowledged in Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148 (464 SE2d 220) (1995). Citing Matt, this Court stated: “[W]e consider the key to sufficient similarity to be not in the details of the crime or even in the degree of force used, but rather in the nature of the offense: was the prior incident also an offense against a person, or was it an offense against property or public morals?” (Emphasis supplied.) Id. at 149 (1) (a).

We have not the slightest doubt that Doe suffered a horrible and terrifying experience. However, unlike Matt and Hudson, the evidence was undisputed that no prior violent criminal attacks, sexual or otherwise, occurred on persons prior to Doe’s rape. As in Roe, supra, the evidence here did not create a factual issue as to whether Regency Square knew or should have known that its residents “were at risk of a violent criminal sexual attack.” 261 Ga. at 766. See also Ritz Carlton Hotel Co. v. Revel, 216 Ga. App. 300, 303 (454 SE2d 183) (1995).

(b) We agree with Doe that proof of prior substantially similar incidents is not the only method of proving foreseeability. In Hudson, supra, evidence was presented that the restaurant’s management had previously “acknowledged that there was a potential for attacks on customers in the restaurant’s parking lot.” 218 Ga. App. at 174. Similarly, in Snowden, supra, two of defendant’s employees testified that they considered the parking lot where plaintiff was raped unsafe, that “they had repeatedly suggested the hiring of a security guard, that male employees always walked female employees to their cars at night, and that they would not allow their wives to go to the store alone.” 219 Ga. App. at 149 (1) (b).

Without pointing to evidence that Regency Square’s management actually acknowledged the potential for physical attack in its parking garages, Doe relies primarily on the affidavit of an individual she characterizes as an expert in premises security. She argues that Regency Square had knowledge that a crime against an individual was likely to occur because it knew of a large number of crimes in the parking garages. The expert made the following observations: Regency Square knew or should have known that the garages attracted criminals and that criminals were being allowed access to the premises; Regency Square knew or should have known that the regularly occurring crimes increased the risk of physical harm; Regency Square should have known that a tenant, if present during the commission of the crimes, could become a victim of a violent crime and that failure to deter crimes against property would escalate into crimes against people. Doe argues that under Hudson, this evidence raises a factual question as to the foreseeability of her attack.

We disagree. In Hudson, an expert did testify by affidavit that the defendant should have provided uniformed security at night in defendant’s parking lot “because it was located in a high crime area and was surrounded by areas of dark shadows.” 218 Ga. App. at 174. This case, however, is distinguished factually. The expert testimony in Hudson was merely cumulative of evidence of prior crimes against individuals and the proprietor’s knowledge of those crimes. Here, it is undisputed that no crimes against individuals occurred prior to Doe’s attack. Doe’s attack occurred during midafternoon on a sunny day. Doe acknowledged that the garage was adequately lit and that she was familiar with the layout of the garage. Our law does not support imposition of liability based on the conclusions of Doe’s expert that physical assault could or would occur. Assuming that Regency Square had knowledge of several thefts, crimes against property do not constitute evidence that crimes against people can or will occur. See Roe, supra; Lau’s Corp., supra; Revel, supra.

(c) We also reject Doe’s contention that her attack was foreseeable because newspapers and other media in the metro-Atlanta area reported that a serial rapist, known as the “Buckhead rapist,” who had attacked women almost exclusively in parking garages was at large. Such reports, even if admissible and even if it was shown that agents of Regency Square had read or heard them, provide no basis for imposition of liability on Regency Square. To so impose liability would effectively make Regency Square and every other metro-Atlanta business with a parking garage an insurer of its own premises. Evidence that an alleged rapist was at large in another part of Atlanta is not comparable to the evidence in Hudson that “it was common knowledge that the restaurant in question was located in the highest crime area of any of the Shoney’s restaurants in Savannah.” (Emphasis supplied.) 218 Ga. App. at 174. Moreover, such evidence is not comparable to evidence in Hudson that the restaurant’s own employees acknowledged the potential for attacks in the restaurant’s parking lot. This contention has no merit.

(d) Doe also contends that “there is evidence that [Regency Square] had notice of the presence of the actual rapist in the parking garages at the complex just days before the rape” yet failed to respond to this knowledge, creating an issue of fact as to whether Regency Square breached its duty of exercising ordinary care. She contends that had Regency Square responded appropriately to the report about this individual, her rape could have been avoided.

Doe mischaracterizes the evidence presented. She submitted evidence that a few days before the rape, a suspicious-looking man was seen “running from place to place” and that Regency Square did nothing in response to the report. The couple who saw him was shown a photograph of the actual rapist but could not identify the rapist as being the suspicious-looking man they saw in the garage. Further, the rapist himself was described by Doe as being clean and pleasant-looking — like “someone who lived in the complex” — not as being suspicious. The evidence did not connect the unidentified, suspicious-looking man with the rapist, and we find no merit in Doe’s contention that Regency Square had notice of the rapist’s presence in the parking garage prior to the rape. See Revel, supra, 216 Ga. App. at 305 (3).

2. Doe also argues that Regency Square should have taken additional security measures in light of its “knowledge that criminals were being allowed access to the garages and that their existing security measures were not deterring such entry.” She contends blind spots provided places for criminals to hide and that assaults could occur without detection, both out of sight and out of earshot. She states that access could have been controlled by placing fencing over areas of open access and that the garages could have been patrolled at all hours. Doe again attempts to impose the status of insurer on Regency Square, and we reject this contention.

Even a threshold duty to provide security measures for the type of attack involving Doe requires a showing that the attack was foreseeable. “Knowledge of a dangerous condition giving rise to the incident is necessary in order to show the existence of even an initial duty to provide preventive security measures for this type of attack. [Cit.]” Id. at 303 (2). Here, as in Revel, “[s]ince there were no prior substantially similar attacks on the premises, there was no such knowledge and no duty to provide security adequate to protect against this kind of attack. [Cits.]” Id. Since the rape in this case was not foreseeable, we cannot state that measures additional to those undertaken by Regency Square were necessary.

3. Under a “breach of assumed duty” theory, Doe argues that because some security measures were undertaken, Regency Square should be liable because more were not undertaken. We disagree. “A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. ... If a defendant undertakes to do more for the benefit of another person than the law requires, he or she may be held liable if he or she acts unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources.” (Citations and punctuation omitted.) Id. at 303-304.

The record reveals that Regency Square employed both an outside security service and a courtesy officer. From 10:00 p.m. until 6:00 a.m., periodic patrols were made by both the courtesy officer and employees of the security service. In general, courtesy officers “walk[ed] the property” daily and responded to problems such as broken lights, lockouts, and loud music complaints. While the purpose of the courtesy and security services, according to Regency Square, was not necessarily to deter crime but to make tenants feel “more comfortable,” provision of these services could not reasonably lead to the conclusion that all danger had been removed from an area such as the parking garage, which Doe admitted was accessible from the outside. She acknowledged that if anyone wanted to enter the garage, he could enter in one of the open areas over a wall only four feet high, could walk in the open area where the gate was located, or could come down the stairs or elevator. She also acknowledged that she was never guaranteed that no danger would befall her. Despite Doe’s knowledge of the layout of the garage, she continued to park in the garage even though other parking was available. In short, “contrary to misleading [Doe] into believing that all generalized danger had been removed, aspects of the [garage] itself indicated that not all conceivable risks had been removed.” Id. at 304 (2).

4. Doe contends that Regency Square had a duty under OCGA §§ 44-7-13 and 44-7-14 to remedy latent defects in the premises. She maintains that Regency Square should have known the garages were defectively designed, having isolated hiding places that could not be seen from the apartments or by passersby. According to Doe, Regency Square should have known that the design was defective because of the other crimes and the suspicious individual, and her attack was “a natural and probable consequence of these dangerous conditions.” Again, the alleged “other crimes” were not violent crimes against persons that made Doe’s rape foreseeable. See Division 1, supra. And if any defect existed, it was open and obvious. Division 3, supra.

5. Doe bases a fraud claim against Regency Square on alleged statements regarding safety made by an unidentified individual. She contends that she was told by a leasing agent that the grounds and garages were “patrolled and secured” and that she chose to lease an apartment based on this representation. According to Doe, despite these “promises,” no patrols were provided that could have deterred the rapist. Instead, patrols occurred only during limited nighttime hours. She states that these “promises” and actions misled her into believing the dangers presented by the open access to the parking garages had been removed. She contends that if she had known the danger had not been removed, she would not have parked in the garage on the day of the rape.

Doe’s fraud claim fails. To prevail on such a claim, one must prove five essential elements, the first being that the defendant made a false representation. See, e.g., Pankowsky v. Sasine, 218 Ga. App. 646, 647 (2) (462 SE2d 791) (1995). Doe has pointed to no evidence that an agent made a misrepresentation to her, other than her bare allegation that an agent of Regency Square stated that the garages were “patrolled and secured.” Even if agency were adequately proved, the record does not show that the imputed statement was untrue. As noted in Division 3, evidence was presented that the garages were patrolled during certain hours of the day. Doe attempts to substantiate her fraud claim by contending that the agent failed to tell her that guards walked through the garages only during certain limited hours. Such an alleged “concealment,” though, provides no basis for Doe’s claim. “Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover.” (Citations and punctuation omitted.) Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986). Doe admitted below that she asked no questions as to the schedule of patrols. Consequently, there can be no contention that the truth was evaded upon inquiry. The fact that the garage was not patrolled 24 hours a day, seven days a week was not an “intrinsic” condition which, in the exercise of ordinary prudence, could not be discovered. Doe lived at Regency Square 23 months prior to her attack, and ordinary observation should have revealed to her that the garages were not patrolled constantly. Doe also signed a rental application referring to some properties with a “24 hour guarded gate,” thereby implicitly placing her on notice that some but not all of Regency Square properties did provide 24-hour guarded gates and that Regency Square was not such a property. Finally, that agreement provided: “Residents are responsible for their own safety. We do not warrant that our security is capable of deterring or preventing crime. Every resident is encouraged to assist in crime prevention.”

Decided June 19, 1996

Reconsideration denied July 10, 1996

Sutherland, Asbill & Brennan, William D. Barwick, Patricia A. Gorham, William S. Wright, for appellant.

Doe also attempts to create a jury issue by stating that the agent told her that the garage was “secured” in addition to being patrolled. This attempt fails because this statement was merely one of opinion, or sales puffing, which cannot form the basis of a fraud claim. See U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983). “Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. And when the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like, the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.” (Citations and punctuation omitted.) Miller, supra, 178 Ga. App. at 822. Doe was bound to inquire into the alleged statement that the garage was secured. In fact, she admitted that she “wondered” about the security of the garage because she could see the open areas. Despite her concern, however, she failed to independently investigate whether the garage was indeed secure. She did not exercise common prudence in an effort to “ascertain the truth” of the alleged statement that the garages were secured and cannot claim fraud.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Kathryn S. Whitlock, John C. Bonnie, for appellees.

       She also sued her assailant in the same action.

       In support of her argument that no “free bite” rule exists in this state, Doe cites Wallace v. Boys Club of Albany &c., 211 Ga. App. 534 (439 SE2d 746) (1993). We recognize that we reversed the grant of summary judgment for the defendant there. The holding in that case, though, is inapposite. Wallace involved negligent “supervision of a child of tender age” and was not a premises liability case. Id. at 535 (1).


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A96A0308.
    CRIDER v. ZURICH INSURANCE COMPANY et al.
    (474 SE2d 89)
   Birdsong, Presiding Judge.

This is a negligence suit for damages for injuries sustained when appellant/plaintiff William Darrell Crider was injured while a detainee in the custody of the Department of Corrections, State of Georgia, at the Northwest Detention Center in Cedartown, Georgia. Appellant appeals the trial court’s grant of summary judgment in favor of appellees/defendants Zurich Insurance Company, Polk County, Georgia, and Polk County Board of Commissioners.

On September 8, 1992, appellant was assigned to a tree trimming work detail in Polk County and, at the direction of a Department of Corrections’ guard, was standing in the front bucket of a backhoe that was elevated above the ground. The bucket unexpectedly dropped and momentarily suspended appellant in mid-air; it apparently was re-elevated immediately, but appellant was thrown or fell from the bucket onto the pavement. As a result of this incident, appellant is paralyzed from the neck down. The backhoe was owned by Polk County and was operated by a Polk County employee assigned to work on the tree trimming project.

The trial court granted summary judgment to appellees on the grounds that the county had no insurance covering appellant’s claim and sovereign immunity therefore had not been waived. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. “In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity ‘to the state and all its departments and agencies,’ and this immunity is to prevail except as specifically provided therein.” Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d 476), citing Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). This amendment became effective on September 1, 1991 (id.) and is applicable in this case. Counties are included within the definition of “ ‘agents or departments of the state’ ” as contemplated by the 1991 amendment, and sovereign immunity extends to counties, unless specifically waived by an Act of the General Assembly. Gilbert at 746-747 (2). “[Sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” Id. at 748 (3).

“OCGA § 33-24-51 provides that a county waives its governmental [sovereign] immunity to the extent of the amount of liability insurance purchased for the negligence of its officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.” (Emphasis supplied.) Id. at 748-749 (4); accord Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581). OCGA “§ 33-24-51 (b) provides both a waiver of sovereign immunity and the extent of such waiver and is, therefore, a legislative act waiving sovereign immunity as contemplated by the 1991 amendment.” Gilbert, supra at 751 (4). As OCGA § 33-24-51 (b) in effect provides a legitimate statutory exception to the constitutionally recognized power of sovereign immunity, the statute is subject to strict construction. Compare Bailey v. Williams, 214 Ga. 702, 703 (107 SE2d 209) which holds that an exception to a statutory requirement must be strictly construed.

Pretermitting all other questions raised by appellant is the question whether a backhoe is a “motor vehicle” within the meaning of OCGA § 33-24-51 (a) (sovereign immunity statute) for which insurance to cover liability for damages may be secured and provided. If a backhoe is not such a vehicle, then there exists no waiver of county sovereign immunity in this case, as a matter of law, because according to the waiver provisions of OCGA § 33-24-51 (b) only the purchase of “insurance authorized by subsection (a)” of the Code section results in the waiver of sovereign immunity by the county.

We conclude that this issue is not controlled by the narrow definitions of “motor vehicle” contained in the automobile insurance statutes, because, herein, coverage is sought under a general liability policy, not an automobile insurance policy. Rather, this determination is controlled by the intent of the legislature in passing the sovereign immunity waiver statute and by the language of the general liability insurance contract itself.

OCGA § 33-24-51 (a) provides that “a county ... is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county.” (Emphasis supplied.) Subsection (b) provides that by the purchase of such insurance a county waives its governmental immunity to the extent of the amount of liability insurance purchased. See OCGA § 33-24-51 (b).

The legislature’s purpose and intent in providing for a waiver of the county’s sovereign immunity is essential to our interpretation as we are charged with construing statutes in order to effectuate such intent and purpose. See OCGA § 1-3-1 (a). Without the waiver provided in OCGA § 33-24-51, Georgia’s Constitution provides for the extension of sovereign immunity to “the state and all of its departments and agencies.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (e). The intent of the legislature in enacting a waiver of sovereign immunity was to allow for the compensation of parties injured by employees and agents of the state through the purchase of liability insurance where recovery is otherwise barred.

Automobile liability policies are purchased to provide coverage consistent with the statutes governing such policies, including the definition of a motor vehicle as being designed primarily for operation upon the public streets, roads and highways. OCGA § 33-34-2; Hinton v. Interstate Guaranty Ins. Co., 220 Ga. App. 699 (470 SE2d 292).

General liability policies are purchased primarily to provide coverage for incidents other than those covered under automobile liability policies. Where, as here, the subject vehicle would not fit the definition of motor vehicle under the automobile liability statutes, as it was not designed for and used primarily on public streets, coverage may be available under the general liability policy if (1) the waiver of sovereign immunity for such liability was authorized by OCGA § 33-24-51 (a); and (2) coverage is provided by the terms of the subject policy.

In determining the intention of the legislature in adopting OCGA § 33-24-51 (a), we note that it covers incidents “arising by reason of ownership, maintenance, operation, or use of any motor vehicle.” Clearly the present incident involves the above elements. Had the legislature intended to limit sovereign immunity waiver to the operation of motor vehicles designed for and used primarily upon the public streets they could easily have provided for the application of the definition of motor vehicle as contained in the automobile liability insurance statutes in the interpretation of the sovereign immunity waiver statute, but they did not do so.

Inasmuch as the county operates numerous vehicles for which coverage would not be available under the automobile liability insurance statutes and policies, it is not unreasonable to assume that it was their intention to provide coverage for incidents involving such vehicles through the purchase of general liability insurance coverage. It would be inconsistent with the purpose of the sovereign immunity waiver statute to hold that the county was not authorized te purchase coverage to provide benefits to victims of motor vehicle incidents simply because the involved motor vehicle was not designed primarily to be used on the highway. Such an interpretation would prefer one class of victims over another where both are injured by motor vehicles, with no mandate from the legislature to do so.

The county’s waiver of sovereign immunity by the purchase of general liability insurance coverage for the type of incident herein involved is clearly authorized under OCGA § 33-24-51 (a). Whether the statute is construed narrowly or broadly, it is the insurance contract which determines whether coverage exists with the existence of a waiver of sovereign immunity being dependent thereon.

The subject general liability insurance contract does not exclude coverage for injury or damage arising out of the use of a backhoe. Indeed, it specifically provides coverage applicable to the present case, for the use of mobile equipment. “Mobile equipment,” in pertinent part, is defined in the contract as “any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; . . . d. Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers.” Furthermore, as Zurich drafted the insurance contract, it will be construed against Zurich. As the county purchased general liability insurance coverage authorized by OCGA § 33-24-51 (a), we find that the trial court erred in granting summary judgment to the appellees.

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J., concurs fully and specially.

Beasley, Chief Judge,

concurring specially.

I concur fully but wish to distinguish Pate v. Turner County, 162 Ga. App. 463 (291 SE2d 400) (1982), upon which case both appellees rely. The backhoe, which was being operated by a driver on a public roadway for the purpose of transporting a passenger in order for him to accomplish his assigned task, differs significantly from the sanitary landfill compactor in Pate.

The compactor was not designed to haul passengers or freight and the metal wheels required it to be driven on soil or dirt. Unlike the backhoe, it could not be driven on a hard surface such as a road. The backhoe’s four wheels are rubber and its scoop is for the purpose of moving or lifting and transporting soil or other objects in quantities greater than a person could do at once with a hand-held container. It was being used to elevate Crider so he could cut tree limbs which were too high to be cut from the roadway or from the bed or roof of the dump truck also being used for the project. He was thrown into the air and fell onto the roadway.

Pate is also different in another significant respect. The policy there did not cover the vehicle. The court stated that it “was not listed as a vehicle for which liability insurance was purchased.” Peculiarly, the court did not end the analysis there but stated that the immunity would not apply if the vehicle was the type for which immunity-waiving insurance could be purchased under OCGA § 33-24-51. There is no waiver of immunity if payment is not required under the contract. Ward v. Bulloch County, 258 Ga. 92, 93 (365 SE2d 440) (1988). “Where the plain terms of the policy provide that there is no coverage for a claim, or where the insurer has established in a declaratory judgment action that it is not obligated to pay a claim, there is no waiver of sovereign immunity. [Cits.]” Bd. of Regents &c. of Ga. v. Daniels, 208 Ga. App. 195, 196 (430 SE2d 45) (1993), rev’d on other grounds, 264 Ga. 328 (446 SE2d 735) (1994).

The court went on in Pate nevertheless to analyze whether the compactor was a “motor vehicle” within the contemplation of the statute; if it was, there was a waiver, and if it was not, then the defense of sovereign immunity was not waived. The court construed the statute’s words and adopted several definitions of “motor vehicle” which were used in other parts of statutory law as it then existed. The Official Code of Georgia Annotated was not applied, as it was not yet in effect. OCGA §§ 1-1-1; 1-1-9 (effective November 1, 1982). Without explaining a rationale, the court chose the definitions from the Georgia Motor Vehicle Accident Reparations Act and Chapter 68 of the unofficial Georgia Code Annotated, which it described as dealing with “licenses, registration and operation of motor vehicles.” Applying those definitions, which it gave to the statute authorizing the purchase of insurance by municipalities, counties, and other political subdivisions of the state, it is not difficult to understand its conclusion that the statute did not include the landfill compactor.

But are these the proper definitions to apply in this case? The Reparations Act, known as the No-Fault Act, was repealed in 1991 and a new reparations act was adopted. Ga. L. 1991, p. 1608, § 1.12. The definition of “motor vehicle” was essentially readopted. OCGA § 33-34-2 (1). In Daniels v. Decatur County, 212 Ga. App. 378, 380 (2) (441 SE2d 790) (1994), aff’d Decatur County v. Daniels, 264 Ga. 822 (452 SE2d 511) (1995), we recognized that there are variations between the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-2) and the statute providing waiver of immunity by way of insurance (OCGA § 33-24-51). They are not coextensive.

The Paie-referenced definition in Chapter 68 is now OCGA § 40-1-1 (33) but has different wording: “ ‘Motor vehicle’ means every vehicle which is self-propelled.” The other word referenced in Chapter 68, “vehicle,” is now defined in OCGA § 40-1-1 (75): “ Vehicle’ means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.”

The Constitution of Georgia permits the General Assembly to “waive the immunity of counties, municipalities, and school districts by law.” Art. IX, Sec. II, Par. IX. An exercise of this authority is found in the statute applicable here. Daniels v. Decatur County, supra at 379 (l). By OCGA § 33-24-51 (a), the General Assembly authorizes a political subdivision to provide liability insurance for bodily injury or death “arising by reason of ownership, maintenance, operation or use of any motor vehicle” by the political subdivision, “whether in a governmental undertaking or not.” The obvious purpose is a humane one, to provide relief for people who are injured or killed in certain instances, when otherwise they would be without remedy because the governmental unit is immune from suit.

As recognized in Pate, the legislature did not define a “motor vehicle” for the purpose of this statute, although for other specific purposes strewn throughout the Code it provided a variety of definitions tailored to whatever the legislature’s goal was in that particular statute. Here the object is coverage, not non-coverage, and the legislature does not limit the motor vehicles to those which require state registration or licensing or which are intended primarily for use upon the public highways. It is common knowledge that “[a] municipal corporation, a county, or any other political subdivision of this state” would own, maintain, operate, or use many motor vehicles other than cars, buses, and trucks. It is further ordinarily known that persons could be injured or killed by such vehicles on the roadways.

The term should therefore be broadly construed, to achieve the purpose of the statute and because no limiting definition is given, as in other instances. OCGA § 1-3-1; City of Calhoun v. North Ga. EMC, 233 Ga. 759, 761 (1) (213 SE2d 596) (1975). As repeated in that case, “the cardinal rule to guide the construction of laws is, first, [as stated in OCGA § 1-3-1 (a),] to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.” (Punctuation omitted.) Id. In addition, “[statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987); OCGA § 1-3-1 (b). “[A] statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose.” (Citation and punctuation omitted.) Blank v. Collins, 260 Ga. 70, 71 (2) (389 SE2d 493) (1990).

According to The American Heritage Dictionary (2nd College ed. 1985), a motor vehicle is “a self-propelled, wheeled conveyance that does not run on rails.” The backhoe in this case would also come within the definitions provided in OCGA §§ 40-1-1 (75) and 40-1-1 (33), if some selective application of legislative definitions for other purposes is appropriate. Those definitions govern the general regulation of “Motor Vehicles and Traffic” in Title 40. The definition in OCGA § 40-1-1 (33) was applied to include a medium-sized Ford tractor for the purpose of sentencing a thief of a “motor vehicle” in violation of OCGA § 16-8-12 (a) (4) (A), in Browning v. State, 207 Ga. App. 547, 549 (3) (428 SE2d 441) (1993). If it can be used to distinguish between felony and misdemeanor sentence authorization in a criminal statute, which must be strictly construed, Doe v. Bd. of Regents &c. of Ga., 215 Ga. App. 684, 688 (3) (452 SE2d 776) (1994), it should apply as well to insurance coverage when no narrower definition is supplied by the legislature. In Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438 (287 SE2d 226) (1981), the Court in construing a Georgia Infirmary Non-Profit Housing Corporation insurance policy (“known as an apartment owner’s property liability policy”) held that a mobile crane was a covered vehicle. The policy did not define “vehicle” but did state that it did not insure “[a]ny vehicle or machine licensed for use on [a] public thoroughfare.”

The backhoe clearly comes within at least some of the other definitions expressly provided by the legislature for other purposes, such as OCGA §§ 16-5-44.1, 40-11-1 (2), and 43-48-2. Had the legislature intended the authorization for insurance to be limited to instances where human life and limb are adversely affected by motor vehicles required to be registered and licensed only, or only for those designed primarily for operation on the public streets, roads and highways, and not including other motor vehicles typically owned by governmental units which are just as likely to cause injury or death, it could have so provided. Moreover, what it did encompass in the statute was “any motor vehicle”; we cannot ignore the word “any.”

It is not within our realm of authority to pick and choose from the variety of definitions formulated for other specific subject matters which the legislature was addressing. See generally City of Ros well v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). Nor does the law allow us to import a limitation not otherwise appearing. Howze v. State, 201 Ga. App. 96, 97 (410 SE2d 323) (1991).

The insurance in this case provides general liability coverage; it is not an automobile policy. Motor vehicle accident insurance, which is governed by Chapter 34 of the title on insurance, has a definition in OCGA § 33-34-2 (1) for “motor vehicle” as the term is “used in [that] chapter,” which as stated earlier is known as the Georgia Motor Vehicle Accident Reparations Act. OCGA § 33-34-1. On the other hand, OCGA § 33-24-51 (a) does not limit the governmental unit to the purchase of motor vehicle liability insurance under Chapter 34. In Gilbert v. Richardson, 264 Ga. 744, 751 (5) (452 SE2d 476) (1994) , the Supreme Court held that a county’s purchase of a GIRMA (Georgia Interlocal Risk Management Agency) liability coverage agreement “covering the negligent acts of its employees constitutes the purchase of insurance as contemplated by § 33-24-51 (b).” Authority for this coverage is not under the Insurance Title of the Code (no. 33) but rather under the Local Government Title (no. 36). So there is no reason to limit the definition of “motor vehicle” as used in OCGA § 33-24-51 (b) to the definition provided in a different part of the Insurance Title just because they are both assembled under the Insurance Title. The codifiers, not the General Assembly, put them together. See Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1. In McLemore v. City Council of Augusta, 212 Ga. App. 862, 863 (2) (b) (443 SE2d 505) (1994), we held that OCGA § 33-24-51 was not limited to automobile liability policies and that the general liability policy in that case was a policy “within the meaning of OCGA § 33-24-51.”

Therefore, as in Gilbert and McLemore, Polk County “has waived its sovereign immunity to the extent of its liability coverage,” Gilbert, supra at 752, as coextensive with the scope of the statute. Winston v. City of Austell, 123 Ga. App. 183, 184 (179 SE2d 665) (1971); Revels v. Tift County, 235 Ga. 333, 335 (4) (219 SE2d 445) (1975). See, e.g., Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995) . There it was held that although the county had coverage under a policy of liability insurance, the waiver provided in OCGA § 33-24-51 (b) did not lift the immunity defense because plaintiffs did not allege negligent use of a motor vehicle but rather negligent inspection and maintenance of a stop sign. OCGA § 33-24-51 (b) expressly provides the waiver.

The policy does not exclude coverage for injury involving the backhoe, but only to “ ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” Thus, the coverage authorized by the statute, which when purchased waives sovereign immunity to that extent, includes that which the policy provided for here. As to this incident, they coincide. To agree with the insurer would mean that the general liability insurance which it sold to the county for a premium covered that for which the county had sovereign immunity.

Decided June 27, 1996

Reconsideration denied July 10, 1996

Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, C. Michael Conroy, for appellant.

Duncan & Mangiafico, George E. Duncan, Jr., for appellees.

       Although Ward, and Bd. of Regents involve the immunity of the state under Art. I, Sec. II, Par. IX of the Constitution, rather than a county’s immunity under Art. IX, Sec. II, Par. EX, the law is the same in respect to the extent of the waiver. What is expressly provided in the Constitution for the state waiver is provided in the statute, OCGA § 33-24-51 (b), for the county waiver.

       See, e.g., OCGA § 10-1-2 (5) (Retail Installment & Home Solicitation Sales Act); OCGA § 10-1-31 (4) (Motor Vehicle Sales Finance Act); OCGA § 10-1-622 (10) (Georgia Motor Vehicle Franchise Practices Act); OCGA § 12-9-43 (17) (Georgia Motor Vehicle Emission Inspection & Maintenance Act); OCGA § 16-5-44.1 (2) (Anti-motor Vehicle Hijacking Act); OCGA § 16-8-82 (2) (Motor Vehicle Chop Shop & Stolen & Altered Property Act); OCGA § 40-5-142 (19) (Uniform Commercial Driver’s License Act); OCGA § 40-11-1 (2) (Abandoned Motor Vehicles Title); OCGA § 43-13-2 (4) (Driver Training School License Act); OCGA § 43-47-2 (3) (Used Car Dealers’ Registration Act); OCGA § 43-48-2 (7) (Used Motor Vehicle Dismantlers, Rebuilders, & Salvage Dealers Registration Act); OCGA § 46-1-1 (16) (Public Utilities & Public Transportation Title); OCGA § 48-5-440 (4) (Ad Valorem Taxation of Motor Vehicles & Mobile Homes Title); OCGA § 48-9-2 (10) (A), (B) (Motor Fuel Tax Law); OCGA § 48-9-30 (3) (A), (B), (C) (Road Tax on Motor Carriers Title).


text:
    A96A0037.
    CHOICE HOTELS INTERNATIONAL, INC. v. OCMULGEE FIELDS, INC.
    (474 SE2d 56)
   Smith, Judge.

This case arises out of the alleged wrongful cancellation of five hotel franchise agreements. Appellant Choice Hotels International, Inc. (“Choice”), a Maryland corporation, agreed to license its “Quality Inn” and “Comfort Inn” names as well as marketing and reservations services to Ocmulgee Fields, Inc. (“Ocmulgee”), a corporation which operates motels in the Macon area. The franchise agreements were generally identified by number and consisted of three agreements for construction of new Comfort Inns in Florida and Georgia (FL-316, GA-152, GA-153), another for converting a “non-brand” motel to a Quality Tun (GA-154), and finally, one for relicensing a Quality Inn (GA-042). The first three agreements contained a “begin construction” date, and the remaining two contained a “renovation completion” date, requiring certain modifications to bring the motels up to Choice’s standards. Typically, Choice required a 12-month “begin construction” date calculated from the date of acceptance of the agreement, but Ocmulgee negotiated 24-month dates that were added to the contracts by addendum. The renovation clauses had deadlines of eight months.

When the eight-month deadline on completion of renovation for the Quality Inn conversion expired, Choice sent a notice of default letter to Ocmulgee referring to “GA-154.” Ocmulgee asserts it believed the letter applied to all five agreements; Choice, on the other hand, contends that Ocmulgee used this opportunity to escape from all five franchise agreements after Choice refused to further extend the construction deadlines. Ocmulgee wrote separate letters to Choice asserting its belief that Choice had terminated all the franchise agreements and asserting claims for setoff.

Choice responded that its letter referred only to the GA-154 project and was not intended to terminate any other agreement, but Ocmulgee’s principal had already filed suit. After it received the letters from Choice stating that the other agreements were not involved, Ocmulgee entered into a conflicting franchise agreement with Holiday Inn. Choice then wrote a letter to Holiday Inn informing it that Ocmulgee was still under contract with Choice.

Ocmulgee brought this action alleging breach of contract and fraud against Choice and Ken Holland, an employee of Choice. It sought refund of all its franchise fees, all costs incurred in renovation of the properties, damages for injury to reputation, punitive damages, and costs of litigation including attorney fees. It later added a count of tortious interference with contractual relations. At trial, a verdict was directed in favor of Holland. The jury found in favor of Ocmulgee and against Choice on breach of contract and tortious interference and awarded compensatory and punitive damages. The jury also awarded damages to Choice on its counterclaim, but struck that award after being advised by the trial court, “You can’t find in favor of both parties.” The trial court awarded attorney fees on the breach of contract count. Choice appeals from the judgment on the jury verdict.

1. Ocmulgee’s principal, Jones, testified on deposition that he never intended to adhere to the construction and renovation deadlines. He explained that Choice had allowed extensions on construction deadlines in the past, and he expected additional extensions to be allowed. In support of this, he offered testimony and documents regarding past extensions in 1964 and 1968 and letters at other times in which he referred to expected extensions. This material was admitted over objection on several grounds, one being that it violated the parol evidence rule. Choice argues that the admission of this evidence was error because it was used to vary the terms of the franchise agreements, each of which contained an integration or merger clause stating it was the entire agreement of the parties. We agree.

Well-established Georgia law provides that matters outside a contract cannot be used to vary or explain the unambiguous terms of an agreement. “While, generally, an ambiguity in a contract may be explained by parol evidence, parol evidence is inadmissible to add to, take from or vary a written contract. (OCGA §§ 13-2-2 (1); 24-6-1; and 24-6-2.) Where the contract is complete on its face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, it should not be admitted.” (Citations and punctuation omitted.) Wages v. Mount Harmony Mem. Gardens, 189 Ga. App. 99, 100 (1) (375 SE2d 57) (1988) (evidence of tenant’s “understanding” of payment terms of lease was contradictory to written instrument and hence inadmissible). See also Loveless v. Sun Steel, 206 Ga. App. 247, 248-249 (1) (424 SE2d 887) (1992). Moreover, “[p]arol evidence of a mere understanding arrived at subsequent to the contract as to the meaning of the prior writing is inadmissible.” Green, Ga. Law of Evidence (4th ed.), § 216, citing Hawkins v. Studdard, 132 Ga. 265, 274 (6) (63 SE 852) (1909). Particularly when a contract contains a merger clause, parol evidence is inadmissible to challenge the unambiguous terms of the contract, and parol evidence of collateral oral agreements is properly excluded. Leventhal v. Seiter, 208 Ga. App. 158, 162 (4) (430 SE2d 378) (1993).

Ocmulgee contends that the information about past agreements was admissible as “background evidence,” citing Powell v. Ferguson Tile & Terrazzo Co., 125 Ga. App. 683, 687 (3) (188 SE2d 901) (1972), overruled on other grounds, Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 540 (314 SE2d 903) (1984), and Hodnett v. Hodnett, 99 Ga. App. 565 (1) (109 SE2d 285) (1959). Those decisions are inapposite here. Powell allowed parol evidence to prove the real party in interest to a contract, but noted explicitly: “Where it does not vary the terms of a contract evidence is admissible to show for whose benefit the contract was made or the real party at interest. [Cits.]” (Emphasis supplied.) 125 Ga. App. at 687 (3). Hodnett involved relevance rather than hearsay; it states only: “Evidence which may itself be irrelevant may nevertheless be so interwoven with relevant testimony as to require its admission in elucidation of the relevant testimony. [Cits.]” 99 Ga. App. at 567 (1). Neither of those cases is authority for the admission for “background purposes” of parol evidence varying the express terms of a written agreement containing a merger clause.

Nor can testimony regarding the modification of other, separate contracts constitute evidence of a “mutual departure” from this contract within the meaning of OCGA § 13-4-4. “Any evidence of a departure from the terms of previous [contracts] has no bearing upon the outcome of the case sub judice.” Minor v. C & S Nat. Bank, 177 Ga. App. 115, 118 (1) (338 SE2d 466) (1985); see also Wright Carriage Co. v. Business Dev. Corp. &c., 221 Ga. App. 49, 52 (471 SE2d 218) (1996) (“Any evidence of mutual departure from the terms of the original [agreements] has no bearing upon the controversy concerning the new agreement.”). Any other interpretation would render meaningless the separately negotiated extension clauses and the merger clauses contained in the franchise agreements. Evidence of an understanding contradictory to the clear and express terms of the franchise agreements was inadmissible, and the trial court erred in admitting this testimony. Because under the facts of this case, the admission of this evidence was not harmless error, the judgment on the jury’s verdict must be reversed and a new trial granted as to the breach of contract count.

2. Choice also complains of the trial court’s refusal to instruct the jury on the defense of privilege to Ocmulgee’s claim of tortious interference with contractual rights and its refusal to direct a verdict in Choice’s favor on this issue. The tortious interference claim was based on Choice’s letter to Holiday Inn stating that Ocmulgee was still under contract with Choice.

“To support a verdict for tortious interference with business relations the evidence must show the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” (Citations and punctuation omitted.) Arford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991), aff’d sub nom., Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992). “Only the intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action will lie. To authorize such a verdict, the evidence must show that the defendant acted improperly and without privilege.” (Citations, punctuation and emphasis omitted.) Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 97 (3) (421 SE2d 550) (1992).

The particular privilege applicable here is the protection of the speaker’s interest under OCGA § 51-5-7 (3). This privilege, while primarily applicable to claims of libel or slander, may also be asserted as a defense to a claim of tortious interference with contractual relations. See Kitchen Hardware, supra. “[Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which he is concerned are privileged. OCGA § 51-5-7 (3).” Id. at 96. “ ‘To make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.’ [Cit.]” Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124) (1981).

Choice’s communication to Holiday Inn falls within the scope of this privilege. The retention of Ocmulgee in an existing franchise agreement, despite Ocmulgee’s contention that Choice was in breach of the agreement, constituted a valid interest that Choice was entitled to uphold. The single letter directed to Holiday Inn to inform it of Choice’s pre-existing contract was made on a proper occasion, its publication was limited to those concerned (Choice, Holiday Inn, and Ocmulgee), and it was properly limited in scope. Compare Southern Business Machines &c. v. Norwest &c., 194 Ga. App. 253, 258-260 (3), (4) (390 SE2d 402) (1990) (demand letters from collection agency under assignment agreement with plaintiff held privileged under OCGA § 51-5-7 (3), but over 50 harassing telephone calls in short time to single customer created jury issue as to reasonableness).

Moreover, at the time Choice sent the letter, Ocmulgee not only had threatened litigation but had actually filed suit in this matter. In Auer v. Black, 163 Ga. App. 787 (294 SE2d 616) (1982), the plaintiff alleged libel in the report of a physician evaluating her workers’ compensation claim. This Court first noted that “the statements in the narrative report were made by the doctor in the performance of his duties, public and private, and were made to protect his own interest in the matter. [Cit.]” 163 Ga. App. at 789. Holding that “[t]he report was also pertinent and material to the claim for workers’ compensation, a legal matter, already filed by the claimant,” and was moreover “invited libel,” this Court affirmed the award of summary judgment in favor of the defendants. Id. This privilege of protecting the speaker’s interest in pending litigation is equally applicable to a claim for tortious interference. Kitchen Hardware, supra.

“Generally, the burden of proof lies on the plaintiff to show actual malice in order to rebut prima facie evidence of the defense of conditional privilege. [Cit.] The record reveals that the letter . . . was written in the normal course of business in an effort to resolve a bona fide dispute between two parties concerning their respective rights. As such, the communication clearly falls within the purview of OCGA § 51-5-7 (3) which bestows privilege on communications ‘made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned.’ [Cit.] There is no evidence in the record to support an allegation that appellee acted with actual malice.” Layfield v. Turner Advertising Co., 181 Ga. App. 824, 826 (354 SE2d 14) (1987). The trial court erred in refusing to direct a verdict in favor of Choice on Ocmulgee’s tortious interference claim.

3. Choice’s remaining enumerations of error are rendered moot by our holdings in Divisions 1 and 2. We note, however, that should a retrial of the breach of contract claim result in the consideration of the award of attorney fees under the terms of the contract, the trial court should follow the appropriate standard of proof as established under Maryland law. See Maxima Corp. v. 6933 Arlington Dev. &c., 641 A2d 977, 983 (Md. App. 1994) (trial court’s evaluation of attorney fees must be supported by sufficient and competent evidence of record). See also Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993) (allocation of time and expense among successful and unsuccessful claims must be established in evidentiary hearing).

Decided June 24, 1996

Reconsideration denied July 11, 1996

Jones, Cork & Miller, Thomas C. James III, for appellant.

Troutman Sanders, John J. Dalton, Martin, Snow, Grant & Napier, Cubbedge Snow III, for appellee.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

       We note that Holland's presence as a party destroyed diversity for federal jurisdiction purposes.

       The franchise agreements provide for the award of attorney fees to “the prevailing party (as determined by the Court).”

       The franchise agreements provide that they “shall be governed and construed according to the laws of the State of Maryland.’


author: Birdsong, Presiding Judge.

text:
    A96A0046.
    CINCINNATI INSURANCE COMPANY v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    (474 SE2d 78)
   Birdsong, Presiding Judge.

St. Paul Fire & Marine Insurance Company seeks indemnification and/or contribution from Cincinnati Insurance Company for sums expended by St. Paul in the defense and settlement of a lawsuit against Dr. Muhanna.

Cincinnati issued a homeowner’s insurance policy to Dr. Muhanna and subsequently sent an insurance policy renewal bill to him. The policy contained an auto endorsement which included primary coverage of $300,000 per occurrence on an Oldsmobile Dr. Muhanna owned. On the date on which coverage under the renewal policy was to begin, Dr. Muhanna applied for, and St. Paul issued, an insurance policy which also included $300,000 in primary coverage on the Oldsmobile.

Several days later, Dr. Muhanna’s wife was involved in an automobile accident with Weatherford. She was driving the Oldsmobile, which Dr. Muhanna had furnished to her for a family purpose. After-wards, and within the grace period provided for by the terms of the policy for payment of the insurance premium, Cincinnati received payment from Dr. Muhanna for renewal coverage on the auto endorsement. When Cincinnati was notified of the St. Paul policy, it considered its policy had terminated and advised Dr. Muhanna that his premium was being refunded.

Prior to the incident giving rise to this suit, Cincinnati, in addition to its automobile endorsement provision in the homeowner’s policy, also issued a personal umbrella liability endorsement to Dr. Muhanna with policy limits of $1,000,000.

Weatherford and his wife sued Dr. and Mrs. Muhanna for damages resulting from the collision. Cincinnati refused to participate in the defense or settlement of the suit. St. Paul assumed the defense, paid $153,550 in settlement of all claims, and incurred $3,608.90 in defense costs.

In this action, Cincinnati and St. Paul filed cross-motions for summary judgment. Cincinnati asserted that its coverage terminated on the effective date of the St. Paul policy pursuant to an automatic termination clause in its policy and subsection (g) of OCGA § 33-24-45. St. Paul countered that subsection (g) is inapplicable and that Cincinnati either is liable for all the costs or must share on a pro rata basis. The trial court granted St. Paul’s motion for summary judgment and denied Cincinnati’s motion, ruling that Cincinnati’s policy was in effect on the date of the collision and that Cincinnati is liable for all settlement and defense costs. Held:

1. Cincinnati had no liability because its policy coverage of Dr. Muhanna’s Oldsmobile terminated by its own terms on the effective date of the St. Paul insurance policy.

In Ector v. American Liberty Ins. Co., 138 Ga. App. 519, 521 (1) (226 SE2d 788), this Court held that “the procurement of new insurance as an intended substitution for an existing policy does not constitute an effective cancellation of the policy unless the terms of the policy specifically provide for cancellation in this manner or the parties have otherwise mutually agreed upon this method of cancellation.” The Cincinnati policy in its effect contains just such terms: “If you obtain other insurance on your covered auto, any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance.” This provision is consistent with Georgia law: “Notwithstanding the failure of an insurer to comply with this Code section, termination of any coverage under the policy either by cancellation or nonrenewal shall be effective on the effective date of any other policy providing similar coverage on the same motor vehicle or any replacement of coverage.” (Emphasis supplied.) OCGA § 33-24-45 (g).

The contention that OCGA § 33-24-45 (g) is not applicable because neither Cincinnati nor Dr. Muhanna attempted to effect a termination or nonrenewal is not supported by the record or our construction of an allegedly similar Code section (former OCGA § 33-34-11 (a) (1)). Under the terms of this policy, Dr. Muhanna effected a termination of the applicable coverage of the policy when he procured the St. Paul coverage on his car. Dr. Muhanna had a legal duty to read his policy (McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 690 (359 SE2d 745)), and therefore he is presumed to know the policy coverage would terminate when he obtained similar coverage on his car. Thus, when he procured the St. Paul policy to be effective at the conclusion of the Cincinnati policy, he effected a nonrenewal or termination of that portion of the Cincinnati policy pertaining to the coverage of his Oldsmobile. Dr. Muhanna may not have intended to be affected by the result of this provision when he purchased the policy, but by his acceptance and retention of the policy with this provision, he became bound by Cincinnati’s clear and unequivocal intent. Further, the policy provision at issue is more than a mere escape clause; rather, it unequivocally conveys on its face the intent of Cincinnati to provide for such partial policy termination in the event other insurance was obtained on the covered vehicle. “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” OCGA § 13-2-4; Borders v. Global Ins. Co., 208 Ga. App. 480, 483 (2) (430 SE2d 854). In any event, attempted compliance with OCGA § 33-24-45 was not required. See Walter v. Allstate Ins. Co., 206 Ga. App. 186, 187 (424 SE2d 866).

Cincinnati is authorized to fix the terms of its policy as it wishes as long as the terms are not contrary to law (Ga. Const, of 1983, Art. I, Sec. I, Par. X), and when the terms of the policy are clear and unambiguous, the courts cannot deviate from the terms of the policy to reach a result not intended by the policy. Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12, 13 (372 SE2d 9). The terms of this policy are plain and obvious, and must be given their literal meaning. United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428). Therefore, we find that the portion of the Cincinnati policy providing coverage of the Oldsmobile was terminated in accordance with its terms and our law.

2. Because we find that the pertinent portion of the Cincinnati policy was terminated before any liability accrued, no issue is presented on whether Cincinnati had some obligation to share in St. Paul’s settlement costs or litigation expenses.

3. The personal umbrella liability endorsement issued by Cincinnati provides: “We will pay on behalf of anyone covered by this endorsement: 1. Excess insurance over and above the amounts provided for in basic policies, or 2. Damages arising out of claims or legal actions anywhere in the world covered by this endorsement which are either excluded or not covered under your basic policies.” In Atkinson v. Atkinson, 254 Ga. 70, 77 (7) (326 SE2d 206), the Supreme Court held that: “ ‘[u]mbrella coverages, almost without dispute, are regarded as true excess over and above any type of primary coverage, excess provisions arising in regular policies in any manner, or escape clauses.’ ” (Citation omitted.) The Cincinnati umbrella liability endorsement provides for only excess coverage regarding any claims covered under the basic St. Paul insurance policy.

Decided June 26, 1996

Reconsideration denied July 11, 1996

Berlon & Timmel, James T. Perry, for appellant.

Tittsworth, Grabbe & Spillers, Jennie E. Rogers, for appellee.

In view of the above holdings, we find the trial court erred both in granting summary judgment to appellee and in denying summary judgment to appellant. Judgment is reversed and the case remanded with direction that the trial court enter summary judgment on behalf of appellant Cincinnati.

Judgment reversed and case remanded with direction.

Beasley, C. J., McMurray, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A96A0264.
    LOYD v. THE STATE.
    (474 SE2d 96)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with four counts of child molestation and one count of incest for acts committed against J. L. L. (“the child” or “the victim”), his minor granddaughter. The evidence adduced at a jury trial reveals that the victim, when she was less than eight years of age, informed her mother that defendant had been molesting her. The child’s mother testified that the child informed her that defendant would take her to a bread truck “beside their barn in their yard . . .” and that defendant would there “let her act like she was driving, and let her sit in his lap; and he would put . . . his hands down in her panties and play with her pee-pee and rub on it. . . .”

Karen Spangler, a caseworker employed with the Fayette County Department of Family & Children Services at the time of the interview of the victim, interviewed the victim about the sexual abuse. Using anatomical dolls, the victim ’’pulled the doll’s dress up and pointed . . ., and she said [to Karen Spangler], he touched me in my privates.” The victim also informed Spangler that “it happened many times that [defendant] touched her inside her clothing with his hand and that it hurt.” Spangler testified that the victim remembered first experiencing defendant’s sexual advances “between the ages of six and seven . . .” and that the victim “indicated that she was told by her grandfather not to tell.”

Karen Spangler later interviewed the victim’s stepsister and discovered that the victim’s story checked out. The victim’s stepsister, who was also seven years of age at the time, reported that defendant had molested her. Indeed, the victim’s stepsister not only affirmed to Spangler that defendant had sexually abused her, but informed Spangler that defendant had sexually abused her while she and the victim were sleeping with defendant in his bed.

Dr. Alina Batlle, a pediatrician, performed a “close examination of the [the victim’s] genital area, [and discovered that the child] did have what [Dr. Batlle] described as a somewhat enlarged vaginal opening. [Dr. Batlle testified that while a] somewhat enlarged [vaginal] opening is basically a non-specific finding[, such a condition on a seven-year-old child] could be related to multiple causes, [including] some type of penetration,” such as digital penetration. Dr. Batlle also noted that the child had a “partially perforated hymen . . .” and related the child’s statement, “that she had been touched in her private areas by her grandfather, whom she called Dada at the time.”

The jury acquitted defendant of incest but found him guilty of the four counts of child molestation. His motion for new trial was denied, and this appeal followed. Held:

1. In his second enumeration of error, defendant contends the trial court erred in admitting evidence of a prior act of child molestation he allegedly committed against a playmate of another of his granddaughters.

D. R. C. testified that, when she was approximately ten years old, defendant told her to sit in his lap as defendant sat on the front steps of his mother’s house. Defendant placed “both of his arms around [her], and [they] sat there for just a little bit longer; and then he kept one arm around [her], and he slipped — with his other arm, he put his hand inside of [her] panties. And when he did that, [she] tried to jump up and run, and he took his arm and he pulled [her] back and went — uh — (indicating) — like that. And when he put his hands inside [her] panties, he slipped his finger inside [her] . . . and started stroking his finger inside [her].” This event took place “about 20 years ago . . . somewhere around 1972.” Over defendant’s objection that an event from 20 years ago was too remote, the trial court allowed this evidence “to show the lustful disposition and the method or manner of the way in which [defendant] is alleged to have committed this crime. . . .”

Defendant relies on Gilstrap v. State, 261 Ga. 798 (1), 799 (1) (b) (410 SE2d 423), where the Supreme Court of Georgia held that “an event 31 years in the past is too remote,” and reversed that defendant’s multiple convictions for child molestation and aggravated child molestation. In our view, evidence of an indecent liberty with a ten-year-old child, identical to the acts alleged in the indictment, is not too remote as a matter of law merely because it occurred twenty years previously. Snow v. State, 213 Ga. App. 571, 572 (2) (445 SE2d 353); Moore v. State, 207 Ga. App. 412, 414 (1), 415 (1) (b) (427 SE2d 779). See also Cooper v. State, 173 Ga. App. 254 (1), 255 (325 SE2d 877), cited with approval in Gilstrap v. State, 261 Ga. 798 (1), 799 (1) (b), supra. In the case sub judice, the trial court did not err in admitting this evidence of a. similar extrinsic act.

2. In his first enumeration of error, defendant contends the trial court erred in failing to charge the jury at the close of the evidence “ON THE PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT.” In this regard, the record shows that the trial court gave preliminary instructions which included the presumption of innocence and the State’s burden to show proof of guilt beyond a reasonable doubt. After closing arguments two days later, the trial court reminded the jury that “at the beginning of the trial I gave you some instructions and I will ask you to apply those instructions equally with the instructions I am about to give you. . . Thereafter, the trial court again charged that “the burden is on the State to prove beyond a reasonable doubt, as I have previously defined that term to you, each and every material allegation as set out in this bill of indictment; and a failure to prove any of the essentials of any charges would require an acquittal.” The trial court did not repeat the instruction on the presumption of innocence and reasonable doubt contained in defendant’s written request to charge, which appears to have been taken from the pattern charge of the Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II, Part 2, Suggested General Charges Required in all Criminal Cases, D (2nd ed. 1991) (rev. July 1992).

(a) “Although [the State contends that] defendant waived [these] exceptions to the charge by failing to preserve them after [making certain exceptions in response to] direct inquiry by the trial court, [defendant did except to the failure to charge on the definition of reasonable doubt. Consequently,] we will review this enumeration pursuant to OCGA § 5-5-24 (c), since proof beyond a reasonable doubt is the ‘true question’ involved in a criminal trial. OCGA § 24-4-5. See also OCGA § 16-1-5.” Tyson v. State, 217 Ga. App. 428, 429 (2) (a) (457 SE2d 690).

(b) We agree with defendant that the trial court erred in failing to fully reinstruct the jury at the close of the evidence with regard to the presumption of innocence and reasonable doubt. Under the authority of Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794), the procedure of giving such instructions before trial, without repeating the charge at the close of evidence, is error. Just as the Supreme Court held in Griffith, however, we find it highly probable in the case sub judice that the trial court’s failure to repeat the above jury instructions in the final charge did not contribute to the judgment. Accordingly, the error was harmless and thereby does not require a new trial. Griffith v. State, 264 Ga. 326 (2), 327, supra.

Decided June 27, 1996

Reconsideration denied July 11, 1996

Robert G. Fierer, Colette B. Resnik, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, J., concurs. Ruffin, J, concurs in the judgment only.


author: Beasley, Chief Judge.

text:
    A96A0326.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. DRURY.
    (474 SE2d 64)
   Beasley, Chief Judge.

State Farm appeals the denial of its motions for directed verdict and judgment notwithstanding the verdict, OCGA § 9-11-50 (a), after a jury verdict in Drury’s favor.

Drury was involved in an automobile collision on the evening of November 7, 1989, and filed a claim for coverage. State Farm denied coverage on the ground that it had cancelled Drury’s policy effective 12:01 a.m. that very day for non-payment of premium.

In August 1984, State Farm issued an automobile policy to Drury, who successively renewed the policy every six months. The policy period in question began July 27,1989, and was to continue for six months through January 27, 1990. Drury had elected a premium payment plan whereby he was to pay half of the six-month premium in July and the other half in October, plus a $2 fee for splitting the premium. It was State Farm’s practice to generate a notice when each payment was coming due. Drury did not make the July payment on time, and State Farm cancelled his policy on August 21, 1989. Nine days later, Drury made payment in the amount of $185.93, which represented half of the premium for that policy period, plus the $2 fee, and the policy was reinstated on August 30, 1989.

State Farm contends it generated and mailed the next premium due notice for the October payment on September 5, but Drury maintains he never saw this bill. State Farm received no payment for the October installment and issued a cancellation notice on October 25, 1989, specifying a cancellation date of November 7, 1989, at 12:01 a.m. Drury was not living at the address State Farm had on file at the time the notice of cancellation would have been delivered because he and his wife had separated on October 22, and he had not notified State Farm of the address change. Drury’s estranged wife testified by deposition that she forwarded all of Drury’s mail to him.

Drury’s policy provided, “The coverages you chose apply to accidents and losses that take place during the policy period. The policy period is shown under ‘Policy Period’ on the declarations page and is for successive periods of six months each for which you pay the renewal premium. Payments must be made on or before the end of the current policy period. The policy period begins and ends at 12:01 A.M. Standard Time at the address shown on the declarations page.” The declarations page is not in evidence.

1. A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence and all reasonable deductions or inferences therefrom demands a particular verdict. Carden v. Burckhalter, 214 Ga. App. 487 (1) (448 SE2d 251) (1994) . The same is true for a motion for j.n.o.v. OCGA § 9-11-50 (a); St. Mary’s Hosp. &c. v. Cohen, 216 Ga. App. 761 (1) (456 SE2d 79) (1995) . The standard of review of a trial court’s denial of a motion for a directed verdict is the “any evidence” standard, and the evidence is construed most favorably toward the party opposing the motion. Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991).

In order to create a presumption that the insured received the premium due notice, the law requires proof that the notice was placed in an envelope properly addressed to the insured’s last known address, with correct postage affixed, and duly mailed in the United States Post Office. Watkins Products v. England, 123 Ga. App. 179, 181 (180 SE2d 265) (1971). State Farm offered no evidence that the September 5 notice was in fact so mailed, and thus it was not entitled to the benefit of the favorable presumption. American Express &c. Co. v. Berlye, 202 Ga. App. 358, 360 (2) (414 SE2d 499) (1991). The closest evidence was from the deposition of an operations supervisor for State Farm who was not present at trial, the following portion of which was read to the jury: “We generated a balance due [on Drury’s policy] on September 1st, 1989. It would have been mailed September 5, 1989, because there was a long weekend involved that particular weekend. It would have been mailed the next working day, which was September 5th, 1989, and the balance due date was October 5th, 1989.” This testimony does not prove that State Farm mailed the notice to Drury, or when. No witness testified from personal knowledge of such facts. Nationwide Mut. Ins. Co. v. Barnes, 108 Ga. App. 643 (134 SE2d 552) (1963). Nor did any properly admitted business record show it.

State Farm contends a “Premium History” for Drury’s policy submitted into evidence is further proof that State Farm generated a September 1 notice and mailed it on September 5. Although State Farm never properly identified this document as a business record or made any attempt to lay a foundation for it, and it would have been properly excluded as hearsay under OCGA § 24-3-14, the trial court admitted it over Drury’s objection. Nothing in the document suggests that a notice was generated or mailed, and neither September 1 nor 5 is mentioned.

Evidence of nonreceipt of the notice is admissible as a circumstance as to whether the notice was mailed. New Amsterdam Cas. Co. v. Russell, 102 Ga. App. 597, 601 (2) (117 SE2d 239) (1960). State Farm contends Drury gave equivocal testimony about receiving the premium balance due notice at issue, and thus the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), should apply: ££[T]he testimony of a party who offers himself as a witness in his own behalf at trial £££is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” ’ [Cits.] Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. [Cit.]” Id.

Two months after the accident, in response to questioning by a State Farm adjuster as to whether he received the premium notice, Drury had replied, “I never saw it, no.” Drury responded to State Farm’s questioning on cross-examination at trial that when he said during deposition he may have received the September notice, he was merely speculating. This statement could be regarded as contradictory or equivocal. But even applying the rule in Prophecy Corp., the testimony that he might have received it does not establish that State Farm sent the notice by proof it was received.

Drury testified he had come to rely on the notices of previous balance due, regularly sent, to tell him when the premium was due. ££[A]n insurance company which by a course of dealing leads an insured to rely upon notice from the company as to the due date of premium payments is estopped to complain of a late payment caused by its failure to give such notice in a particular instance.” Forrester v. State Farm Mut. Ins. Co., 97 Ga. App. 618, 619 (3) (103 SE2d 619) (1958), citing Grant v. Alabama Gold Life Ins. Co., 76 Ga. 575, 583 (5) (c) (1886). The effect of the failure of the insurer to give notice precludes cancellation of the policy if the insured’s premium payment is late. Id. at 583 (5) (b). “The rule should be rigidly applied where the result of not coming up to the exact date works a forfeiture of all past payments as well as of the entire contract.” Id. Drury’s policy was thus not cancelled as a matter of law at the time State Farm attempted to cancel it. Since State Farm submitted no conclusive evidence it sent Drury the September premium balance due notice, the trial court did not err in denying State Farm’s motion for a directed verdict on this issue or in refusing j.n.o.v.

2. Contrary to State Farm’s contention, it was not error for the court to instruct the jury that “where an insurance company by a course of dealing leads an insured to rely upon notice from the company as to the due date of premium payments the company is estopped to complain of a late payment caused by its failure to give notice in a particular instance.” The charge, taken from Grant, supra, and Forrester, supra, is a correct statement of the law and, as demonstrated in Division 1, is applicable.

3. State Farm contends that it presented uncontroverted evidence that it followed the requirements in OCGA §§ 33-24-44 and 33-24-45 for cancellation of the insurance policy with respect to the cancellation notice issued October 25, which was to be effective November 7. See Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621, 623 (1) (204 SE2d 317) (1974). But State Farm was not entitled to cancel the policy without first having given Drury notice that his premium payment was due. Grant, supra. Although similar to Timely Entertainment Intl. v. State Farm &c. Co., 208 Ga. App. 467, 469 (430 SE2d 844) (1993), cited by State Farm, the case is distinguishable because those parties did not dispute that State Farm mailed the premium notice and that a premium due date had been established by custom and practice.

“[A]n insurance policy may be cancelled by the insurer for failure of the named insured to discharge ‘when due’ any of [his] obligations in connection with the payment of premiums for the policy.” Pennsylvania Nat. &c. Ins. Co. v. Person, 164 Ga. App. 488, 489 (297 SE2d 80) (1982). In Person, the Court held: “[N]otice of cancellation was given before the premium was due. There was no reason to cancel the policy until after the premium became due and payable. Thus, the insured is entitled under statute to notice of cancellation for failure to pay [his] premium when due and at least a ten day grace period prior to the effective date of the cancellation. [Cit.]” (Emphasis omitted.) Id. at 489 (1). As in Person, the notice of cancellation was not given to Drury upon his failure to pay the premium “when due.” State Farm could not declare the premium due without giving notice.

State Farm urges that Person does not apply because the policy expired by its terms when Drury failed to pay the premium. Drury’s obligation to pay was dependent on notice, and cancellation is dependent on nonpayment after notice. Wheeler v. Standard Guaranty Ins. Co., 168 Ga. App. 565, 568 (309 SE2d 805) (1983). The October 25 notice of cancellation was ineffective because the premium was not yet “due.” At most, it operated merely as a “demand for payment” in accordance with Person. “The notice requirements of the statutes regarding cancellation of insurance policies are mandatory and require strict compliance and failure to adhere to the requirements results in noncancellation of the policy.” Person, supra at 490. The trial court did not err in denying State Farm’s motion for a directed verdict on this issue.

4. State Farm contends the trial court erred in reading to the jury the following request to charge: “I charge you that a notice of cancellation which states that a policy will be cancelled on a specified date unless premiums due are paid prior to that date, is not a notice of cancellation, but merely a demand for payment.” As discussed in Division 3, the charge is derived from Person, supra at 489, and Timely, supra at 469, and is a correct statement of the applicable law.

5. State Farm contends the trial court erred in granting Drury’s motion in limine relating to Drury’s history of tardy payment of his bills, particularly his premiums to State Farm. State Farm also argues it was unfair for the court to have given Drury’s charge on State Farm’s course of dealing in sending out premium due notices while excluding evidence of Drury’s course of conduct in paying his bills late. “Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, [cit.], and in the absence of an abuse of judicial discretion, this court will not interfere with the trial court’s ruling. [Cit.]” (Punctuation omitted.) Gully v. Glover, 190 Ga. App. 238, 242 (4) (378 SE2d 411) (1989).

OCGA § 24-2-2 provides, “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” “ ‘Similar acts or omissions on other and different occasions are not generally admissible to provide like acts or omissions at a different time or place. (Cit.)’ [Cit.] However, such testimony may be admitted if relevant to an issue in the case and if the evidence ‘does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise. (Cits.)’ [Cits.]” DiMarco’s, Inc. v. Neidlinger, 207 Ga. App. 526 (428 SE2d 431) (1993). This evidence was marginally relevant, if relevant at all, and it was not reversible error to exclude it.

6. State Farm contends the court erred in allowing a type-written recorded statement of Drury made by a State Farm claims adjuster within a few weeks of the incident to be given to the jury for its deliberations. Appellant cites several cases, including Goins v. Glisson, 163 Ga. App. 290, 292 (2) (292 SE2d 917) (1982), as support. Each such case deals only with exclusion of pleadings and responses to discovery requests. State Farm argues that, since Drury was present and testifying in the courtroom, there should be the same concern with admission of this typewritten statement in that it creates an “unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1905).

The typewritten report “was not ‘written testimony’ as, for example, a deposition is. The written deposition is merely prerecorded testimony and, when the questions and answers are read to the jury during the course of the trial, the answers become the testimony and there is no need to duplicate that testimony ... in its written form. . . . [T]o do so is error because of the added emphasis and therefore unfair advantage the twice-submitted evidence is given.” Vinyard v. State, 177 Ga. App. 188, 189 (338 SE2d 766) (1985). Documents “recorded with the judicial process in mind,” such as pleadings and responses to discovery requests, are generally not allowed to go out with the jury. Id. The typewritten report, which State Farm conceded was not prepared in anticipation of trial, also does not constitute “written testimony” and thus was not improperly submitted to the jury. See also Whitehead v. Seymour, 120 Ga. App. 25, 27 (2) (169 SE2d 369) (1969).

7. State Farm maintains the court erred in not permitting the live testimony on direct examination of Maryann Rosemond, an operations supervisor for State Farm, whom counsel presented as the insurer’s representative at trial. Rosemond was in attendance during all of the proceedings. The rule of sequestration had been invoked at the beginning of trial, see OCGA § 24-9-61, and Rosemond had already testified on cross-examination. The court found that Rosemond, along with other State Farm witnesses, had violated the rule by meeting together with State Farm counsel during a recess.

“[A] ruling of the trial court either admitting or excluding the testimony of a sequestered witness will not be disturbed in the absence of an abuse of discretion.” Dowdy v. State, 154 Ga. App. 700 (269 SE2d 530) (1980). A witness who has violated the rule of sequestration in a criminal trial may not be prevented from testifying, Jordan v. State, 247 Ga. 328 (276 SE2d 224) (1981), but there is conflict in case law relating to civil trials. Compare Kenney v. Piedmont Hosp., 136 Ga. App. 660, 666 (7) (222 SE2d 162) (1975), with McCartney v. McCartney, 217 Ga. 200, 202 (7) (121 SE2d 785) (1961). See also Bean v. Landers, 215 Ga. App. 366, 369 (3) (450 SE2d 699) (1994).

Even if preclusion constituted error, it was harmless. See Kenney, supra. Rosemond’s testimony on cross-examination was already in evidence, and although State Farm’s counsel asked to make an offer of proof, he did not show what he intended to prove by the testimony or that the testimony would be material, relevant or beneficial to State Farm. Foster v. Nat. Ideal Co., 119 Ga. App. 773 (1) (168 SE2d 872) (1969). “[A] case will not be reversed merely because error may have occurred. Appellant is required to show harm as well as error to prevail on appeal [cit.], and this appellant must show by the record as harm cannot be established by unsupported assertions . . . [cit.]. The record in this case reflects that appellant made no proffer” as required. Hertz Corp. v. McCray, 198 Ga. App. 484 (402 SE2d 298) (1991).

8. The final enumeration of error is the court’s failure to direct a verdict on the issue of bad faith penalties and attorney fees. OCGA § 33-4-6. “ ‘Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact. (Cit.) Where the question of liability is close and the facts are disputed so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted. (Cit.) “The test of bad faith within the meaning of the law in such cases is as of the time of trial, in the final analysis, and not at the time of refusal to pay upon demand. Whatever the facts are at the time of such refusal to pay if at the trial there was a reasonable ground for the insurer to contest the claim there can be no finding against the insurance company for bad faith and attorney’s fees regardless of the outcome of the case.” (Cit.) In determining whether the evidence is sufficient to support the verdict, “(t)he proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” (Cit.)’ [Cits.]” Mass. Bay Ins. Co. v. Hall, 196 Ga. App. 349, 355 (3) (395 SE2d 851) (1990).

When Drury notified State Farm of his accident and discovered State Farm had cancelled his policy, he informed the insurer that he never received the premium balance due notice. State Farm could produce nothing from its records that indicated it had sent Drury this notice — no copy of the notice and no computer record that notice was sent — yet the company continued to refuse to pay Drury’s claim. The jury was correctly charged on this issue, as a paraphrase of OCGA § 33-4-6 and the definition of “bad faith” from Cimarron Ins. Co. v. Pace, 212 Ga. 427, 430 (1) (93 SE2d 593) (1956). Based on the evidence and accurate guidance to consider it, the jury was authorized to find that State Farm’s refusal to pay the loss sustained by Drury and covered by the terms of his insurance contract constituted bad faith, and thus to award penalties and attorney fees. Nationwide, supra at 645.

9. Drury’s motion for frivolous appeal is denied.

Decided June 25, 1996

Reconsideration denied July 11, 1996.

Greer, Klosik & Daugherty, Robert J. McCune, for appellant.

Saveli & Williams, Edward L. Saveli, for appellee.

Judgment affirmed.

Blackburn, J., concurs. Birdsong, P. J., concurs in the judgment only.

       Drury argues he was covered because of amounts he had previously paid. Each party disputes the other’s arithmetic. We need not decide this issue since we find the policy was not cancelled as a matter of law.